Home Slideshow

Addressing the School-to-Prison Pipeline Through Three Nontraditional Pathways

He who opens a school door, closes a prison.

– Victor Hugo

Analogous to Nathaniel Hawthorne’s critique of his leaders’ decision to use punishment as a sign of public accountability, and his adoption of the phrase “the black flower of civilized society” to describe the prison,1 1.Nathaniel Hawthorne, The Scarlet Letter 39 (Brian Harding ed., 2007).Show More our leaders in the White House, Congress, and the Supreme Court made several decisions about law and social policy between 1965 and 1973 that created a new culture of public accountability for uses (or misuses) of taxpayers’ money. By doing so, they inadvertently made it harder to invest in public education, but easier to invest in public prisons. The seeds that germinated from those decisions grew into a black flower whose bloom shaped American modernity for the next fifty years: the school-to-prison pipeline.2 2.I use the term “school-to-prison” pipeline broadly to address the number of school-age children, adolescents, and teens who are justice-involved youth. How did they end up in the justice system? The pathway for some school-age youth began with a school referral to law enforcement officers based on a report of disruptive behavior—real or imagined. Another pathway for school-age youth is participation in illegal activities outside of school hours. Others arrive in the criminal justice system as children of an incarcerated mother or father, while factors such as race, gender, disability, poverty, or other issues not related directly to a school also provide a pathway. Thus, the “school-to-prison” pipeline phrase is myopic, in part, as a point of origin for this phenomenon. For this reason, I would prefer to name what we see a “child-to-prison” pipeline. Nevertheless, I will use school-to-prison pipeline because it remains the most well-known phrase to describe the topic in this Essay.Show More

The San Antonio Independent School District v. Rodriguez decision of 1973 fertilized this flower.3 3.411 U.S. 1 (1973).Show More The United States Supreme Court held in Rodriguez that the U.S. Constitution did not protect education as a fundamental right; therefore, students could not challenge in federal court the funding disparities in Texas or elsewhere that privileged wealthier school districts while greatly disadvantaging poorer ones.4 4.Id. at 35, 54–55.Show More Even while acknowledging the need for higher quality schools and more equality in educational opportunity,5 5.Id. at 58.Show More the Court eliminated a federal constitutional remedy to achieve greater equity in school funding. This left educational opportunity to the discretion of state legislatures and courts.6 6.See id. at 58–59; Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Creating New Pathways to Equal Educational Opportunity, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity 263, 264 (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015); see also A Federal Right to Education: Fundamental Questions for Our Democracy (Kimberly Jenkins Robinson ed., 2019) (examining why the United States should recognize a federal right to education, how to recognize it, and what it should guarantee); Derek Black, Unlocking the Power of State Constitutions with Equal Protection: The First Step Toward Education as a Federally Protected Right, 51 Wm. & Mary L. Rev. 1343, 1408 (2010) (arguing that Rodriguez left open the possibility of enforcing equal protection by relying on state court definitions of a “minimally adequate education”); Susan H. Bitensky, Theoretical Foundations for a Right to Education Under the U.S. Constitution: A Beginning to the End of the National Education Crisis, 86 Nw. U. L. Rev. 550, 554 (1992) (exploring potential constitutional theories for recognizing a right to education).Show More The Court contended that federalism constraints and contested foundational questions in education policy led it to decline to intervene.7 7.Rodriguez, 411 U.S. at 40–44.Show More

The Court’s decision to reject the claim that education is a fundamental right in Rodriguez, and take a “hands-off” approach to federal support to fund public schools, did three things. First, the decision provided political cover to elected state and local officials who were already involved in ideological debates back home about school finance and equity. Second, it started what I will call a War on Property Taxes. Third, the ruling raised one big question for governors and elected officials to answer: How will state legislatures, education departments, and local school districts operationalize the notion of equity, and eventually adequacy, in light of Rodriguez given the different visions of public schooling that are supported by a living state constitution?

So, while the Court’s ruling in Rodriguez supported a “hands-off” approach to funding public schools, it is worth noting that leaders in the White House and Congress during the same period of time were supporting a “hands-on” approach by implementing a tough-on-crime agenda that, ironically, impacted the same public school students (and their parents and communities) left behind by Rodriguez in 1973.

For example, a couple of years before Rodriguez, President Richard Nixon declared at a press meeting on June 17, 1971, that drug abuse in America was “public enemy number one[,]” and the crime that accompanied it was sweeping the nation.8 8.Id.Show More He was not alone in this belief.

His predecessor, President Lyndon B. Johnson, shared a similar sentiment when he stated before Congress on March 8, 1965, that, “[c]rime has become a malignant enemy in America’s midst.”9 9.See Lyndon B. Johnson, Special Message to the Congress on Law Enforcement and the Administration of Justice, in 1 Pub. Papers 263, 263 (1965).Show More A few months later, President Johnson signed Executive Order 11236 to establish the President’s Commission on Law Enforcement and Administration of Justice.10 10.Exec. Order No. 11,236, 3 C.F.R. 329 (1964–1965).Show More The function of the Commission was to “[i]nquire into the causes of crime and delinquency, measures for their prevention, the adequacy of law enforcement and administration of justice, and the factors encouraging respect or disrespect for law . . . .”11 11.Id.Show More One major product from the Commission is the 1967 publication of The Challenge of Crime in a Free Society: A Report by the President’s Commission on Law Enforcement and Administration of Justice.12 12.President’s Commission on Law Enforcement & Administration of Justice, The Challenge of Crime in a Free Society (1967), https://www.ojp.gov/sites/g/files/xyckuh241/‌files/archives/ncjrs/42.pdf [https://perma.cc/S36P-5W9X].Show More Chapter Three of the report addresses “Juvenile Delinquency and Youth Crime.”13 13.Id. at 55–89.Show More One suggestion from this Chapter is for the police, schools, and courts to play a bigger role in referring youth to law enforcement.14 14.Id. at 78–89. On page 89 is a chart to show the role of police in juvenile court and youth referrals compared to schools and parents.Show More In regard to the juvenile justice system in particular, the Commission recommended that “[t]o the greatest feasible extent, police departments should formulate policy guidelines for dealing with juveniles.”15 15.Id. at 79.Show More

In 2023, we refer to this practice as the school-to-prison pipeline. To be clear, the Rodriguez decision of 1973 was not a case about the juvenile justice system. However, removing any federal accountability for ensuring that states provide equitable and adequate funding for students educated in lower-income school districts laid the groundwork for little to no state accountability for low-quality schools that serve as dead ends and drop out factories that feed our juvenile justice and adult prison systems.

So, how did we get here? And where do we go from here? To answer those questions, this Essay identifies how and why the school-to-prison pipeline became an acceptable norm in our public discourse about law and policy, summarizes its impact on students and society, and asks lawyers and reformers to reimagine how to address the issue by giving consideration to three novel pathways to change: (1) creative settlement of school funding litigation; (2) a prison-to-solutions pipeline; and (3) a Pell grants and civil society evaluation.

I. Brief Overview of the School-to-Prison Pipeline

The school-to-prison pipeline is real.16 16.See generally Am. Bar Ass’n, ABA Task Force on Reversing the School-to-Prison Pipeline: Report, Recommendations and Preliminary Report (Jan. 2018), [https://perma.cc/‌5NBC-33Z3] (discussing the school-to-prison pipeline and ways to stop it).Show More One researcher defines it as “the intersection of the K–12 public education system and law enforcement, and the trend of referring students directly to law enforcement for committing offenses at school or creating conditions that increase the probability of students eventually becoming incarcerated, such as suspending or expelling them.”17 17.Jason P. Nance, Students, Police, and the School-to-Prison Pipeline, 93 Wash. U. L. Rev. 919, 923 (2016).Show More Although research and practice verify the existence of this pipeline, one area of limited research about it is the way a school’s disciplinary actions affect students as adolescents, as well as their future arrests and incarceration as adults.

To address that issue, researchers at Boston University, the University of Colorado Boulder, and Harvard University tracked 26,246 middle school students enrolled in Charlotte-Mecklenburg public schools from the 1998–1999 through the 2010–2011 academic years.18 18.Andrew Bacher-Hicks, Stephen B. Billings & David J. Deming, Proving the School-to-Prison Pipeline: Stricter Middle Schools Raise the Risk of Adult Arrests, 21 Educ. Next 52, 54 (2021).Show More The school population was 48% Black, 39% white, and 8% Hispanic.19 19.Id. at 54.Show More After evaluating data, the researchers published their findings in 2021:

  • “[Y]oung adolescents who attend schools with high suspension rates are substantially more likely to be arrested and jailed as adults. These long-term, negative impacts in adulthood apply across a school’s population, not just to students who are suspended during their school years.”20 20.Id. at 52.Show More
  • “Students assigned to middle schools that are one standard deviation stricter—equivalent to being at the 84th percentile of strictness versus the mean—are 3.2 percentage points more likely to have ever been arrested and 2.5 percentage points more likely to have ever been incarcerated as adults. They also are 1.7 percentage points more likely to drop out of high school and 2.4 percentage points less likely to attend a 4-year college. These impacts are much larger for Black and Hispanic male students.”21 21.Id.Show More
  • “In looking at what types of crimes are involved, we find that school strictness increases later involvement in crimes related to illegal drugs, fraud, arson, and burglary, but not in serious violent crimes like murder, manslaughter, rape, robbery, and aggravated assault.”22 22.Id. at 56.Show More
  • “Negative effects are especially pronounced among Black and Hispanic male students, who are 5.4 percentage points more likely to be arrested and 4.4 percentage points more likely to be incarcerated as adults.”23 23.Id.Show More

The authors acknowledge that while suspension and crime rates in Charlotte-Mecklenburg public schools are “well above the national averages,” the schools are fairly representative of large, urban districts in the South.24 24.Id. at 55.Show More

Although those findings from North Carolina are alarming, the school-to-prison pipeline in the United States is not a new phenomenon. In 1974, for instance, approximately 1.7 million students were suspended from school, but the number increased to 3.1 million during the early 1990s.25 25.Johanna Wald & Daniel J. Losen, Defining and Redirecting a School‐to‐Prison Pipeline, 2003 New Directions for Youth Dev. 9, 10 (2003) (citation omitted).Show More As for race, the white student suspension rate increased from 3.1% to 5.09% between 1972 and 2000, and for Black students it increased from 6.0% to 13.2% during the same period.26 26.Id. For more information about race, suspension, and disproportionality, see generally Johanna Wald & Daniel J. Losen, Out of Sight: The Journey Through the School-to-Prison Pipeline, in Invisible Children in the Society and Its Schools 23 (Sue Books ed., 3d ed. 2007); Edward J. Smith & Shaun R. Harper, Disproportionate Impact of K–12 School Suspension and Expulsion on Black Students in Southern States, Univ. of Penn., Ctr. for the Study of Race & Equity in Educ. (2015), https://race.usc.edu/wp-content/uploads/2020/08/Pub-14-Smith-and-Harper.pdf [https://perma.cc/S973-5WCA].Show More During the 2015–2016 academic year, more than 2.7 million public school students were suspended from school.27 27.U.S. Comm’n on C.R., Beyond Suspensions: Examining School Discipline Policies and Connections to the School-to-Prison Pipeline for Students of Color with Disabilities 3 (July 2019) (citation omitted), https://www.usccr.gov/reports/2019/beyond-suspensions-exam‌ining-school-discipline-policies-and-connections-school-prison [https://perma.cc/8ZMQ-JZ‌KH].Show More

School suspensions also impact students with disabilities. As early as 1972, a group of advocates successfully challenged in federal court the exclusion of Black students with disabilities from school without due process.28 28.Id. at 8 (citing Mills v. Bd. of Ed. of D.C., 348 F. Supp. 866, 875–76 (D.D.C. 1972).Show More Sadly, however, suspension and referrals continue into modern times. For instance, data from the U.S. Department of Education Office for Civil Rights identified the following:

  • “Students with disabilities are more than twice as likely to receive an out-of-school suspension (13%) than students without disabilities (6%).”29 29.Off. for C.R., U.S. Dep’t of Educ., Civil Rights Data Collection: Data Snapshot (School Discipline) 1 (2014), https://ocrdata.ed.gov/assets/downloads/CRDC-School-Discipline-Snapshot.pdf [https://perma.cc/9MSJ-APLQ].Show More
  • “Suspension rates, by race, sex, and disability status combined: With the exception of Latino and Asian-American students, more than one out of four boys of color with disabilities (served by IDEA) — and nearly one in five girls of color with disabilities — receives an out-of-school suspension.”30 30.Id.Show More
  • “While [B]lack students represent 16% of student enrollment, they represent 27% of students referred to law enforcement and 31% of students subjected to a school-related arrest. In comparison, white students represent 51% of enrollment, 41% of students referred to law enforcement, and 39% of those arrested. Students with disabilities (served by IDEA) represent a quarter of students arrested and referred to law enforcement, even though they are only 12% of the overall student population.”31 31.Id.Show More

