Racial Taxation: Schools, Segregation, and Taxpayer Citizenship, 1869–1973

Racial Taxation

Racial Taxation

Schools, Segregation, and Taxpayer Citizenship, 1869–1973

Camille Walsh

The University of North Carolina Press  CHAPEL HILL

This book was published with the assistance of the Authors Fund of the University of North Carolina Press.

© 2018 The University of North Carolina Press

All rights reserved

Set in Espinosa Nova by Westchester Publishing Services

Manufactured in the United States of America

The University of North Carolina Press has been a member of the Green Press Initiative since 2003.

Library of Congress Cataloging-in-Publication Data

Names: Walsh, Camille, author.

Title: Racial taxation : schools, segregation, and taxpayer citizenship, 1869–1973 / Camille Walsh.

Description: Chapel Hill : University of North Carolina Press,

[2018]

| Includes bibliographical references and index.

Identifiers: LCCN 2017021190 | ISBN 9781469638935 (cloth : alk. paper) | ISBN 9781469638942 (pbk : alk. paper) | ISBN 9781469638959 (ebook)

Subjects: LCSH: Educational equalization—United States. | African Americans—Education—United States—History. | Segregation in education—United States. | Taxation—United States. | Education—United States—Finance—History.

Classification: LCC LC213.2 .W26 2018 | DDC 379.2/6—dc23

LC record available at https://lccn.loc.gov/2017021190

Cover illustration: Clinton, TN. School integration conflicts (1956) by Thomas J. O’Halloran (courtesy of the U.S. News & World Report Magazine Photograph Collection, Library of Congress Prints and Photographs Division, LG–DIG–ppmsca-03089).

Portions of chapter 5 were previously published as White Backlash, the ‘Taxpaying’ Public, and Educational Citizenship, Critical Sociology 43, no. 2 (2017): 237–47. Portions of chapter 7 were previously published as "Erasing Race, Dismissing Class: San Antonio Independent School District v. Rodriguez," La Raza Law Journal 21 (2011): 133–71; in Rodriguez in the Court: Contingency and Context, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, ed. Charles J. Ogletree Jr. and Kimberly Jenkins Robinson (Cambridge, MA: Harvard Education Press, 2015); and in " ‘The Poor People Have Lost Again’: San Antonio Independent School District v. Rodriguez (1973)," in Poverty Law Canon: Exploring the Major Cases, ed. Marie Failinger and Ezra Rosse (Ann Arbor: University of Michigan Press, 2016). All material used here with permission.

For Peggy,

for all my teachers and my students,

and for all those who fight for public education and justice

Contents

Acknowledgments

Introduction

Taxpayer Citizenship and the Right to Education

CHAPTER ONE

A Shabby Meanness

Origins of Unequal Taxation

CHAPTER TWO

Let Them Plow

Beyond the Black-White Paradigm

CHAPTER THREE

We Are Taxpaying Citizens

Separate and Color-Blind

CHAPTER FOUR

A Drain on Taxpayers

Graduate School Segregation and the Road to Brown

CHAPTER FIVE

The White Man’s Tax Dollar

Segregationists and Backlash

CHAPTER SIX

Taxpayers and Taxeaters

Poverty and the Constitution

CHAPTER SEVEN

The Rich Richer and the Poor Poorer

Intersectional Claims

Conclusion

Education, Inequality, and the Hidden Power of Taxes

Notes

Bibliography

Index

Acknowledgments

I am a proud product of a public school education, and my ability to engage and be inspired by my teachers was the direct result of the public tax funds that paid their salaries, built my classrooms, and bought the textbooks that opened up the world for me outside my small rural town. I am also the result of the taxpayer money that fed, sheltered, and clothed me through much of my childhood from programs like Aid to Families with Dependent Children, as well as the federal grants and loans that allowed me to pursue higher education at public and private universities I couldn’t have imagined existed as a child. Having spent much of my life as a taxeater, I am compelled to first acknowledge the many people whose participation in a faceless system of public taxation gave me the capacity to grow, learn, and become who I am. This book is one small dividend from that investment.

