Spatial Inequality as Constitutional Infirmity?

My latest article in the publication pipeline is called, "Spatial Inequality as Constitutional Infirmity: Equal Protection, Child Poverty and Place." I wrote it for a "rural law" symposium issue of the Montana Law Review (see the related post here). The article represents a continuation of my engagement with rural sociology and geography, but in it my focus shifts to rural child poverty, which outpaces even rates among the general population. The abstract follows, and the full paper can be downloaded here:

This is the first in a series of articles that maps legal conceptions of (in)equality onto the socio-geographical concept of spatial inequality, with a view to generating legal remedies for those living in places marked by socioeconomic disadvantage. Written for a symposium on “rural law,” this article considers in particular whether the funding and delivery of government services at the county level in the state of Montana violate the state’s constitution because of the grossly disparate abilities among Montana counties to finance and provide such services. Pruitt’s analysis focuses on children as a particularly vulnerable and immobile population, many of whom are deprived of government services based on place of residence. Further, the article scrutinizes the provision of health and human services as a category of services to which Montana children experience great variations in access.

County governments in Montana are financed principally by local property tax revenue. Uneven development across the state, from one county to the next, consequently confers on individual counties vastly different capacities to provide services. Because of the lack of centralized funding for services such as public health and other human services, those who live in sparsely populated, relatively undeveloped and property-poor counties are least served by local government. At the same time, wealthy counties—which tend also to be more populous—have economies that are more diversified, property tax bases that are more substantial, and a correspondingly greater capacity to deliver services. More densely populated counties also face lower per capita costs for delivering services because they are better able to achieve economics of scale.

To illustrate these disparities, Pruitt discusses in detail the economic and demographic profiles of five Montana counties. These include Yellowstone County, home to Billings, the state’s largest city; fast-growing Gallatin County, which exemplifies rural gentrification and the rural resort phenomenon; Stillwater County, a sparsely populated nonmetropolitan county with significant mineral wealth; Big Horn County, a persistent poverty county with a majority American Indian population; and Wheatland County, a tiny county with a dwindling population and an agriculture-based economy.

The legal critique of this spatially and economically uneven landscape relies primarily on the 1972 Montana Constitution, which is among the most progressive state constitutions in the nation. In particular, Pruitt argues that the constitution’s equal protection and dignity clauses are violated by the county government funding scheme and its consequences. The Montana equal protection clause forbids discrimination based on “race, color, sex, culture, social origin or condition, or political or religious ideas.” Pruitt maintains that significant disparities in service provision, which occur arbitrarily across county lines, violate this equality guarantee. Pruitt’s second argument is for state provision of a minimal degree of services to children. 

Relying on the constitution’s dignity clause and the doctrine of parens patriae, Pruitt argues that children cannot live with dignity unless their fundamental needs are met. She asserts that the typical emphasis on autonomy with respect to the dignity right is misplaced with regard to children. For the child population, Pruitt maintains that a right to dignity should be grounded instead in their inherent dependency and vulnerability, thus imposing a duty on the state to provide children’s first-order needs when their parents cannot or do not do so. In addition to this analysis under the Montana Constitution, the article also challenges the orthodoxy of U.S. constitutional jurisprudence regarding poor people, public benefits, and equal protection.

Finally, Pruitt argues that Montana’s school funding scheme, which has been the subject of recent litigation, now represents a better model—albeit a still-imperfect one—for financing public services. This is because the school funding formula seeks to level the funding playing field by providing more state monies, along with federal funds that are somewhat similarly allocated, to school districts based on the presence of at-risk students. School districts with the highest percentages of at-risk students tend also to be the school districts with poorer property tax bases. By contrast, the scheme for financing county government results in a situation in which more affluent counties are better able to provide services to residents, while those living in the most rural and property-poor counties have access only to very limited health and human services. Financing so linked to the local scale thus aggravates and further entrenches spatial inequalities, an outcome that is in contrast to the school funding formula, which aims to achieve greater substantive equality by channeling money to the schools with the greatest need.

While this article analyzes spatial inequality in the context of a specific state and with respect to a particular type of government service, the capacity and significance of spatial inequality as a critique of legal equality guarantees is not so limited. The services that governments provide implicate a wide range of rights, and these rights may be violated if the services are not provided in an equitable manner. Pruitt thus calls for all branches and scales of government to be more attentive to the difference place makes to service delivery, in order to ensure more even and fair access.