A 2019 report published by the U.S. Commission on Civil Rights contains updated information about the impact of the school-to-prison pipeline on students of color with disabilities,32 32.U.S. Comm’n on C.R., supra note 27, at 3–11.Show More and also provides information about the effects discipline policies have on English language learners and LGBTQ students.33 33.Id. at 5, 35.Show More

Although the findings are alarming for Black and Hispanic boys, Black girls are not untouched by school discipline policies. Of all students enrolled in public schools in the United States, Black girls have the fastest growing suspension rate, which is six times higher than white girls and higher than 67% of boys.34 34.Subini Ancy Annamma et al., Black Girls and School Discipline: The Complexities of Being Overrepresented and Understudied, 54 Urban Educ. 211, 214 (2019), https://journals.sagepub.com/doi/epub/10.1177/0042085916646610 [https://perma.cc/P5GV-2EER] (referencing academic and U.S. Department of Education data about civil rights in education).Show More According to one study about school suspensions in big city schools during the 2011–2012 academic year, 90% of all expulsions in New York City and 63% of expulsions in Boston were Black girls, while no expulsions were white girls.35 35.Kimberlé Williams Crenshaw, Priscilla Ocen & Jyoti Nanda, Black Girls Matter: Pushed Out, Overpoliced and Underprotected, Afr. Am. Pol’y F. 23 (Feb. 4, 2015), https://www.aapf.org/_files/ugd/b77e03_e92d6e80f7034f30bf843ea7068f52d6.pdf [https://perma.cc/K2ME-TLV4].Show More

What factors account for the high suspension of Black girls? According to a report published in 2020 by The Education Trust and the National Women’s Law Center, researchers concluded that Black girls who talk in class, share their beliefs, or stand up for justice are at times considered disruptive, and thus subject to exclusionary methods.36 36.Kayla Patrick, Adaku Onyeka-Crawford & Nancy Duchesneau, “ . . . And They Cared”: How to Create Better, Safer Learning Environments for Girls of Color, The Educ. Trust 9 (Aug. 20, 2020), https://edtrust.org/wp-content/uploads/2014/09/And-they-cared_How-to-create-better-safer-learning-environments-for-girls-of-color_Aug-2020.pdf [https://perma.cc/‌7F8W-WQFD].Show More According to a group of researchers and educators that studied disciplinary data from a large urban school district, historical narratives about Black women’s behavior (e.g., being loud, mouthy, or “ghetto”) influence school personnel’s decisions to discipline Black girls.37 37.Annamma et al., supra note 34, at 217. The authors identified four controlling images of Black women that influence how school personnel see Black girls:“(a) Mammy or Matriarch, a woman who is nurturing, loving, and sexless; (b) Sapphire, the emasculating, overly aggressive, unfeminine, or masculine, and loud female; (c) Jezebel, as hypersexualized woman who pursues and initiates sex; and (d) The Welfare Queen, the woman who is conniving, loud, talks back, and is vampiric, sucking off the system by having children and refusing to work.”See id. at 231 tbl.6 for a comparison of referral categories and dominant narratives about Black girls.Show More Among young school-age girls, the largest predictor of later arrest in life is being held back, suspended, or expelled during middle school.38 38.Wald & Losen, supra note 25, at 11, referencing the impact of disciplinary action on girls in middle school and what it means for future actions in and out of school. See Am. Bar Ass’n & Nat’l Bar Ass’n, Justice by Gender: The Lack of Appropriate Prevention, Diversion and Treatment Alternatives for Girls in the Justice System, 9 Wm. & Mary J. Women & L. 73, 82–83 (2002).Show More With this being the case, lawyers, judges, legislators, and educators should create an action plan to address the school-to-prison pipeline for Black girls—but also for girls in schools everywhere, be they in urban or rural areas.

II. Influencers of Ideas that Resulted in the School-to-Prison Pipeline

Given all of these factors, what influenced the public’s perceptions about youth culture and crime and led to the development of federal, state, and local disciplinary laws that pumped students through a school-to-prison pipeline since the San Antonio Independent School District v. Rodriguez decision of 1973?

Television news is one influence. Most homes in the United States during the 1980s and 1990s had a television, and by 2001, people spent approximately four hours a day watching it.39 39.Nancy A. Heitzeg, Education or Incarceration: Zero Tolerance Policies and the School to Prison Pipeline, F. Pub. Pol’y, no. 2, 2009, at 3 (citation omitted), https://files.eric.ed.gov/‌fulltext/EJ870076.pdf [https://perma.cc/Z5QQ-V83V].Show More With a steady dosage of watching street gang activities, crack “epidemics” ravage cities, and violence inside and outside of public schools, the image of the “young” criminal in America came into view. Even when the research showed youth violence was falling, youth were nevertheless overrepresented in the news.40 40.Id. (citation omitted).Show More Often, the news portrayed Black and Hispanic youth as the purveyors of crime, but underrepresented them as victims of crime.41 41.Id. (citation omitted).Show More Blacks, in particular, were overrepresented as “criminals” in the news, four times more likely to be in a mug shot than whites, and more likely than whites to be shown in physical restraint.42 42.Id.Show More At the same time, Blacks and Hispanics were portrayed as “predators” as well.43 43.Id. at 4.Show More

Intellectuals and public leaders were another influence on the public’s perceptions of youth culture and crime. In 1995, the year after Congress enacted the Violent Crime Control and Law Enforcement Act of 1994,44 44.Pub. L. No. 103-322, 108 Stat. 1796 (1994).Show More which was one of the most far-reaching crime laws since the 1960s and one that had a devastating impact on communities of color,45 45.Ranya Shannon, 3 Ways the 1994 Crime Bill Continues to Hurt Communities of Color, Ctr. for Am. Progress (May 10, 2019), https://www.americanprogress.org/article/3-ways-1994-crime-bill-continues-hurt-communities-color/ [https://perma.cc/QG8F-YD73].Show More and the Gun-Free Schools Act of 1994,46 46.Pub. L. No. 103-382, 108 Stat. 3907 (1994) (codified at 20 U.S.C. § 7961).Show More which included language to expel students from school for possession of a firearm (which then spilled over into suspension of students for weapon-less infractions),47 47.Id.; see, e.g., Education on Lockdown: The Schoolhouse to Jailhouse Track, Advancement Project 11–13 (Mar. 2005), https://www.justice4all.org/wp-content/uploads/‌2016/04/Education-on-Lockdown.pdf [https://perma.cc/J6NH-WPQV] (providing examples of how federal and state laws resulted in the suspension and arrest of students for weapons as well as for non-weapon related activities in several school districts).Show More Princeton University professor John Dilulio published an essay that changed how society talked about youth and crime.48 48.John J. Dilulio, Jr., The Coming of the Super-Predators, 1 Wkly. Standard 23 (1995).Show More He popularized the term “super-predator.”49 49.See The Campaign for the Fair Sent’g of Youth, The Origins of the Superpredator: The Child Study Movement to Today (May 2021), https://cfsy.org/wp-content/uploads/‌Superpredator-Origins-CFSY.pdf [https://perma.cc/QC2S-33M8].Show More He used the phrase to describe out-of-control white and Black youth growing up in the “abject moral poverty” that “begets juvenile super-predators whose behavior is . . . present-oriented” and who “perceive no relationship between doing right (or wrong) now and being rewarded (or punished) for it later.”50 50.Dilulio, supra note 48, at 25–26.Show More

In 1996, First Lady Hillary Clinton used the phrase “super-predator” during a campaign event held at Keene State College in New Hampshire to talk about youth crime.51 51.Jonathan Capehart, Hillary Clinton on “Superpredator” Remarks: “I Shouldn’t Have Used Those Words,” Wash. Post (Feb. 25, 2016, 2:59 PM), https://www.washingtonpost.com/‌blogs/post-partisan/wp/2016/02/25/hillary-clinton-responds-to-activist-who-demanded-apology-for-superpredator-remarks/ [https://perma.cc/Q7JG-RLRM].Show More She said these super-predator youth have “[n]o conscience, no empathy. We can talk about why they ended up that way, but first we have to bring them to heel.”52 52.Id. For an overview of how forty major U.S. news outlets promoted the “super-predator” idea between 1995 and 2000, see generally Carroll Bogert & Lynnell Hancock, Superpredator: The Media Myth that Demonized a Generation of Black Youth, The Marshall Project (Nov. 20, 2020), https://www.themarshallproject.org/2020/11/20/superpredator-the-media-myth-that-demonized-a-generation-of-black-youth [https://perma.cc/KH7D-UL2B]. A video clip of John Dilulio and Hillary Clinton is here.Show More

Some beliefs about the “super-predator”—or whatever is the phrase of the decade—continue to this day. As do debates about the role of the courts or legislative bodies in addressing the school-to-prison pipeline. Virginia is one example.

III. Policy Responses to the School-to-Prison Pipeline

According to a 2015 report published by the Center for Public Integrity, Virginia led the nation in the number of school referrals to law enforcement officers at nearly three times the national rate.53 53.Susan Ferriss, Virginia Tops Nation in Sending Students to Cops, Courts: Where Does Your State Rank?, Ctr. for Pub. Integrity (Apr. 10, 2015), https://publicintegrity.org/‌education/virginia-tops-nation-in-sending-students-to-cops-courts-where-does-your-state-rank/ [https://perma.cc/J9WP-87MK].Show More For instance, Virginia referred 16 for every 1,000 students to law enforcement compared to the national average of 6 for every 1,000 students.54 54.Id.Show More Virginia also led the nation in the number of disabled students referred to law enforcement officers at 33.4 for every 1,000 students and was second only to Wyoming in Black student referrals at 25.3 for every 1,000 students.55 55.Id.Show More The actions in Virginia prompted The Washington Post editorial board to write a critique of the Commonwealth’s actions.56 56.Editorial Board, Why is Va. Treating its Students—Especially its Black Students—Like Criminals?, Wash. Post (Oct. 22, 2017), https://www.washingtonpost.com/opinions/from-the-classroom-to-the-courts-in-va-too-many-students-get-treated-like-criminals/2017/10/22/‌119cda9a-b5d9-11e7-9e58-e6288544af98_story.html [https://perma.cc/35PN-HHQX].Show More

In 2019, the Legal Aid Justice Center in Charlottesville published a study that documented the negative impact Virginia’s disorderly conduct laws has on schools and students.57 57.Amy Woolard, Rachael Deane & Shannon Ellis, Decriminalizing Childhood: Ending School-Based Arrest for Disorderly Conduct, Legal Aid Just. Ctr. (Oct. 2019), https://www.justice4all.org/wp-content/uploads/2019/10/LAJC-DC-policy-brief-FINAL.pdf [https://perma.cc/GW7K-FQJ7].Show More Data points of note include the following activities:

  • Black students represented approximately 22% of the Virginia school population, although they averaged over 62% of the school-based disorderly conduct criminal complaints between 2016 and 2019.58 58.Id. at 3.Show More
  • White students represented approximately 50% of the Virginia school population, but they averaged only 29% of the school-based disorderly conduct criminal complaints between 2016 and 2019.59 59.Id. at 4.Show More

The report also identified gender differences by race:

  • Black girls represented approximately 11% of the Virginia school population but averaged 29% of the school-based disorderly conduct criminal complaints in 2019.60 60.Id. at 5.Show More
  • White girls represented approximately 24% of the Virginia school population but averaged 10% of the school-based disorderly conduct criminal complaints in 2019.61 61.Id.Show More

Concerned about the issue, Senator Jennifer McClellan (D-Richmond) worked with Charlottesville and Richmond stakeholders to find a solution. In 2020, she sponsored two bills in the Virginia General Assembly.