My adviser, Peggy Pascoe, passed away shortly after she chaired my dissertation defense, and her wisdom and guidance on everything from research to revising to teaching to mentoring still reverberate with me every single day. She was an astonishingly generous and thoughtful scholar, mentor, and teacher, and this book is dedicated to her memory. I also owe an enormous debt of gratitude to my many graduate school teachers, mentors, and colleagues, including Ellen Herman, Joe Lowndes, and James Mohr, who each supervised me with grace and insight, and Chris Brooks, Matthew Dennis, Margaret Hallock, Torrie Hester, Elizabeth Medford, Daniel Pope, Elizabeth Reis, Veta Schlimgen, Martin Summers, and many others. Thanks to the Mellon Foundation, the Spencer Foundation, the University Club of Portland, the Risa Palm Fellowship, the University of Oregon History Department, and the Wayne Morse Center at the University of Oregon Law School for the community, research support, and camaraderie they provided.

I was fortunate to be a Jerome Hall Postdoctoral Fellow in Law, Society, and Culture at Indiana University’s Maurer School of Law under the mentorship of Ajay K. Mehrotra and Michael Grossberg. Between them, they were experts in just about every field covered in my book, and their warmth, encouragement, and support cannot be overstated. Sadia Saeed and Jen Erickson were wonderful comrades in arms as we explored Indiana that year and worked to develop our book manuscripts and research agendas as scholars, and Jeannine Bell and Kevin Brown provided insight into the process.

My colleagues at the University of Washington–Bothell have been a constant source of companionship, camaraderie, and support for many years, and I feel fortunate to work at an institution where hard questions and critical thinking are our guiding light, and empathy and justice our foundations. Janelle Silva and Johanna Crane, thank you for toasting and cheering me on at every step, as well as for all the adventures, the commiseration, and the new things you always brought to the table for me to learn about research, teaching, and life. I also appreciate the incredibly generous camaraderie, support, and wisdom of too many colleagues to name, among them Wayne Au, Nancy Beadie, Dan Berger, Bruce Burgett, Charu Charusheela, Martha Groom, Dan Jacoby, Ron Krabill, Alka Kurian, George Lovell, Keith Nitta, Wadiya Udell, and so many others. The Royalty Research Fund at the University of Washington generously provided me with a summer free of teaching to focus on my research. Finally, thank you to the Interdisciplinary Arts and Sciences staff for endless support in navigating academic life; and to Joren Clowers for a terrific index.

I am very grateful for the guidance, patience, and support of the editorial team at the University of North Carolina Press, in particular Brandon Proia. Parts of this book have been presented in a number of forums, invited talks, and conferences, including Institutes for Constitutional History at Stanford Law School and George Washington University School of Law; Centre for Citizenship, Civil Society, and Rule of Law at the University of Aberdeen, Scotland; Workshop on Vulnerability and Education; Conference on Civil Rights and Education at Pennsylvania State University; Organization of American Historians Annual Meeting; American Historical Association Annual Meeting; Policy History Conference; History of Education Society Conference; Class Crits Conference; Social Science History Association; American Society for Legal History Conference; Lat Crit Conference; Critical Tax Theory Conference; Poverty Law Conference; Fiscal Sociology Workshop; Law and Society Association Annual Meeting; and numerous others. I would like to thank the organizers and participants of each of these events and panels for including me and discussing this work at various stages of development. Thank you in particular to Dorothy Brown, Mary Dudziak, Martha Fineman, Risa Goluboff, Kenneth Mack, Isaac Martin, Serena Mayeri, Monica Prasad, and many others for their insightful comments on my work at different stages.

I believed Harvard Law School to be a mythical place when I first arrived. In many ways, the institution bore out those assumptions, with everything from free ice-skating rinks set up in winter to boost our happiness, to quarters preplaced in the lockers of the library so that no one in those elite halls would have to search for change to use the lockers. I was lucky to meet Ramya Ravindran on my first day of orientation, and to share a house with her for the last two years of law school, when she regularly brought me down to earth and helped me clarify my ideas. Ann Blaylock has been a wonderful and generous friend since that first year and, along with Ramya, provided me with a home away from home, along with nourishing meals and company for countless research trips to archives in Washington, D.C., as a poor graduate student. Saru Matambanadzo has not only been my intellectual twin and confidante since the first year of law school, she has also unceasingly encouraged me to do things I might have never considered otherwise—starting with studying for a PhD. Thank you for dreaming big and seeing me as I am.