Senate Bill 3: provides that an elementary or secondary school student is not guilty of disorderly conduct “if the disorderly conduct occurred on school property, on a school bus, or at any activity conducted or sponsored by any [elementary or secondary] school.”62 62.S. 3, 2020 Gen. Assemb., Reg. Sess. (Va. 2020).Show More

Senate Bill 729: eliminates the requirement that school principals report to law enforcement certain enumerated acts that may constitute a misdemeanor offense.63 63.S. 729, 2020 Gen. Assemb., Reg. Sess. (Va. 2020).Show More

Why did Senator McClellan introduce legislation to address the school-to-prison pipeline? “When we started sort of digging into some of the cases that they had . . . one of the biggest things kids were referred for was disorderly conduct,” McClellan said.64 64.Brendan Shillingford & Anya Sczerzenie, New Virginia Laws Seek to Close “School-to-Prison Pipeline”, AP News (Dec. 3, 2020), https://apnews.com/article/race-and-ethnicity-virginia-coronavirus-pandemic-richmond-bills-1c407c5efd8f05fa8be8e24c853c3f4e [https://perma.cc/GT6N-FFV3].Show More “It was things like a kid on a bus in Henrico County was charged for singing a rap song and a kid in Lynchburg was sent to the principal’s office and kicked this trash can on the way out of class.”65 65.Id.Show More

Both bills are now the law of the state.66 66.2020 Va. Acts 241–42, 542.Show More Lawmakers in other states may propose similar legislation. At the same time, many organizations such as the American Bar Association,67 67.Am. Bar Ass’n, School to Prison Pipeline, Resolution Adopted by the House of Delegates, August 8–9, 2016 (Sept. 24, 2018), https://www.americanbar.org/groups/public_interest/‌child_law/resources/attorneys/school-to-prison-pipeline/ [https://perma.cc/5LN5-KL9X].Show More the ACLU,68 68.See generally School-to-Prison Pipeline, Am. C.L. Union, https://www.aclu.org/‌issues/juvenile-justice/school-prison-pipeline?redirect=racial-justice/what-school-prison-pip‌eline [https://perma.cc/WKZ9-8FH3] (explaining the ACLU’s legal and policy work dedicated to challenging the “school-to-prison pipeline”); Locating the School-to-Prison Pipeline, Am. C.L. Union (2008), https://www.aclu.org/sites/default/files/images/asset‌_upload_file966_35553.pdf [https://perma.cc/9FW5-J5B9] (identifying the “stops” on the path to incarceration including failing public schools, school discipline policies, and juvenile detention, among others).Show More the NAACP,69 69.See generally NAACP Legal Def. & Educ. Fund, Dismantling the School-to-Prison Pipeline (2018), https://www.naacpldf.org/wp-content/uploads/Dismantling_the_School_‌to_Prison_Pipeline-2.pdf [https://perma.cc/PJ99-76VA] (identifying the school-to-prison pipeline as one of the most urgent challenges in education today).Show More as well as the U.S. Department of Education and U.S. Department of Health and Human Services,70 70.U.S. Dep’t of Health & Hum. Servs. & U.S. Dep’t of Educ., Policy Statement on Expulsion and Suspension Policies in Early Childhood Settings 8–11 (2014), https://oese.ed.gov/files/2020/07/policy-statement-ece-expulsions-suspensions.pdf [https://perma.cc/H4PX-SZ4K] (providing recommendations for state actions in early childhood settings).Show More are also addressing the school-to-prison pipeline. So are some researchers who suggest using trauma-informed education, behavioral models, and restorative justice to address the school-to-prison pipeline.71 71.Judith A.M. Scully, Examining and Dismantling the School-to-Prison Pipeline: Strategies for a Better Future, 68 Ark. L. Rev. 959, 995–1003 & nn.247–308 (2016) (identifying examples of research and programs).Show More

IV. Three Nontraditional Approaches

At the same time that we propose policy and programmatic approaches to address the school-to-prison pipeline, here are three nontraditional approaches.

A. Creative Settlement of School Funding Litigation

Families, students, and educators have sued state governments for decades over issues of inequity or inadequacy of resources. The San Antonio Independent School District v. Rodriguez plaintiffs provide an early example. With the federal doors closed because of Rodriguez, families and their attorneys have advanced other legal theories to return to federal court. One legal approach is a right to literacy.

In Gary B. v. Whitmer, for instance, a group of students from low-performing schools in the Detroit public school system sued the state of Michigan in 2016 and alleged that they had been denied their right to a basic minimum education under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, meaning an education that “provides a chance at foundational literacy.”72 72.957 F.3d. 616, 620–21 (6th Cir. 2020).Show More In 2018, the U.S. Court of Appeals for the Sixth Circuit ruled in favor of the plaintiffs in a 2-1 decision, with a narrow focus in scope on education.73 73.Id. at 620, 659–60.Show More The court stated that:

Importantly, the right defined in this opinion is narrow in scope. It does not guarantee an education at the quality that most have come to expect in today’s America (but that many are nevertheless denied). Rather, the right only guarantees the education needed to provide access to skills that are essential for the basic exercise of other fundamental rights and liberties, most importantly participation in our political system.74 74.Id. at 659.Show More

The state filed an appeal, but before a decision was reached by the appeals court, Governor Gretchen Whitmer and the Gary B. plaintiffs reached a settlement that required the state to pay the school district nearly $3 million and the governor to propose legislation that would provide approximately $95 million in additional funds to support a host of literacy-focused programs for Detroit schools.75 75.Press Release, State of Michigan Office of the Governor, Governor Whitmer and Plaintiffs Announce Settlement in Landmark Gary B. Literacy Case (May 14, 2020), https://www.michigan.gov/whitmer/news/press-releases/2020/05/14/governor-whitmer-and-plaintiffs-announce-settlement-in-landmark-gary-b–literacy-case [https://perma.cc/XG4Q-F7UP]. The attorney for the plaintiff, Mark Rosenbaum, linked literacy to democracy. “By accepting the Court’s decision that a minimum basic education is a foundational requirement for full participation in our democracy, Governor Whitmer is acknowledging that no child should be denied his or her right to fully pursue the American Dream based on the color of their skin or their family’s income.” Id.Show More This was a historic win for plaintiffs and a show of political compromise by the state.76 76.Valerie Strauss, Michigan Settles Historic Lawsuit After Court Rules Students Have a Constitutional Right to a ‘Basic’ Education, Including Literacy, Wash. Post (May 14, 2020, 12:50 PM), https://www.washingtonpost.com/education/2020/05/14/michigan-settles-histor‌ic-lawsuit-after-court-rules-students-have-constitutional-right-basic-education-including-liter‌acy/ [https://perma.cc/RXT3-DS5M].Show More

Another right to literacy case is Ella T. v. State of California. In this case, a group of families with children who attended low-performing public schools in Los Angeles Unified School District, Stockton Unified School District, and Inglewood Unified School District filed a lawsuit in 2017 claiming that while a fundamental right to an education is supported by the California Constitution and several statutes, students were denied access to literacy.77 77.Complaint at 1–3, Ella T. v. State, No. BC685730 (Cal. Super. Ct. Dec. 5, 2017).Show More Three years later, the plaintiffs and the state reached a $50 million settlement to establish a block grant to support literacy for the seventy-five lowest performing elementary schools.78 78.Valerie Strauss, California Students Who Sued the State Because They Can’t Read Just Won $53 Million for Troubled Schools, Wash. Post (Feb. 23, 2020, 10:00 AM), https://www.washingtonpost.com/education/2020/02/23/california-students-who-sued-state-because-they-cant-read-just-won-53-million-troubled-schools/ [https://perma.cc/2PET-PW‌UH].Show More

Settlements in cases like Gary B. and Ella T. included money and academic programs targeted to risk factors that resulted in students not receiving the literacy skills which are essential to success in K–12 education, college, or the workforce. Those same risk factors—lack of quality access to financial, human, and technological resources that result from the types of funding disparities that were challenged in Rodriguez—can also play a role in leading students to drop out of school (which is an indirect pathway to the school-to-prison pipeline).

The findings from the research about dropping out of school, lack of high-quality literacy skills, or both, and adult incarceration are clear. According to a 2016 federal Department of Education report about literacy skills of 18- to 74-year-olds in the United States: (1) 30% of people in prisons did not complete high school compared to 14% of the general population; (2) 29% of people in prison scored below Level 2 on a literacy test compared to 19% of U.S. households; (3) 52% of people in prison scored below Level 2 on a numeracy test compared to 29% of U.S. households; and (4) 25% of people in prisons had come from a household where neither parent had attained a high school diploma.79 79.Bobby D. Rampey et al., Nat’l Ctr. for Educ. Stats., NCES 2016-040, Highlights from the U.S. PIAAC Survey of Incarcerated Adults: Their Skills, Work Experience, Education, and Training 5–7, 25 (2016), https://nces.ed.gov/pubs2016/2016040.pdf [https://perma.cc/4GVM-6HEE].Show More But this is not a new problem. In 1997, 41% of people in local jails and state prisons had not finished the twelfth grade.80 80.Caroline Wolf Harlow, Special Report, Education and Correctional Populations, Bureau of Just. Stats. 1 (Apr. 15, 2003), https://www.bjs.gov/index.cfm?ty=pbdetail&iid=814 [https://perma.cc/R9TY-696B].Show More

Thus, risk factors that impacted Gary B. and Ella T. students’ ability to gain literacy skills are not radically different from the risk factors that possibly led their peers into the school-to-prison pipeline. Accordingly, creative settlement of school funding litigation could be designed to expand educational opportunities that better prepare free and incarcerated students for citizenship, civic engagement, and college and career readiness. With this in mind, attorneys should craft such settlements to benefit three types of incarcerated youth: (1) youth who could have benefited directly from a settlement as either a plaintiff, or as a student at a school selected by the state for programmatic support, but cannot do so because he or she is behind bars; (2) youth who are parents so that they can gain the educational and employment opportunities that will enable them to minimize the likelihood that their children will one day follow the same pathways to incarceration; and (3) youth who want to pursue a postsecondary education or workforce training but are denied access to public benefits to pay for it either due to incarceration or post-release felon status.

B. A Prison-to-Solutions Pipeline

I began to visit prisons in several states beginning in 2015. Part of my goal was to observe diverse education practices in prison, ranging from adult basic education to postsecondary degree-granting programs.81 81.For an overview of four types of correctional education programs inside prison, see Lois M. Davis et al., Evaluating the Effectiveness of Correctional Education: A Meta-Analysis of Programs That Provide Education to Incarcerated Adults, RAND Corp. 1 (2013), https://www.rand.org/pubs/research_reports/RR266.html [https://perma.cc/H6DR-PVU9].Show More On a couple of visits I observed incarcerated adults participating in an entrepreneurship certificate program.

One example is the Prison Entrepreneurship Program (“PEP”), a Texas-based program that educates incarcerated men about the principles of business to become entrepreneurs upon release.82 82.Prison Entrepreneurship Program, https://www.pep.org [https://perma.cc/DAP4-WJHJ] (last visited Mar. 14, 2023).Show More PEP’s course includes a three-month Leadership Academy that focuses on character development, and a six-month Business Plan Competition––a sort of “shark tank” event.83 83.Empowering Innovation, Prison Entrepreneurship Program, https://www.pep.org/‌empowering-nnovation/ [https://perma.cc/484J-MBLL] (last visited Mar. 22, 2023).Show More PEP hosted a business competition during my visit, so a colleague joined me to judge several rounds of concept pitches. We provided feedback to each person, and the winner of the competition had a monetary prize set aside to support his business upon release. While everyone cannot win the monetary prize, every person upon completion of the program earns a Certificate in Entrepreneurship from Baylor University’s Hankamer School of Business.84 84.Id.Show More In addition to the academic work, PEP family liaisons partner with incarcerated men to complete a family survey and then use the results to open lines of communication with family members, if none exists, or to strengthen relationships that exist.85 85.Id.Show More

Another entrepreneurial program is RISE, a Nebraska-based program with a mission “[t]o break the generational cycles of incarceration.”86 86.Who We Are: Overview, RISE, https://www.seeusrise.org/who-we-are/ [https://‌perma.cc/GTD4-X9AK] (last visited Mar. 23, 2023).Show More It is the largest non-profit in the state focused solely on programs to support people in prison and upon release.87 87.Id.Show More RISE has several programs. One is the six-month In-Prison Program that focuses on job readiness, character development, and entrepreneurship.88 88.In-Prison Program, RISE, https://www.seeusrise.org/what-we-do/programs/ [https://‌perma.cc/NB8Z-CPBL] (last visited Mar. 14, 2023).Show More Another is the RISE Business Academy, which is a twelve-week program tailored to teaching business essentials.89 89.RISE Business Academy: About the Program, RISE, https://www.seeusrise.org/what-we-do/programs/rise-academy-business-program/ [https://perma.cc/8QWZ-ZEB5] (last visited Mar. 14, 2023).Show More After completion of the program, each person participates in a business pitch competition.90 90.Id.Show More A research assistant and I participated as judges, and afterward we participated in the first RISE graduation. Upon completion of the program, every person earns a Certificate of Career Readiness from the University of Nebraska Omaha’s School of Business Administration.91 91.United Way of the Midlands Awards $45,000 to RISE Grant to Fund Post-Release Programs, RISE (July 23, 2020), https://www.seeusrise.org/news/blog.html/article/2020/‌07/23/united-way-of-the-midlands-awards-45-000-to-rise-grant-to-fund-post-release-progra‌ms [https://perma.cc/L2MZ-6D5W].Show More RISE also has a ten-month Youth & Family Program to provide incarcerated men and women with courses to help them deal with family separation, conflict, and other issues.92 92.RISE Youth & Family Program, RISE, https://www.seeusrise.org/what-we-do/programs/rise-family-program.html [https://perma.cc/HV2X-42P2] (last visited Mar. 14, 2023).It is worth noting that the University of Virginia supports a credit-bearing certificate program for men and women living inside Virginia prisons through a partnership with Resilience Education. This Charlottesville-based nonprofit organization provides a complete, end-to-end solution and digital platform for graduate business and law students to teach and support incarcerated and formerly incarcerated individuals. To date, 700 incarcerated adults have earned certificates in entrepreneurship, business foundations, and personal finance through partnerships with Darden, Columbia, and Wharton business schools. To learn more about Resilience Education, go to https://www.resilience-education.org/ [https://perma.cc/‌2L5Q-ECMB].Show More

One takeaway for me from each prison I visited is that incarcerated adults have a desire to improve their lives through educational programs.93 93.See generally A Story to Tell: The Importance of Education During Incarceration as Told by 22 Men and Women Who Know Firsthand (Gerard Robinson ed., 2021), https://advancedstudiesinculture.org/wp-content/uploads/2021/03/a-story-to-tell_gerard_‌robinson4.pdf [https://perma.cc/KFM7-XEBY] (sharing firsthand accounts of the necessity of access to education during incarceration).Show More Another takeaway is that incarcerated people are often in the best position to utilize their entrepreneurial training to solve challenges they face inside and outside of prison. One challenge I heard repeatedly from incarcerated men and women in Texas and Nebraska—and in other states too—is figuring out how to make sure that their children do not end up in prison like them.

Children left behind due to parental incarceration is not uncommon. According to the Annie E. Casey Foundation, more than five million children—or one in fourteen minors under the age of eighteen—have had a parent incarcerated in prison or jail at some point in their lives.94 94.A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families and Communities, Annie E. Casey Found. 1 (2016), https://assets.aecf.org/m/resourcedoc/aecf-asharedsentence-2016.pdf [https://perma.cc/M93T-RQB3]; David Murphey & P. Mae Cooper, Parents Behind Bars: What Happens to Their Children?, Child Trends 3 (Oct. 2015), https://www.childtrends.org/wp-content/uploads/2015/10/2015-42ParentsBehindBars.pdf [https://perma.cc/N6L5-X6MH].Show More And of the nearly 5 million children who ever had a parent incarcerated in 2019–2020, over 2.1 million were white, 1.2 million were Black, 1 million were Hispanic, 44,018 were American Indian, and 20,771 were Asian or Pacific Islander.95 95.Children Who Had a Parent Who Was Ever Incarcerated By Race and Ethnicity in the United States, Kids Count Data Ctr., https://datacenter.kidscount.org/data/tables/9734-children-who-had-a-parent-who-was-ever-incarcerated-by-race-and-ethnicity#detailed/1/any‌/false/1769/10,11,9,12,1,13/18995,18996 [https://perma.cc/CSQ3-FAEC] (last visited Mar. 14, 2023).Show More In state prison, nearly 58% of females had minor children compared to 47% of men.96 96.Laura M. Maruschak, Jennifer Bronson & Mariel Alper, Survey of Prison Inmates, 2016: Parents in Prison and Their Minor Children, Bureau of Just. Stats. 1 (March 2021), https://bjs.ojp.gov/content/pub/pdf/pptmcspi16st.pdf [https://perma.cc/UQJ9-CNG2].Show More As for the race and gender of parents in state prison, 3 in 5 white and Hispanic (60% and 62%, respectively) women, and 1 in 2 Black (50%) women, were mothers of minors.97 97.Id. at 2.Show More

Given that children of the incarcerated are, on average, six times more likely to become incarcerated themselves,98 98.Eric Martin, Hidden Consequences: The Impact of Incarceration on Dependent Children, 2017 Nat’l Inst. of Just. J. 11, 12 (citation omitted).Show More we must broaden our list of problem solvers to include people living inside U.S. prisons. The first step toward this goal is to consider incarcerated parents as assets, not liabilities, in our battle to address the challenges associated with, in this instance, the generational child-to-prison pipeline. The second step is to take a lesson from the entrepreneurship programs I visited by sponsoring an in-prison business competition for incarcerated parents in every state. Incarcerated people without children, incarcerated parents that lost their legal rights to their children, or people who want to help create solutions are welcome to join the competition. The aim here is for people closest to the problem to pitch their solutions to the child-to-prison pipeline that include programs, a technology-driven idea that requires apps and games, or a new business. Each winner will receive a monetary gift to support the proposal for implementation upon release, along with professional coaching, and access to grants, loans, and early-stage seed funding.

C. Pell Grants and Civil Society Evaluation

The stories of the creation, demise, and resurrection of the Pell grant program are tales of three presidential administrations.99 99.For an overview of the legislative, executive, and judicial politics associated with the Pell grant program from 1965 to 2022, see generally Gerard Robinson, From “Undeserving Criminals” to “Second Chance Students”: Pell Grant Eligibility and Incarcerated Students. U. Pa. J. L. & Soc. Change Online (Apr. 1, 2022), https://www.law.upenn.edu/live/news/14647-from-undeserving-criminals-to-second-chance#_ednref22 [https://perma.cc/34MR-BNUF].Show More The first is President Lyndon Johnson. In a special message delivered on January 12, 1965 to Congress titled “Toward Full Educational Opportunity,” Johnson said, “Higher education is no longer a luxury, but a necessity.”100 100.Lyndon B. Johnson, Special Message to the Congress: “Toward Full Educational Opportunity” (Jan. 12, 1965), in 1 Pub. Papers 25, 30 (1965).Show More Ten months later, he signed the Higher Education Act of 1965 (“HEA”).101 101.Pub. L. No. 89-329, 79 Stat. 1219 (1965) (codified as amended in scattered sections of Title 20).Show More During the signing ceremony, Johnson provided a national vision for higher education:

The President’s signature upon this legislation passed by this Congress will swing open a new door for the young people of America. For them, and for this entire land of ours, it is the most important door that will ever open—the door to education. And this legislation is the key which unlocks it.102 102.Lyndon B. Johnson, “Remarks at Southwest Texas State College Upon Signing the Higher Education Act of 1965” (Nov. 8, 1965), in 2 Pub. Papers 1102, 1102 (1965).Show More

People locked behind prison walls was one group of higher education students that benefited from “the door to education” that was opened and paid for by what later became known as the Pell grant.103 103.With an amendment to HEA in 1972, the federal program was named The Basic Educational Opportunity Grant (“BEOG”). In 1980, BEOG was renamed to honor the work of Senator Claiborne Pell (D-RI) in higher education. From that point forward it is known as the Pell grant program. See Education Amendments of 1972, Pub. L. No. 92-318, §§ 401, 411, 86 Stat. 235, 247–51 (1972) (current version at 20 U.S.C. § 1070a); see also John Lee, The Early Years of the Pell Grant, in Reflections on Pell: Championing Social Justice through 40 Years of Educational Opportunity, The Pell Inst. 40–43 (June 2013), http://www.pellinstitute.org/downloads/publications-Reflections_on_Pell_June_2013.pdf [https://perma.cc/8FBP-DXR3] (detailing the early history of the BEOG and federal higher education priorities); Dallas Pell, To Restore Pell Grants in Prison is to Restore my Father’s Vision of Educational Opportunities for All, in Reflections on Pell: Championing Social Justice through 40 Years of Educational Opportunity, The Pell Inst. 86–87 (June 2013), http://www.pellinstitute.org/downloads/publications-Reflections_on_Pell_June_2013.pdf [https://perma.cc/8FBP-DXR3] (providing the thoughts of Senator Pell’s daughter on advancing her dad’s vision for higher education for incarcerated people, and her support of it through a membership in Education from the Inside Out coalition).Show More With the amendment to HEA in 1972, the number of incarcerated students using a Pell grant to pay for college grew from 11,000 in the 1970s to 23,000 by the mid-1990s.104 104.Gerard Robinson, Observations about the Second Chance Pell Experimental Sites Initiative, Advanced Stud. in Culture Found. 5–7 (June 2021).Show More

But in 1994, President Bill Clinton locked “the door to education” for incarcerated students when he signed the Violent Crime Control and Law Enforcement Act of 1994.105 105.Pub. L. No. 103-322, 108 Stat. 1796 (1994) (current version at 34 U.S.C. ch. 121).Show More According to the new “tough on crime” law:

SEC. 20411. Awards of Pell Grants to Prisoners Prohibited. (a) In General—Section 401(b)(8) of the Higher Education Act of 1965 (20 U.S.C. 1070a(b)(8)) is amended to read as follows: “(8) No basic grant shall be awarded under this subpart to any individual who is incarcerated in any Federal or State penal institution.”106 106.Id. § 20411.Show More

President Clinton had bipartisan support for abolishment of the Pell grant for incarcerated students. During the House debates about the bill in 1994, for example, Representative Bart Gordon’s (D-TN) statement about incarcerated Pell students represented what a lot of lawmakers thought at the time: “Law-abiding students have every right to be outraged when a Pell grant for a policeman’s child is cut but a criminal that the officer sends to prison can still get a big check.”107 107.Nick Anderson, Advocates Push to Renew Pell Grants for Prisoners, Citing Benefits of Higher Education, Wash. Post (Dec. 3, 2013), https://www.washingtonpost.com/local/‌education/when-congress-cut-pell-grants-for-prisone‌rs/2013/12/03/fedcabb2-5b94-11e3-a4‌9b-90a0e156254b_story.html [https://perma.cc/DG39-J5RP].Show More Jack Fields (R-TX) shared a similar theme: “Every dollar in Pell Grant funds obtained by prisoners means that fewer law-abiding students are eligible for assistance.”108 108.Robinson, supra note 104, at 6.Show More

The ban on Pell grants for incarcerated students did not go unchallenged. An incarcerated man in a New York state prison filed a pro se challenge in Nicholas v. Riley.109 109.874 F. Supp. 10 (D.D.C. 1995), aff’d sub nom. Nicholas v. Reno, No. 95-5047, 1995 WL 686227 (D.C. Cir. Oct. 10, 1995).Show More However, the U.S. District Court for the District of Columbia granted the government’s motion to dismiss because the plaintiff failed to state a claim upon which relief could be granted under the Equal Protection or Due Process Clauses.110 110.Id. at 12–15.Show More

Between 1995 and 2015, no Pell grant was awarded to incarcerated students in state and federal prisons. But this practice changed with President Barack Obama. On July 16, 2015, Obama became the first sitting president to visit a federal prison.111 111.Michael A. Memoli, Obama to Become First Sitting President to Visit a Prison, L.A. Times (July 10, 2015, 1:15 PM), https://www.latimes.com/nation/la-na-obama-prison-visit-20150710-story.html [https://perma.cc/2QFW-WGDZ].Show More That same week, Obama said we needed a comprehensive approach to giving people second chances.112 112.Sarah Wheaton, I Could Have Wound Up in Prison, Obama Tells Inmates, Politico (July 17, 2015, 12:04 AM), https://www.politico.com/story/2015/07/barack-obama-prison-visit-inmates-oklahoma-120241 [https://perma.cc/243A-8KKW].Show More A few weeks later, his administration announced the launch of what would come to be known as the Second Chance Pell Experimental Sites Initiative (“SCPESI”).113 113.Notice Inviting Postsecondary Educational Institutions to Participate in Experiments Under the Experimental Sites Initiative; Federal Student Financial Assistance Programs Under Title IV of the Higher Education Act of 1965, as Amended, 80 Fed. Reg. 45964 (Aug. 3, 2015), https://www.govinfo.gov/app/details/FR-2015-08-03/2015-18994 [https://perma.cc/‌TG5X-SPZW].Show More It allowed for an experimental program where prisons and postsecondary institutions would gain access to $30 million to fund Pell grants for 12,000 incarcerated students to see how SCPESI “[i]nfluences participation in education opportunities as well as academic and life outcomes.”114 114.Id.; see also Press Release, U.S. Dep’t of Educ., U.S. Department of Education Announces It Will Expand the Second Chance Pell Experiment for the 2022–2023 Award Year (July 30, 2021), https://www.ed.gov/news/press-releases/us-department-education-announces-it-will-expand-second-chance-pell-experiment-2022-2023-award-year [https://perma.cc/SJM3-Y3W8]. An article from The Washington Post contains both figures. See Danielle Douglas-Gabriel, 12,000 Inmates to Receive Pell Grants to Take College Classes, Wash. Post (June 24, 2016, 12:02 AM) https://www.washingtonpost.com/news/grade-point/wp/2016/06/24/12000-inmates-to-receive-pell-grants-to-take-college-classes/ [https://perma.cc/7N2X-BDF2].Show More