This book would not have been possible without my family and friends, starting with daily visits from Arya, who came in and sat next to my computer as I wrote, occasionally giving me subtle hints to stretch and pause for a head scratch. Momo and Leo reminded me that sometimes a walk outside in the sunshine could clarify a challenging idea. Mom, you inspired in me a commitment to empathy and justice that has given me a sustaining passion. My grandfather Albert fought against inequality his entire life and planted the seed for my life’s work. Luke, you moved me into college, and again from college to law school; you told me I could go anywhere and be anything, and I owe so much in my life to your love, steadfastness, and support. Gareth, I pass the torch to you—it’s in impeccable hands. Charles and Mary Walsh, and the huge and fabulous Walsh clan, thank you for so many holiday reprieves throughout my (seemingly endless) years of schooling—you showed me whole worlds I couldn’t have imagined before. Thank you to all my wonderful friends, including Charlotte Garden and Owen Davies, for their unwavering support, loyalty, and willingness to show up with pizza and wine when needed or help me with random formatting questions. Erin McGladrey, Jake Spavins, and the entire, extended McGladrey family, thank you for the example of your commitment to public schools and students and your inclusivity to random outsiders. Robin (Bill) McGladrey was lost far too early, but I am grateful for the time I was able to spend talking to him about my research and teaching, as well as trees, animals, and justice, during graduate school. And for my dear Tim, who gave me a home, a garden in which to play, and the best corner of the office for me to do my work, I love you. Thank you for understanding all the times I had to turn down a hiking trip or a glass of wine to work on this project. Like all things, this has been a collective labor of love that would not exist without my community’s support. Any mistakes are mine alone, but any insights are owed to a wide web of friends and intellectual mentors, past and present.

Racial Taxation

Introduction

Taxpayer Citizenship and the Right to Education

But what on earth is whiteness that one should so desire it? Then always, somehow, some way, silently but clearly, I am given to understand that whiteness is the ownership of the earth forever and ever, Amen!

—W. E. B. DUBOIS, The Souls of White Folk, in Darkwater

Legal interpretation takes place in a field of pain and death.

—ROBERT COVER, Violence and the Word

In the 2016 U.S. presidential election, the question of whether the Republican candidate, Donald J. Trump, had paid U.S. income tax became regular fodder for the news media. Based on pages from his tax records in 1995 that were leaked to the New York Times, there was speculation late in the campaign that Trump had very likely not paid federal taxes for many years.¹ Yet the unapologetic, winking response from the candidate was, as he said to reporters before and after the election, that people don’t care about his tax returns, and, therefore, about his taxpayer status.² Trump spokesperson Kellyanne Conway announced immediately after his inauguration that he would not release his tax returns, despite a petition that had gathered several hundred thousand signatures calling on him to do so.³

New York Times op-ed author David Brooks took on the question of Trump’s taxes a few days after the 1995 tax records were released, arguing that you can be a taxpayer or you can be a citizen.⁴ In Brooks’s view, the two mentalities are mutually exclusive, the first defined by its individual self-interest and economic position, the second by a larger desire to be part of a lovely world in which we all pull our fair share. While Brooks’s description of citizenship is compelling as an idealized notion, this book will illustrate that the historical reality has been very different. Indeed, far from being mutually exclusive, the categories of taxpayer and citizen have been mutually constitutive, and together they have reinforced inequality through the hidden currency of whiteness that undergirds each term.

In the 2016 campaign, that currency of whiteness was on public parade. White supremacist groups were strengthened and legitimated by their embrace of the campaign of Trump and his alt-right advisers, and the groups’ messages spread via social networking platforms and elsewhere online. A popular meme that circulated in the closing months of the election was taken from a series of 2012 voter maps drawing on electoral data from that year that reflected how different categories of voters would have impacted the presidential election in various states if only they could vote—the maps broke down groups by race, gender, and age and were originally intended to show the significance of universal suffrage in history.⁵ The initial set of maps drew only on those categories that CNN asked about in exit polls in 2012, and extrapolated from the other state data to predict voting patterns in the twenty states that did not do exit polls.