The number of postsecondary institutions participating in SCPESI increased from 67 colleges in 28 states in 2016 to 200 colleges working in prisons in 48 states, Washington, D.C., and Puerto Rico in 2022.115 115.Kimberly Hefling, Pell Grants for Prisoners Moves Forward, Roughly 12,000 Inmates Expected to Participate, Politico (June 24, 2016, 1:04 AM), https://www.politico.com/story/‌2016/06/pell-grants-prisoners-224756 [https://perma.cc/7GXT-Y4KP]; Kelsie Chestnut, Niloufer Taber & Jasmine Quintana, Second Chance Pell: Five Years of Expanding Higher Education Programs in Prisons, 2016–2021, Vera Inst. of Just. 1 (May 2022), https://www.vera.org/downloads/publications/second-chance-pell-five-years-of-expanding-access-to-education-in-prison-2016-2021.pdf [https://perma.cc/HR92-WHN8]; Myra Hyder, Accessing Pell Grants for College Programs in Correctional Settings, Vera Inst. of Just. 2 (Jan. 2023), https://www.vera.org/downloads/publications/accessing-pell-grants-for-college-progr‌ams-in-correctional-settings.pdf [https://perma.cc/9MFV-3BUY].Show More In terms of results for SCPESI participants, 22,117 unique––or “unduplicated”––students enrolled in the program between 2016–2020.116 116.Kelsie Chesnut & Allan Wachendorfer, Second Chance Pell: Four Years of Expanding Access to Education in Prison, Vera Inst. of Just. 1 (Apr. 2021), https://www.vera.org/‌downloads/publications/second-chance-pell-four-years-of-expanding-access-to-education-in-prison.pdf [https://perma.cc/ST22-YEM9]. The Vera Institute of Justice provides technical support to colleges and prisons participating in SCPESI.Show More From this group more than 7,000 students have earned a certificate or diploma (3,499), associate degree (3,035), or bachelor’s degree (540).117 117.Id. at 2.Show More

In 2020, “the door to education” was unlocked, once again, to Pell eligible students in prison when Congress passed the FAFSA Simplification Act.118 118.FAFSA Simplification Act, Pub. L. No. 116-260, div. FF, tit. vii, 134 Stat. 3137 (2020).Show More This Act lifted the ban on Pell grants for incarcerated students. On October 28, 2022, the U.S. Department of Education published final regulations to support the implementation of Pell grants back into prisons for the first time since the 1990s.119 119.87 Fed. Reg. 65426 (Oct. 28, 2022) (to be codified at 34 C.F.R. parts 600, 668, 690).Show More The regulations will take effect on July 1, 2023.120 120.Id.Show More

How does all of this relate to the school-to-prison pipeline?

Approximately 600,000 people leave state and federal prisons each year.121 121.FACT SHEET: Biden-⁠Harris Administration Expands Second Chance Opportunities for Formerly Incarcerated Persons, The White House (Apr. 26, 2022). https://www.whitehouse.‌gov/briefing-room/statements-releases/2022/04/26/fact-sheet-biden-harris-administration-ex‌pands-second-chance-opportunities-for-formerly-incarcerated-persons/ [https://perma.cc/2S‌ZW-4TZY].Show More Many of these men and women enrolled in education courses while incarcerated. A meta-analysis of thirty-seven years of literature about correctional education showed some promising trends for participants. One trend worth noting is that incarcerated people who enrolled in a correctional education program had 28% lower odds of recidivating than incarcerated peers that did not participate in correctional education.122 122.Robert Bozick, Jennifer Steele, Lois Davis & Susan Turner, Does Providing Inmates with Education Improve Postrelease Outcomes? A Meta-Analysis of Correctional Education Programs in the United States, 14 J. Experimental Criminology 389, 390 (2018).Show More

With the reinstatement of Pell grants for incarcerated students beginning in 2023, I expect more students will enroll in college-in-prison programs. Once they complete a program and return to their communities, I believe many of them will be an asset, be it professionally, economically, or academically.123 123.See A Story to Tell, supra note 93, at 15–49.Show More Others will be a role model to school-age students and drop-outs living in some of the toughest urban and rural zip codes in the state.

With this said, I would like to see an AmeriCorps-type program available to formerly incarcerated, Pell-educated people who want to work with families and youth involved in the school-to-prison pipeline. A longitudinal study component must accompany the program. For if the goal of SCPESI was to see how it “[i]nfluences participation in education opportunities as well as academic and life outcomes,”124 124.Notice Inviting Postsecondary Educational Institutions to Participate in Experiments Under the Experimental Sites Initiative; Federal Student Financial Assistance Programs Under Title IV of the Higher Education Act of 1965, as Amended, 80 Fed. Reg. 45964 (Aug. 3, 2015), https://www.govinfo.gov/app/details/FR-2015-08-03/2015-18994 [https://perma.cc/‌2PKB-J4WE].Show More a study of Pell-educated participants’ impact on reducing the school-to-prison pipeline, reducing future arrests and/or incarceration of youth in adulthood, and participation in civic society initiatives (to name only a few) is a worthy investment.

Conclusion

As we reflect on the San Antonio Independent School District v. Rodriguez decision at fifty years, we must broaden the lens by which we assess the impact this decision had on policies and practices that affect public education in general, but also its direct or indirect role in the growth of a black flower in American society known as the school-to-prison pipeline. Doing so will require us to review our ideals about the role of education in a democratic society, to redefine the meaning of accountability and punishment, and to reconsider the successes and challenges of American modernity.

  1.  Nathaniel Hawthorne, The Scarlet Letter 39 (Brian Harding ed., 2007). ↑
  2.  I use the term “school-to-prison” pipeline broadly to address the number of school-age children, adolescents, and teens who are justice-involved youth. How did they end up in the justice system? The pathway for some school-age youth began with a school referral to law enforcement officers based on a report of disruptive behavior—real or imagined. Another pathway for school-age youth is participation in illegal activities outside of school hours. Others arrive in the criminal justice system as children of an incarcerated mother or father, while factors such as race, gender, disability, poverty, or other issues not related directly to a school also provide a pathway. Thus, the “school-to-prison” pipeline phrase is myopic, in part, as a point of origin for this phenomenon. For this reason, I would prefer to name what we see a “child-to-prison” pipeline. Nevertheless, I will use school-to-prison pipeline because it remains the most well-known phrase to describe the topic in this Essay. ↑
  3.  411 U.S. 1 (1973). ↑
  4.  Id. at 35, 54–55. ↑
  5.  Id. at 58. ↑
  6.  See id. at 58–59; Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Creating New Pathways to Equal Educational Opportunity, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity 263, 264 (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015); see also A Federal Right to Education: Fundamental Questions for Our Democracy (Kimberly Jenkins Robinson ed., 2019) (examining why the United States should recognize a federal right to education, how to recognize it, and what it should guarantee); Derek Black, Unlocking the Power of State Constitutions with Equal Protection: The First Step Toward Education as a Federally Protected Right, 51 Wm. & Mary L. Rev. 1343, 1408 (2010) (arguing that Rodriguez left open the possibility of enforcing equal protection by relying on state court definitions of a “minimally adequate education”); Susan H. Bitensky, Theoretical Foundations for a Right to Education Under the U.S. Constitution: A Beginning to the End of the National Education Crisis, 86 Nw. U. L. Rev. 550, 554 (1992) (exploring potential constitutional theories for recognizing a right to education). ↑
  7.  Rodriguez, 411 U.S. at 40–44. ↑
  8.  Id. ↑
  9.  See Lyndon B. Johnson, Special Message to the Congress on Law Enforcement and the Administration of Justice, in 1 Pub. Papers 263, 263 (1965). ↑
  10.  Exec. Order No. 11,236, 3 C.F.R. 329 (1964–1965). ↑
  11.  Id. ↑
  12.  President’s Commission on Law Enforcement & Administration of Justice, The Challenge of Crime in a Free Society (1967), https://www.ojp.gov/sites/g/files/xyckuh241/‌files/archives/ncjrs/42.pdf [https://perma.cc/S36P-5W9X]. ↑
  13.  Id. at 55–89. ↑
  14.  Id. at 78–89. On page 89 is a chart to show the role of police in juvenile court and youth referrals compared to schools and parents. ↑
  15.  Id. at 79. ↑
  16.  See generally Am. Bar Ass’n, ABA Task Force on Reversing the School-to-Prison Pipeline: Report, Recommendations and Preliminary Report (Jan. 2018), [https://perma.cc/‌5NBC-33Z3] (discussing the school-to-prison pipeline and ways to stop it). ↑
  17.  Jason P. Nance, Students, Police, and the School-to-Prison Pipeline, 93 Wash. U. L. Rev. 919, 923 (2016). ↑
  18.  Andrew Bacher-Hicks, Stephen B. Billings & David J. Deming, Proving the School-to-Prison Pipeline: Stricter Middle Schools Raise the Risk of Adult Arrests, 21 Educ. Next 52, 54 (2021). ↑
  19.  Id. at 54. ↑
  20.  Id. at 52. ↑
  21.  Id. ↑
  22.  Id. at 56. ↑
  23.  Id. ↑
  24.  Id. at 55. ↑
  25.  Johanna Wald & Daniel J. Losen, Defining and Redirecting a School‐to‐Prison Pipeline, 2003 New Directions for Youth Dev. 9, 10 (2003) (citation omitted). ↑
  26.  Id. For more information about race, suspension, and disproportionality, see generally Johanna Wald & Daniel J. Losen, Out of Sight: The Journey Through the School-to-Prison Pipeline, in Invisible Children in the Society and Its Schools 23 (Sue Books ed., 3d ed. 2007); Edward J. Smith & Shaun R. Harper, Disproportionate Impact of K–12 School Suspension and Expulsion on Black Students in Southern States, Univ. of Penn., Ctr. for the Study of Race & Equity in Educ. (2015), https://race.usc.edu/wp-content/uploads/2020/08/Pub-14-Smith-and-Harper.pdf [https://perma.cc/S973-5WCA]. ↑
  27.  U.S. Comm’n on C.R., Beyond Suspensions: Examining School Discipline Policies and Connections to the School-to-Prison Pipeline for Students of Color with Disabilities 3 (July 2019) (citation omitted), https://www.usccr.gov/reports/2019/beyond-suspensions-exam‌ining-school-discipline-policies-and-connections-school-prison [https://perma.cc/8ZMQ-JZ‌KH]. ↑
  28.  Id. at 8 (citing Mills v. Bd. of Ed. of D.C., 348 F. Supp. 866, 875–76 (D.D.C. 1972). ↑
  29.  Off. for C.R., U.S. Dep’t of Educ., Civil Rights Data Collection: Data Snapshot (School Discipline) 1 (2014), https://ocrdata.ed.gov/assets/downloads/CRDC-School-Discipline-Snapshot.pdf [https://perma.cc/9MSJ-APLQ]. ↑
  30.  Id. ↑
  31.  Id. ↑
  32.  U.S. Comm’n on C.R., supra note 27, at 3–11. ↑
  33.  Id. at 5, 35. ↑
  34.  Subini Ancy Annamma et al., Black Girls and School Discipline: The Complexities of Being Overrepresented and Understudied, 54 Urban Educ. 211, 214 (2019), https://journals.sagepub.com/doi/epub/10.1177/0042085916646610 [https://perma.cc/P5GV-2EER] (referencing academic and U.S. Department of Education data about civil rights in education). ↑
  35.  Kimberlé Williams Crenshaw, Priscilla Ocen & Jyoti Nanda, Black Girls Matter: Pushed Out, Overpoliced and Underprotected, Afr. Am. Pol’y F. 23 (Feb. 4, 2015), https://www.aapf.org/_files/ugd/b77e03_e92d6e80f7034f30bf843ea7068f52d6.pdf [https://perma.cc/K2ME-TLV4]. ↑
  36.  Kayla Patrick, Adaku Onyeka-Crawford & Nancy Duchesneau, “ . . . And They Cared”: How to Create Better, Safer Learning Environments for Girls of Color, The Educ. Trust 9 (Aug. 20, 2020), https://edtrust.org/wp-content/uploads/2014/09/And-they-cared_How-to-create-better-safer-learning-environments-for-girls-of-color_Aug-2020.pdf [https://perma.cc/‌7F8W-WQFD]. ↑
  37.  Annamma et al., supra note 34, at 217. The authors identified four controlling images of Black women that influence how school personnel see Black girls:“(a) Mammy or Matriarch, a woman who is nurturing, loving, and sexless; (b) Sapphire, the emasculating, overly aggressive, unfeminine, or masculine, and loud female; (c) Jezebel, as hypersexualized woman who pursues and initiates sex; and (d) The Welfare Queen, the woman who is conniving, loud, talks back, and is vampiric, sucking off the system by having children and refusing to work.”

    See id. at 231 tbl.6 for a comparison of referral categories and dominant narratives about Black girls. ↑

  38.  Wald & Losen, supra note 25, at 11, referencing the impact of disciplinary action on girls in middle school and what it means for future actions in and out of school. See Am. Bar Ass’n & Nat’l Bar Ass’n, Justice by Gender: The Lack of Appropriate Prevention, Diversion and Treatment Alternatives for Girls in the Justice System, 9 Wm. & Mary J. Women & L. 73, 82–83 (2002). ↑
  39.  Nancy A. Heitzeg, Education or Incarceration: Zero Tolerance Policies and the School to Prison Pipeline, F. Pub. Pol’y, no. 2, 2009, at 3 (citation omitted), https://files.eric.ed.gov/‌fulltext/EJ870076.pdf [https://perma.cc/Z5QQ-V83V]. ↑
  40.  Id. (citation omitted). ↑
  41.  Id. (citation omitted). ↑
  42.  Id. ↑
  43.  Id. at 4. ↑
  44.  Pub. L. No. 103-322, 108 Stat. 1796 (1994). ↑
  45.  Ranya Shannon, 3 Ways the 1994 Crime Bill Continues to Hurt Communities of Color, Ctr. for Am. Progress (May 10, 2019), https://www.americanprogress.org/article/3-ways-1994-crime-bill-continues-hurt-communities-color/ [https://perma.cc/QG8F-YD73]. ↑
  46.  Pub. L. No. 103-382, 108 Stat. 3907 (1994) (codified at 20 U.S.C. § 7961). ↑
  47.  Id.; see, e.g., Education on Lockdown: The Schoolhouse to Jailhouse Track, Advancement Project 11–13 (Mar. 2005), https://www.justice4all.org/wp-content/uploads/‌2016/04/Education-on-Lockdown.pdf [https://perma.cc/J6NH-WPQV] (providing examples of how federal and state laws resulted in the suspension and arrest of students for weapons as well as for non-weapon related activities in several school districts). ↑
  48.  John J. Dilulio, Jr., The Coming of the Super-Predators, 1 Wkly. Standard 23 (1995). ↑
  49.  See The Campaign for the Fair Sent’g of Youth, The Origins of the Superpredator: The Child Study Movement to Today (May 2021), https://cfsy.org/wp-content/uploads/‌Superpredator-Origins-CFSY.pdf [https://perma.cc/QC2S-33M8]. ↑
  50.  Dilulio, supra note 48, at 25–26. ↑
  51.  Jonathan Capehart, Hillary Clinton on “Superpredator” Remarks: “I Shouldn’t Have Used Those Words,” Wash. Post (Feb. 25, 2016, 2:59 PM), https://www.washingtonpost.com/‌blogs/post-partisan/wp/2016/02/25/hillary-clinton-responds-to-activist-who-demanded-apology-for-superpredator-remarks/ [https://perma.cc/Q7JG-RLRM]. ↑
  52.  Id. For an overview of how forty major U.S. news outlets promoted the “super-predator” idea between 1995 and 2000, see generally Carroll Bogert & Lynnell Hancock, Superpredator: The Media Myth that Demonized a Generation of Black Youth, The Marshall Project (Nov. 20, 2020), https://www.themarshallproject.org/2020/11/20/superpredator-the-media-myth-that-demonized-a-generation-of-black-youth [https://perma.cc/KH7D-UL2B]. A video clip of John Dilulio and Hillary Clinton is here. ↑
  53.  Susan Ferriss, Virginia Tops Nation in Sending Students to Cops, Courts: Where Does Your State Rank?, Ctr. for Pub. Integrity (Apr. 10, 2015), https://publicintegrity.org/‌education/virginia-tops-nation-in-sending-students-to-cops-courts-where-does-your-state-rank/ [https://perma.cc/J9WP-87MK]. ↑
  54.  Id. ↑
  55.  Id. ↑
  56.  Editorial Board, Why is Va. Treating its Students—Especially its Black Students—Like Criminals?, Wash. Post (Oct. 22, 2017), https://www.washingtonpost.com/opinions/from-the-classroom-to-the-courts-in-va-too-many-students-get-treated-like-criminals/2017/10/22/‌119cda9a-b5d9-11e7-9e58-e6288544af98_story.html [https://perma.cc/35PN-HHQX]. ↑
  57.  Amy Woolard, Rachael Deane & Shannon Ellis, Decriminalizing Childhood: Ending School-Based Arrest for Disorderly Conduct, Legal Aid Just. Ctr. (Oct. 2019), https://www.justice4all.org/wp-content/uploads/2019/10/LAJC-DC-policy-brief-FINAL.pdf [https://perma.cc/GW7K-FQJ7]. ↑
  58.  Id. at 3. ↑
  59.  Id. at 4. ↑
  60.  Id. at 5. ↑
  61.  Id. ↑
  62.  S. 3, 2020 Gen. Assemb., Reg. Sess. (Va. 2020). ↑
  63.  S. 729, 2020 Gen. Assemb., Reg. Sess. (Va. 2020). ↑
  64.  Brendan Shillingford & Anya Sczerzenie, New Virginia Laws Seek to Close “School-to-Prison Pipeline”, AP News (Dec. 3, 2020), https://apnews.com/article/race-and-ethnicity-virginia-coronavirus-pandemic-richmond-bills-1c407c5efd8f05fa8be8e24c853c3f4e [https://perma.cc/GT6N-FFV3]. ↑
  65.  Id. ↑
  66.  2020 Va. Acts 241–42, 542. ↑
  67.  Am. Bar Ass’n, School to Prison Pipeline, Resolution Adopted by the House of Delegates, August 8–9, 2016 (Sept. 24, 2018), https://www.americanbar.org/groups/public_interest/‌child_law/resources/attorneys/school-to-prison-pipeline/ [https://perma.cc/5LN5-KL9X]. ↑
  68.  See generally School-to-Prison Pipeline, Am. C.L. Union, https://www.aclu.org/‌issues/juvenile-justice/school-prison-pipeline?redirect=racial-justice/what-school-prison-pip‌eline [https://perma.cc/WKZ9-8FH3] (explaining the ACLU’s legal and policy work dedicated to challenging the “school-to-prison pipeline”); Locating the School-to-Prison Pipeline, Am. C.L. Union (2008), https://www.aclu.org/sites/default/files/images/asset‌_upload_file966_35553.pdf [https://perma.cc/9FW5-J5B9] (identifying the “stops” on the path to incarceration including failing public schools, school discipline policies, and juvenile detention, among others). ↑
  69.  See generally NAACP Legal Def. & Educ. Fund, Dismantling the School-to-Prison Pipeline (2018), https://www.naacpldf.org/wp-content/uploads/Dismantling_the_School_‌to_Prison_Pipeline-2.pdf [https://perma.cc/PJ99-76VA] (identifying the school-to-prison pipeline as one of the most urgent challenges in education today). ↑
  70.  U.S. Dep’t of Health & Hum. Servs. & U.S. Dep’t of Educ., Policy Statement on Expulsion and Suspension Policies in Early Childhood Settings 8–11 (2014), https://oese.ed.gov/files/2020/07/policy-statement-ece-expulsions-suspensions.pdf [https://perma.cc/H4PX-SZ4K] (providing recommendations for state actions in early childhood settings). ↑
  71.  Judith A.M. Scully, Examining and Dismantling the School-to-Prison Pipeline: Strategies for a Better Future, 68 Ark. L. Rev. 959, 995–1003 & nn.247–308 (2016) (identifying examples of research and programs). ↑
  72.  957 F.3d. 616, 620–21 (6th Cir. 2020). ↑
  73.  Id. at 620, 659–60. ↑
  74.  Id. at 659. ↑
  75.  Press Release, State of Michigan Office of the Governor, Governor Whitmer and Plaintiffs Announce Settlement in Landmark Gary B. Literacy Case (May 14, 2020), https://www.michigan.gov/whitmer/news/press-releases/2020/05/14/governor-whitmer-and-plaintiffs-announce-settlement-in-landmark-gary-b–literacy-case [https://perma.cc/XG4Q-F7UP]. The attorney for the plaintiff, Mark Rosenbaum, linked literacy to democracy. “By accepting the Court’s decision that a minimum basic education is a foundational requirement for full participation in our democracy, Governor Whitmer is acknowledging that no child should be denied his or her right to fully pursue the American Dream based on the color of their skin or their family’s income.” Id. ↑
  76.  Valerie Strauss, Michigan Settles Historic Lawsuit After Court Rules Students Have a Constitutional Right to a ‘Basic’ Education, Including Literacy, Wash. Post (May 14, 2020, 12:50 PM), https://www.washingtonpost.com/education/2020/05/14/michigan-settles-histor‌ic-lawsuit-after-court-rules-students-have-constitutional-right-basic-education-including-liter‌acy/ [https://perma.cc/RXT3-DS5M]. ↑
  77.  Complaint at 1–3, Ella T. v. State, No. BC685730 (Cal. Super. Ct. Dec. 5, 2017). ↑
  78.  Valerie Strauss, California Students Who Sued the State Because They Can’t Read Just Won $53 Million for Troubled Schools, Wash. Post (Feb. 23, 2020, 10:00 AM), https://www.washingtonpost.com/education/2020/02/23/california-students-who-sued-state-because-they-cant-read-just-won-53-million-troubled-schools/ [https://perma.cc/2PET-PW‌UH]. ↑
  79.  Bobby D. Rampey et al., Nat’l Ctr. for Educ. Stats., NCES 2016-040, Highlights from the U.S. PIAAC Survey of Incarcerated Adults: Their Skills, Work Experience, Education, and Training 5–7, 25 (2016), https://nces.ed.gov/pubs2016/2016040.pdf [https://perma.cc/4GVM-6HEE]. ↑
  80.  Caroline Wolf Harlow, Special Report, Education and Correctional Populations, Bureau of Just. Stats. 1 (Apr. 15, 2003), https://www.bjs.gov/index.cfm?ty=pbdetail&iid=814 [https://perma.cc/R9TY-696B]. ↑
  81.  For an overview of four types of correctional education programs inside prison, see Lois M. Davis et al., Evaluating the Effectiveness of Correctional Education: A Meta-Analysis of Programs That Provide Education to Incarcerated Adults, RAND Corp. 1 (2013), https://www.rand.org/pubs/research_reports/RR266.html [https://perma.cc/H6DR-PVU9]. ↑
  82.  Prison Entrepreneurship Program, https://www.pep.org [https://perma.cc/DAP4-WJHJ] (last visited Mar. 14, 2023). ↑
  83.  Empowering Innovation, Prison Entrepreneurship Program, https://www.pep.org/‌empowering-nnovation/ [https://perma.cc/484J-MBLL] (last visited Mar. 22, 2023). ↑
  84.  Id. ↑
  85.  Id. ↑
  86.  Who We Are: Overview, RISE, https://www.seeusrise.org/who-we-are/ [https://‌perma.cc/GTD4-X9AK] (last visited Mar. 23, 2023). ↑
  87.  Id. ↑
  88.  In-Prison Program, RISE, https://www.seeusrise.org/what-we-do/programs/ [https://‌perma.cc/NB8Z-CPBL] (last visited Mar. 14, 2023). ↑
  89.  RISE Business Academy: About the Program, RISE, https://www.seeusrise.org/what-we-do/programs/rise-academy-business-program/ [https://perma.cc/8QWZ-ZEB5] (last visited Mar. 14, 2023). ↑
  90.  Id. ↑
  91.  United Way of the Midlands Awards $45,000 to RISE Grant to Fund Post-Release Programs, RISE (July 23, 2020), https://www.seeusrise.org/news/blog.html/article/2020/‌07/23/united-way-of-the-midlands-awards-45-000-to-rise-grant-to-fund-post-release-progra‌ms [https://perma.cc/L2MZ-6D5W]. ↑
  92.  RISE Youth & Family Program, RISE, https://www.seeusrise.org/what-we-do/programs/rise-family-program.html [https://perma.cc/HV2X-42P2] (last visited Mar. 14, 2023).It is worth noting that the University of Virginia supports a credit-bearing certificate program for men and women living inside Virginia prisons through a partnership with Resilience Education. This Charlottesville-based nonprofit organization provides a complete, end-to-end solution and digital platform for graduate business and law students to teach and support incarcerated and formerly incarcerated individuals. To date, 700 incarcerated adults have earned certificates in entrepreneurship, business foundations, and personal finance through partnerships with Darden, Columbia, and Wharton business schools. To learn more about Resilience Education, go to https://www.resilience-education.org/ [https://perma.cc/‌2L5Q-ECMB]. ↑
  93.  See generally A Story to Tell: The Importance of Education During Incarceration as Told by 22 Men and Women Who Know Firsthand (Gerard Robinson ed., 2021), https://advancedstudiesinculture.org/wp-content/uploads/2021/03/a-story-to-tell_gerard_‌robinson4.pdf [https://perma.cc/KFM7-XEBY] (sharing firsthand accounts of the necessity of access to education during incarceration). ↑
  94.  A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families and Communities, Annie E. Casey Found. 1 (2016), https://assets.aecf.org/m/resourcedoc/aecf-asharedsentence-2016.pdf [https://perma.cc/M93T-RQB3]; David Murphey & P. Mae Cooper, Parents Behind Bars: What Happens to Their Children?, Child Trends 3 (Oct. 2015), https://www.childtrends.org/wp-content/uploads/2015/10/2015-42ParentsBehindBars.pdf [https://perma.cc/N6L5-X6MH]. ↑
  95.  Children Who Had a Parent Who Was Ever Incarcerated By Race and Ethnicity in the United States, Kids Count Data Ctr., https://datacenter.kidscount.org/data/tables/9734-children-who-had-a-parent-who-was-ever-incarcerated-by-race-and-ethnicity#detailed/1/any‌/false/1769/10,11,9,12,1,13/18995,18996 [https://perma.cc/CSQ3-FAEC] (last visited Mar. 14, 2023). ↑
  96.  Laura M. Maruschak, Jennifer Bronson & Mariel Alper, Survey of Prison Inmates, 2016: Parents in Prison and Their Minor Children, Bureau of Just. Stats. 1 (March 2021), https://bjs.ojp.gov/content/pub/pdf/pptmcspi16st.pdf [https://perma.cc/UQJ9-CNG2]. ↑
  97.  Id. at 2. ↑
  98.  Eric Martin, Hidden Consequences: The Impact of Incarceration on Dependent Children, 2017 Nat’l Inst. of Just. J. 11, 12 (citation omitted). ↑
  99.  For an overview of the legislative, executive, and judicial politics associated with the Pell grant program from 1965 to 2022, see generally Gerard Robinson, From “Undeserving Criminals” to “Second Chance Students”: Pell Grant Eligibility and Incarcerated Students. U. Pa. J. L. & Soc. Change Online (Apr. 1, 2022), https://www.law.upenn.edu/live/news/14647-from-undeserving-criminals-to-second-chance#_ednref22 [https://perma.cc/34MR-BNUF]. ↑
  100.  Lyndon B. Johnson, Special Message to the Congress: “Toward Full Educational Opportunity” (Jan. 12, 1965), in 1 Pub. Papers 25, 30 (1965). ↑
  101.  Pub. L. No. 89-329, 79 Stat. 1219 (1965) (codified as amended in scattered sections of Title 20). ↑
  102.  Lyndon B. Johnson, “Remarks at Southwest Texas State College Upon Signing the Higher Education Act of 1965” (Nov. 8, 1965), in 2 Pub. Papers 1102, 1102 (1965). ↑
  103.  With an amendment to HEA in 1972, the federal program was named The Basic Educational Opportunity Grant (“BEOG”). In 1980, BEOG was renamed to honor the work of Senator Claiborne Pell (D-RI) in higher education. From that point forward it is known as the Pell grant program. See Education Amendments of 1972, Pub. L. No. 92-318, §§ 401, 411, 86 Stat. 235, 247–51 (1972) (current version at 20 U.S.C. § 1070a); see also John Lee, The Early Years of the Pell Grant, in Reflections on Pell: Championing Social Justice through 40 Years of Educational Opportunity, The Pell Inst. 40–43 (June 2013), http://www.pellinstitute.org/downloads/publications-Reflections_on_Pell_June_2013.pdf [https://perma.cc/8FBP-DXR3] (detailing the early history of the BEOG and federal higher education priorities); Dallas Pell, To Restore Pell Grants in Prison is to Restore my Father’s Vision of Educational Opportunities for All, in Reflections on Pell: Championing Social Justice through 40 Years of Educational Opportunity, The Pell Inst. 86–87 (June 2013), http://www.pellinstitute.org/downloads/publications-Reflections_on_Pell_June_2013.pdf [https://perma.cc/8FBP-DXR3] (providing the thoughts of Senator Pell’s daughter on advancing her dad’s vision for higher education for incarcerated people, and her support of it through a membership in Education from the Inside Out coalition). ↑
  104.  Gerard Robinson, Observations about the Second Chance Pell Experimental Sites Initiative, Advanced Stud. in Culture Found. 5–7 (June 2021). ↑
  105.  Pub. L. No. 103-322, 108 Stat. 1796 (1994) (current version at 34 U.S.C. ch. 121). ↑
  106.  Id. § 20411. ↑
  107.  Nick Anderson, Advocates Push to Renew Pell Grants for Prisoners, Citing Benefits of Higher Education, Wash. Post (Dec. 3, 2013), https://www.washingtonpost.com/local/‌education/when-congress-cut-pell-grants-for-prisone‌rs/2013/12/03/fedcabb2-5b94-11e3-a4‌9b-90a0e156254b_story.html [https://perma.cc/DG39-J5RP]. ↑
  108.  Robinson, supra note 104, at 6. ↑
  109.  874 F. Supp. 10 (D.D.C. 1995), aff’d sub nom. Nicholas v. Reno, No. 95-5047, 1995 WL 686227 (D.C. Cir. Oct. 10, 1995). ↑
  110.  Id. at 12–15. ↑
  111.  Michael A. Memoli, Obama to Become First Sitting President to Visit a Prison, L.A. Times (July 10, 2015, 1:15 PM), https://www.latimes.com/nation/la-na-obama-prison-visit-20150710-story.html [https://perma.cc/2QFW-WGDZ]. ↑
  112.  Sarah Wheaton, I Could Have Wound Up in Prison, Obama Tells Inmates, Politico (July 17, 2015, 12:04 AM), https://www.politico.com/story/2015/07/barack-obama-prison-visit-inmates-oklahoma-120241 [https://perma.cc/243A-8KKW]. ↑
  113.  Notice Inviting Postsecondary Educational Institutions to Participate in Experiments Under the Experimental Sites Initiative; Federal Student Financial Assistance Programs Under Title IV of the Higher Education Act of 1965, as Amended, 80 Fed. Reg. 45964 (Aug. 3, 2015), https://www.govinfo.gov/app/details/FR-2015-08-03/2015-18994 [https://perma.cc/‌TG5X-SPZW]. ↑
  114.  Id.; see also Press Release, U.S. Dep’t of Educ., U.S. Department of Education Announces It Will Expand the Second Chance Pell Experiment for the 2022–2023 Award Year (July 30, 2021), https://www.ed.gov/news/press-releases/us-department-education-announces-it-will-expand-second-chance-pell-experiment-2022-2023-award-year [https://perma.cc/SJM3-Y3W8]. An article from The Washington Post contains both figures. See Danielle Douglas-Gabriel, 12,000 Inmates to Receive Pell Grants to Take College Classes, Wash. Post (June 24, 2016, 12:02 AM) https://www.washingtonpost.com/news/grade-point/wp/2016/06/24/12000-inmates-to-receive-pell-grants-to-take-college-classes/ [https://perma.cc/7N2X-BDF2]. ↑
  115.  Kimberly Hefling, Pell Grants for Prisoners Moves Forward, Roughly 12,000 Inmates Expected to Participate, Politico (June 24, 2016, 1:04 AM), https://www.politico.com/story/‌2016/06/pell-grants-prisoners-224756 [https://perma.cc/7GXT-Y4KP]; Kelsie Chestnut, Niloufer Taber & Jasmine Quintana, Second Chance Pell: Five Years of Expanding Higher Education Programs in Prisons, 2016–2021, Vera Inst. of Just. 1 (May 2022), https://www.vera.org/downloads/publications/second-chance-pell-five-years-of-expanding-access-to-education-in-prison-2016-2021.pdf [https://perma.cc/HR92-WHN8]; Myra Hyder, Accessing Pell Grants for College Programs in Correctional Settings, Vera Inst. of Just. 2 (Jan. 2023), https://www.vera.org/downloads/publications/accessing-pell-grants-for-college-progr‌ams-in-correctional-settings.pdf [https://perma.cc/9MFV-3BUY]. ↑
  116.  Kelsie Chesnut & Allan Wachendorfer, Second Chance Pell: Four Years of Expanding Access to Education in Prison, Vera Inst. of Just. 1 (Apr. 2021), https://www.vera.org/‌downloads/publications/second-chance-pell-four-years-of-expanding-access-to-education-in-prison.pdf [https://perma.cc/ST22-YEM9]. The Vera Institute of Justice provides technical support to colleges and prisons participating in SCPESI. ↑
  117.  Id. at 2. ↑
  118.  FAFSA Simplification Act, Pub. L. No. 116-260, div. FF, tit. vii, 134 Stat. 3137 (2020). ↑
  119.  87 Fed. Reg. 65426 (Oct. 28, 2022) (to be codified at 34 C.F.R. parts 600, 668, 690). ↑
  120.  Id. ↑
  121.  FACT SHEET: Biden-⁠Harris Administration Expands Second Chance Opportunities for Formerly Incarcerated Persons, The White House (Apr. 26, 2022). https://www.whitehouse.‌gov/briefing-room/statements-releases/2022/04/26/fact-sheet-biden-harris-administration-ex‌pands-second-chance-opportunities-for-formerly-incarcerated-persons/ [https://perma.cc/2S‌ZW-4TZY]. ↑
  122.  Robert Bozick, Jennifer Steele, Lois Davis & Susan Turner, Does Providing Inmates with Education Improve Postrelease Outcomes? A Meta-Analysis of Correctional Education Programs in the United States, 14 J. Experimental Criminology 389, 390 (2018). ↑
  123.  See A Story to Tell, supra note 93, at 15–49. ↑