But the meme was quickly taken one step further in the 2016 election, and the map showing only white voters began to circulate on white nationalist websites under the headline What if Only Taxpayers Voted?⁶ The website Daily Pepe, named for the iconic image of the white nationalist right, republished the map under the title What if Only Taxpayers (or White People) Could Vote?⁷ After claiming falsely that 90% of taxpayers are white, the website then mused about the poll tax and asked, Racial issues aside, perhaps we should be asking why non-meaningful taxpayers are even allowed to vote in the first place? With increasing attacks on voting rights in recent years, it’s notable that the romance between white supremacists and the Trump campaign played out in part through a fantasy of excluding presumed nontaxpaying people of color from one of the foundational elements of citizenship. And yet, Trump’s own potential nontaxpaying status raised few concerns among his base of supporters, precisely because his whiteness already did the necessary work of symbolic citizenship. The story presented in this book suggests that Trump’s presumptive status as a taxpaying citizen candidate was deeply rooted in the historical elisions between taxpayer, citizen, and white that have been deployed to help justify and alibi racial inequality.

The legal definition of taxpayer shifts depending on the jurisdiction and the claim asserted, but the popular and political usage of the term is vastly more fluid, to the point that the term has been emptied of almost any literal meaning and is often code for something else. So what do we mean when we say someone is a taxpayer? Does it mean the individual pays income tax at the state or federal level or both? Or Social Security taxes? What if the person paid Social Security taxes under a different name, such as with many undocumented folks who will never receive those payments back? Does it mean that the person has paid sales tax at some point on a soda from a deli or a cup of coffee at a café—and if so, can children be taxpayers? Are you a taxpayer if you have paid a premium on a good whose price was reflective of taxes along the production process (indirect taxes)? Does it require homeownership and the payment of property tax? What if a renter pays a higher rent because the landlord has transferred the burden of property taxes into the rental price—is the renter then a property taxpayer? Is the implication that taxpayers have paid more in (direct) taxes than they have withdrawn from public funds through services and support, and if so, how could such a ratio be calculated on a per-person basis? Or does the term simply suggest that the individual is part of a group (men, white people, adults, workers, documented residents, the wealthy) that is implicitly or symbolically somewhere closer to the center of an assumed social contract? And by always reiterating some group’s centrality, what groups are left outside the circle of safety that the taxpayer label creates? In this book, I suggest that the deployment and popularity of the taxpayer identity category has helped coconstitute whiteness through its symbolic exercise in defense of exclusionary ideas. This identity has been tightly linked to the racialized entitlements to educational access and resources from the late nineteenth century onward and has helped to entrench a school finance system with differential levels of citizenship and rights.

Taxpayer sounds like a firm word. A word that is definitive, clarifying. You either are one, or you are not. You can either claim the identity or you are outside it. It’s premised in numbers, surely, so it must be one of those comfortingly measurable identities, not like the fuzzy ones that many people claim vaguely, like middle class or rich. And because the term sounds so simplifying, it calls to mind other definitive terms that can be used and deployed to claim rights—words like citizen. I hope to show that the word taxpayer is anything but definitive, and in fact that it is a slippery term that is ultimately a rhetorical symbol rather than a substantive factual description. Sometimes the claims of taxpaying status can seem progressive—a dignitarian claim for taxpayer identity is very appealing on behalf of those who have been historically disenfranchised, and a communitarian approach might suggest that a community’s symbolic entry into any taxpaying system, through members’ work or property ownership, should suffice to protect the rights and privileges of all community members. Yet taxpayer has more often worked as a barely hidden code in service of white supremacy, patriarchy, and racial capitalism to define out the nontaxpaying other, who is implicitly less entitled to protections and rights.

Taxes are the way we tangibly show our connection to strangers. They link us in a far-reaching social and political network of obligations to people distant from our personal communities. It is perhaps to be expected, then, that taxes have also been a contentious space in which the most fundamental debates have taken place about civil rights, justice, exclusion, and inequality. Racial Taxation explores the complicated and intersecting connections between race, education, and taxation in post–Civil War U.S. history. As such, it takes part in one of the central intellectual debates of the twentieth century, how we define our role as citizens and our duties to one another in a large and complex society. This book argues that the claim of taxpayer almost always has a hidden symbolic meaning premised in whiteness and has served as a currency of exclusion and inequality (whether supporting it or combatting it), particularly when that identity is deployed in discussions of the right to public education.