  124.  Notice Inviting Postsecondary Educational Institutions to Participate in Experiments Under the Experimental Sites Initiative; Federal Student Financial Assistance Programs Under Title IV of the Higher Education Act of 1965, as Amended, 80 Fed. Reg. 45964 (Aug. 3, 2015), https://www.govinfo.gov/app/details/FR-2015-08-03/2015-18994 [https://perma.cc/‌2PKB-J4WE]. ↑

The Federal Role in School Funding Equity

Introduction

Fifty years after the San Antonio Independent School District v. Rodriguez decision, the fundamental reality of school finance inequity remains a central feature of American public schools. Local school funding is still based primarily on local property taxes and reflects large disparities in property values between wealthy and low-income communities.1 1.See Daphne Kenyon, Bethany Paquin & Semida Munteanu, Public Schools and the Property Tax: A Comparison of Education Funding Models in Three U.S. States, Land Lines, Apr. 2022, at 32, 34–35, https://www.lincolninst.edu/sites/default/files/pubfiles/public-schools-property-tax-lla220406.pdf [https://perma.cc/TMY4-QGZA].Show More State aid to education is a significant source of additional funding, but it is particularly vulnerable to economic downturns and is not enough in many states to close these funding gaps.2 2.See, e.g., id. at 37.Show More Finally, federal aid is explicitly designed to support low-income students, but its relative size is small: since at least the 1980s, it has remained less than ten percent of the funds that schools receive in most years.3 3.See Nat’l Ctr. for Educ. Stats., NCES 2002-129, Federal Support for Education: Fiscal Years 1980 to 2001, at iii (Nov. 2001), https://nces.ed.gov/pubs2002/2002129.pdf [https://perma.cc/3CBR-D8FE]; Public School Revenue Sources, Nat’l Ctr. for Educ. Stats.: Condition of Education 1 (May 2022), https://nces.ed.gov/programs/coe/pdf/2022/cma‌_508.pdf [https://perma.cc/RN5F-4VFX]; How is K–12 Education Funded?, Peter G. Peterson Found. (Aug. 16, 2022), https://www.pgpf.org/budget-basics/how-is-k-12-education-funded [https://perma.cc/4URP-UABJ].Show More

The Rodriguez decision largely foreclosed the possibility of remedying school funding inequities through federal courts. The majority’s core holding was that education is not a fundamental right and therefore judicial scrutiny of these inequities is limited to rational basis.4 4.San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35, 40 (1973).Show More After the decision, many states faced litigation in state courts around inequities and inadequacies in school funding based on clauses in their state constitutions.5 5.Jeffrey S. Sutton, San Antonio Independent School District v. Rodriguez and Its Aftermath, 94 Va. L. Rev 1963, 1974 (2008) (noting that, “as of June 2008, forty-five States have faced state-constitutional challenges to their systems of funding public schools”). While the first generation of state school finance cases focused primarily on inequality in school funding, the next generation of cases focused increasingly on the adequacy of educational funding levels. Id. at 1973.Show More These state court decisions contributed to narrowing the spending disparities within states in many cases, but these gains were difficult to sustain over time and did not address inequities across state lines or within local school districts.6 6.Eric A. Houck & Elizabeth DeBray, The Shift From Adequacy to Equity in Federal Education Policymaking: A Proposal for How ESEA Could Reshape the State Role in Education Finance, RSF, Dec. 2015, at 148, 150–53, https://www.rsfjournal.org/content/rsfjs​s/1/3/148.full.pdf [https://perma.cc/BM5M-7M6P]; see also Dennis J. Condron, The Waning Impact of School Finance Litigation on Inequality in Per Student Revenue During the Adequacy Era, 43 J. Educ. Fin. 1, 18 (2017).Show More Many decades after the Rodriguez decision, fundamental inequities in school financing remain the norm.