Public schools are a foundational institution in creating both rights and obligations as citizens and in solidifying an ideal of meritocracy and democracy. They have also been the site of a constant battle over race, rights, and taxes. After the Civil War, separate and racialized tax structures were set up to enable segregated schooling in the South and North. Astonishingly, nearly 150 years later, despite a few superficial adjustments—separate tax systems gave way to color-blind systems—those same systems of property-tax funding continue in most U.S. school districts, allowing and even facilitating the continuation of de facto segregated schools on the basis of resource inequality and access. In making this connection between taxpayer legal consciousness and equal education claims, courts both contributed to and reflected the disconnection between race and class categories in school finance cases. Racial Taxation’s argument engages with the work of critical legal histories both inside and outside the courtroom by locating many of these taxpaying citizen identities in personal letters, transcripts, and other sources produced by the people who were most affected, as well as by acknowledging the role of power—in particular the power of judicial pronouncements—to shape arguments, activism, and rhetoric.⁸

Taxpayer Citizenship and Equality

Both people of color and whites in the late nineteenth and twentieth centuries frequently described their right to educational equality (or inequality that favored one group) in terms of their identity as taxpayers. For people of color, this right was usually to access education equal to that provided to white students. For whites, it was often the perceived right to access superior education, or unequal education, in comparison to the education provided to black and other minority students. This legal consciousness of taxpayer citizenship contributed to the erasure of the connections between race discrimination and class discrimination that would ultimately lead the Supreme Court to uphold separate and unequal education maintained through local taxation structures in San Antonio Independent School District v. Rodriguez.

The paradigmatic example of taxpayer identity and tax revolt today has become a white fiscal conservative opposed to federal income taxes, but this project traces the earlier entitlements by people of color as well as whites to taxpayer rights around schooling and education. The antitax backlash that this racialized framework generated among many whites would later be channeled by the Republican Party into racially coded opposition to federal programs such as welfare, but its roots can be seen in a broad sense of proprietary rights to public school funds.⁹ Indeed, in tax politics, the embrace of taxpayer rights and suspicion of taxeaters is not a partisan position—as Molly Michelmore has persuasively shown, liberals instrumentally embraced the same conservative taxpayer rights rhetoric as the Republican right in the post–New Deal era.¹⁰ The specific sense of white racial entitlement to school tax funds was also in evidence decades earlier, as illustrated by the late nineteenth-century Louisiana political slogan, The whites pay the taxes and the Negroes go to school. It would ultimately come to the forefront as a way to defend segregation after Brown v. Board of Education.¹¹

Many cases brought by African American activists and families from the late nineteenth and early twentieth centuries highlight the double taxation structures African Americans were subject to in mandatory segregation states, whether what I call separate taxation or color-blind taxation. This claim to taxpayer identity continued in the NAACP cases pressing for equal graduate school education from the 1930s until Brown, and then returned to the court and the political sphere through the rhetoric of segregationists after Brown. The claim for equality as taxpayers by segregationists was a claim for the right to access better-resourced schools, while those fighting segregation typically had a much more egalitarian conception of how taxpaying status bought entry into the marketplace of rights and citizenship. I describe the taxpayer citizenship approach of desegregation advocates as a threshold approach, in which reaching the basic threshold of minimum participation in taxation entitles an individual, family, or community to equal rights and resources. In contrast, the taxpayer citizenship rhetoric of segregationists—and the rhetoric so widespread today—is a consumer approach to taxation, in which public goods and services should be distributed and quantified specifically according to the level of tax contribution from the individual, family, or community. In the end, I illustrate how this claim to rights as a taxpayer would ultimately be reflected by a court that interpreted it through the lens of local control, fiscal conservatism, and racial invisibility, which served to maintain an unequal financing system.

As many historians have recently illustrated about race in the twentieth century, taxpayer identity was a category permanently in danger of losing hold of its own definition. Though status as a taxpayer is easily claimed for rhetorical and political purposes, it is deeply problematic and difficult to delineate as a legal category. This is a key reason why courts have overwhelmingly tried to avoid the question of taxpayer rights or standing in twentieth-century litigation.¹² Even a cursory exploration illustrates that taxpayer as a robust legal category could be both overinclusive (granting rights and standing to foreign corporations or travelers who pay some nominal tax) and underinclusive (potentially excluding those who pay hidden or indirect taxes in the form of higher prices or rents). Despite the consistent refusal of courts to recognize a strong form of taxpayer standing, the law helped produce this identity by first enabling the language of taxpayer rights in equity litigation brought on behalf of African Americans during Reconstruction, then shifting away from taxpayer litigation in the early twentieth century. In some ways, this made invisible the contributions that the black community was making at a time when the rights of African Americans were consistently under attack.

The idea that a child’s right to educational quality, and equality, was closely tied to the parent’s status as a taxpayer, and therefore class status, is clear throughout these sources, despite the questions raised by the unique position of children in any discussion of citizenship and rights. The notion that educational equality was a commodity that citizens were entitled to in proportion to their ability to pay for it both predated the New Deal and was particularly resonant in the area of educational access in the twentieth century.¹³ The idea of education rights was particularly linked to taxpaying status in part because education was historically rooted in local tax levies and community decision-making processes and was thus tightly linked to the idea of individual and local pay-in.¹⁴

While a legal consciousness of rights as deriving from taxes may seem practical, the construction of citizenship premised on the relative amount of taxation also strongly implies a concept of citizenship based on degree of wealth.¹⁵ On the other hand, we could imagine a construction of citizenship in which the proportion of income devoted to taxation was the determining factor, which would generally tend to recognize lower-income, working-class people as larger taxpayers.¹⁶ The marketplace notion of taxpayer citizenship, then, is connected to race- and class-based claims of citizenship, political authority, and rights. Taxpayer identity in the letters from segregationists to the Supreme Court was defined as white and middle class, while a welfare recipient was defined as black and poor.¹⁷

In part, this concept of racialized rights as directly responsive to the amount of taxes paid to the state correlates to the special position of market and exchange relationships in American history and life. In this marketplace of citizenship, the amount an individual (or racial identity group) contributes in taxes should correspond to the amount and quality of rights and privileges he or she obtains from the state.¹⁸ This view of taxation as corresponding to rights is also tied to an understanding of rights as an isolated reciprocal bargain between the individual and the state, rather than as a combination of entitlements and obligations connecting individuals to one another in a community. As legal scholars Stephen Holmes and Cass Sunstein point out, however, if rights are dependent on the rate of taxation, then does not the rule of law hinge upon the vagaries of political choice?¹⁹ One of the contributions of my research is identifying the consistency between legal actors on both sides of the famous battles over segregation in asserting this ultimately exclusionary conception of rights, and articulating the ways this concept contributed to the failure of educational equality in courts.

While, from a broad perspective, virtually anyone who purchases anything, pays rent or the cost of utilities, or engages in a variety of other economic transactions pays taxes either directly or indirectly, it is precisely the way in which taxpayer citizenship was utilized as an argument for education rights by those who claimed it in the post-Brown era that made it a category of exclusion. Taxpayer status was and is an identity that can be deployed to both reflect and contribute to economic inequality. It is a structure that coheres class categories by sorting people based on wealth, perpetually implying an other who does not pay taxes and therefore has not earned rights. Property-tax-based financing or the separate funding of education has been historically constructed by the demands of separate, segregated school systems and later, in turn, residential segregation.²⁰ But it has also facilitated the continuation of educational and residential segregation at points in time when these systems were under moral or legal attack.

Particularly in the postwar era, taxation systems mediated segregation for white parents, especially in the North, providing an attractive rationale for moving out of more financially insecure school districts in order to send children to better schools. A rapid increase in the number of white homeowners thanks to the GI Bill and the Federal Housing Administration’s home lending policies was now coupled with a growing sense that overt, statutory racial segregation was not entirely socially acceptable.²¹ The assumed parental obligation to provide the best school possible via the property-tax-financed public school marketplace enabled parents to send their children to virtually all-white suburban schools without feeling directly implicated in a system of legal racial segregation. Because state and local tax structures, especially those used to fund public schools, were not modified