Although the federal government’s major investments in elementary and secondary education pre-dated the Rodriguez decision7 7.See Elementary and Secondary Education Act of 1965, Pub. L. No. 89-10, 79 Stat. 27 (codified as amended in scattered sections of 20 U.S.C.).Show More, in the last two decades those funds have sought to leverage wide-ranging changes in American schooling. While these sometimes controversial interventions seem to have increased state investments in public education, the impact on school funding disparities has been more modest. This Essay will examine the efforts by the federal government to foster greater equity in school financing and assess several alternative approaches that might be more effective. After a brief overview of federal education funding, the Essay will analyze the legacy of the Rodriguez decision on school funding and examine the evolution of federal strategies to expand educational equity.

I. Overview of Federal Education Funding

As originally enacted, the Elementary and Secondary Education Act (“ESEA”) of 1965 sought to fill the gaps in funding for low-income students through the creation of the Title I program.8 8.Elementary and Secondary Education Act of 1965, Pub. L. No. 89-10, § 201, 79 Stat. 27, 27 (repealed 1978).Show More Soon after its launch, growing concern that states were reducing their own commitments to education funding led to explicit provisions that require that Title I funding “supplement, not supplant” existing funding.9 9.Every Student Succeeds Act, Pub. L. No. 114-95, § 1012, 192 Stat. 1802, 1875 (2015) (codified as amended at 20 U.S.C. § 6321(b)(1)).Show More Therefore, a central feature of federal funding has long been to respond to and help remedy inequitable state and local investments in schools serving low-income students.

In the two decades since the 2002 reauthorization of ESEA, the share of funding tied to equity increased substantially. The Title I funding formula now explicitly includes state school funding equity as a component.10 10.Rebecca R. Skinner, Cong. Rsch. Serv., RL 45977, The Elementary and Secondary Education Act (ESEA), as Amended by the Every Student Succeeds Act (ESSA): A Primer 3 (2022).Show More The most recent reauthorization in 2015 required states to provide school funding data down to the school level and included provisions to respond to the teacher quality gap between schools in wealthy and low-income communities.11 11.Id.; see also Every Student Succeeds Act § 2001, 129 Stat. at 1914 (codified at 20 U.S.C. § 6601).Show More Finally, large increases in pandemic funding through the American Rescue Plan Act of 2021 included specific Maintenance of Equity provisions designed to ensure that low-income schools not lose ground in terms of state and local funding.12 12.American Rescue Plan Act of 2021, § 2004(b), (c), 135 Stat. 4, 25.Show More

In contrast with its approach to funding equity, the federal government took a much more aggressive approach to conditioning Title I funding on specific outcomes in the No Child Left Behind Act (“NCLB”). Evidence suggests that the NCLB contributed to an increase in state funding for education, but it did not meaningfully impact school funding disparities.13 13.Thomas S. Dee & Brian A. Jacob, The Impact of No Child Left Behind on Students, Teachers, and Schools, Brookings Papers on Econ. Activity, Fall 2010, at 149, 176–77.Show More Critics of the existing Title I program point out that its extremely broad distribution of funds limits its impact on children living in poverty, and that its complex formula fails to adequately address inequities in education funding between or within states.14 14.See, e.g., Nora Gordon & Martin R. West, Memo: Federal School Finance Policy, Brookings: Brown Ctr. Chalkboard (Dec. 8, 2016), www.brookings.edu/blog/brown-center-chalkboard/2016/12/08/memo-federal-school-finance-policy/ [https://perma.cc/L2TS-ETP5].Show More

A range of alternatives to the current federal formula are possible, and it is likely that many of them would lead to somewhat greater equity in school funding. However, as long as federal funding remains at less than ten percent of total education funding, the more significant impact of federal resources is its capacity to leverage states and localities to expand their own commitment to funding equity. While many scholars are skeptical about the leveraging potential of the relatively small share of federal funding for public education,15 15.See, e.g., Goodwin Liu, Interstate Inequality in Educational Opportunity, 81 N.Y.U. L. Rev. 2044, 2114 (2006).Show More the impact of these funds on state learning standards was much larger than would be expected from the size of the funding alone.

II. The Legacy of Rodriguez on School Funding

In the field of education and beyond, San Antonio Independent School District v. Rodriguez remains one of the most important and controversial constitutional decisions by the Supreme Court. A narrow 5-4 majority rejected the claim that education was a fundamental right, leaving it to the states and the ordinary political process to determine the future of school funding.16 16.San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (“Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.”).Show More While the majority rejected strict scrutiny as the standard of review, the dissenters argued that the system of school finance in Texas violated even the much lower standard of rational basis.17 17.Id. at 67–68 (White, J., dissenting).Show More Although the United States Supreme Court later suggested that an absolute denial of free public education was unconstitutional, it ultimately reaffirmed that there is no fundamental right to education under the United States Constitution.18 18.See Plyler v. Doe, 457 U.S. 202, 221 (1982) (“Public education is not a ‘right’ granted to individuals by the Constitution. But neither is it merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation. . . . In sum, education has a fundamental role in maintaining the fabric of our society.” (citation omitted)). But in Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 458 (1988), the Court reaffirmed that education is not a fundamental right under the Equal Protection Clause.Show More

At the heart of the Rodriguez case was the striking inequity in funding between low-income and wealthier communities. In affluent Alamo Heights, the spending per student was nearly two times the amount as in low-income Edgewood.19 19.See Rodriguez, 411 U.S. at 12–13.Show More The state gave both communities about the same amount of funding, and more federal funds went to Edgewood, but most of the funding came from local property taxes.20 20.Id. at 12–14.Show More The median property value per student was more than eight times higher in Alamo Heights, and the locality provided just under thirteen times the amount for each student as in Edgewood.21 21.Id. at 12–13.Show More The local tax rate was higher in low-income Edgewood, but the much lower property values still meant much less funding for education.22 22.Id.Show More

In the wake of the Rodriguez decision, Justice William Brennan, a former state Supreme Court justice, wrote in the Harvard Law Review arguing that plaintiffs should seek to vindicate constitutional claims like the one in San Antonio through state courts.23 23.William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977) (urging lawyers turn to state supreme courts because the Burger Court was unlikely to be receptive to claims from “politically powerless groups whose members have historically been subjected to purposeful discrimination”).Show More In the years that followed, nearly every state faced litigation over inequities and inadequacies in their systems of school financing. State Supreme Courts across the country held unconstitutional these systems of school financing, but the impact of judicial remedies was uneven, and without ongoing judicial oversight, the shift in the distribution of resources was often short-lived.24 24.See James E. Ryan, Standards, Testing, and School Finance Litigation, 86 Tex. L. Rev. 1223, 1260 (2008) (“School finance litigation, in other words, does not create a self-sustaining reform. Indeed, there are no examples of states where plaintiffs have won a school finance case and legislatures have responded adequately without any further court involvement.”).Show More

Despite these shortcomings, state court litigation did contribute to an expansion of state aid to public schools and to a narrowing of the level of inequity in school financing across districts within many states.25 25.Condron, supra note 6, at 18.Show More But state courts could not address inequities in the level of education funding across state lines, nor did most remedy inequities in the level of funding within local school districts.26 26.Houck & DeBray, supra note 6, at 150–53.Show More Moreover, this trajectory toward greater equity within states in school finance was reversed in the wake of the Great Recession.

In the decade after the Great Recession, public school students lost almost $600 billion in revenue.27 27.Danielle Farrie & David G. Sciarra, Educ. L. Ctr., $600 Billion Lost: State Disinvestment in Education Following the Great Recession 2 (2020), https://edlawcenter.org/assets/‌$600%20Billion/$600%20Billion%20Lost.pdf [https://perma.cc/H2TN-6KF3] (last visited Feb. 24, 2023).Show More The decline in funding was most dramatic in terms of state aid, which contributes the most to equalizing funding across local districts, though not enough to close the funding gap.28 28.Sylvia Allegretto, Emma García & Elaine Weiss, Public Education Funding in the U.S. Needs an Overhaul: How a Larger Federal Role Would Boost Equity and Shield Children from Disinvestment During Downturns, Econ. Pol’y Inst. 13–15, 21 (July 12, 2022), https://files.epi.org/uploads/233143.pdf [https://perma.cc/JSS5-LMQW].Show More On average, per-pupil state spending fell by 7%, while in seven states it fell by more than 10% and in two states it declined by over 20%.29 29.C. Kirabo Jackson, Cora Wigger & Heyu Xiong, Do School Spending Cuts Matter? Evidence from the Great Recession, 13 Am. Econ. J. 304, 304 (2021).Show More The state share of education spending fell from about 27% before the Great Recession to about 23% afterward, and it remained at that level through 2015.30 30.Id. at 312.Show More

As a result of declining state education funding, the gap in school funding between wealthy and low-income districts grew after the Great Recession.31 31.See William N. Evans, Robert M. Schwab & Kathryn L. Wagner, The Great Recession and Public Education, 14 Educ. Fin. and Pol’y 298, 300, 314–16 (2019); see also David S. Knight, Nail Hassairi, Christopher A. Candelaria, Min Sun & Margaret L. Plecki, Prioritizing School Finance Equity During an Economic Downturn: Recommendations for State Policy Makers, 17 Educ. Fin. & Pol’y 188, 189–91 (2022) (highlighting the disproportionate funding cuts high-poverty school districts experienced in the aftermath of the Great Recession).Show More With growing inequity and shrinking budgets, the five decade increase in student reading and math scores was stopped in its tracks.32 32.Jackson et al., supra note 29, at 310.Show More Although wealthy districts lost more than $500 per student on average, the highest poverty districts in the same state lost over $1,000 in state education funding.33 33.Knight et al., supra note 31, at 191.Show More On average, high-poverty districts lost twice as much state funding as low-poverty districts and only kept close to prior funding levels by further increasing the property tax rates on a relatively low tax base.34 34.Id. See also Proposed Requirement—American Rescue Plan Act Elementary and Secondary School Emergency Relief Fund, 87 Fed. Reg. 57 (proposed Jan. 3, 2022) (to be codified at 34 C.F.R. ch. 2).Show More

III. Evolution of the Federal Role in School Funding Equity

In 1965, Congress passed the Elementary and Secondary Education Act. At the heart of the ESEA was Title I, which was designed to bring educational opportunity to students from households living in poverty.35 35.Elementary and Secondary Education Act of 1965, Pub. L. No. 89-10, § 201, 79 Stat. 27, 27 (repealed 1978).Show More Title I was intended to be distributed to local school districts with a significant share of low-income students in order to close existing educational funding inequities.36 36.Id.Show More Congress pledged to increase Title I funding to over $25 billion by fiscal year 2007,37 37.Alyson Klein, No Child Left Behind: An Overview, Educ. Wkly. (Apr. 10, 2015), https://www.edweek.org/policy-politics/no-child-left-behind-an-overview/2015/04 [https://‌perma.cc/2AYA-T9TP].Show More but more than a decade later it remained at only approximately $15.5 billion.38 38.Improving Basic Programs Operated by Local Educational Agencies (Title I, Part A): Funding Status, U.S. Dep’t of Educ. (Oct. 24, 2018), https://www2.ed.gov/programs/‌titleiparta/funding.html [https://perma.cc/SV9Q-6BSJ].Show More

Overall, federal funding is more progressive than state or local funding within local school districts in its distribution of resources to low-income versus wealthy schools. States themselves vary tremendously in both their level of investment in education per student and their level of progressivity in that investment.39 39.Michael Hansen, Jon Valant & Nicholas Zerbino, Do School Districts Allocate More Resources to Economically Disadvantaged Students?, Brookings (2022), https://www.brookin​gs.edu/multi-chapter-report/do-school-districts-allocate-more-resources-to-economically-dis​advantaged-students [https://perma.cc/JPV6-SFSU].Show More While most federal funding gets to schools with high levels of poverty, the overall funding is spread thinly across the nation.40 40.EXPLAINED: What Is Title I and How Is It Used to Fund Our Schools?, Ed Post (Aug. 12, 2021), https://www.edpost.com/explainer/explained-what-is-title-i-and-how-is-it-used-to-fund-our-schools [https://perma.cc/QL9X-5C2B] (noting that approximately 60% of public schools in the United States receive some Title I funding).Show More Large gaps in teacher quality between low-income and wealthy schools contribute to significant inequities in spending between schools within local school districts that the Title I formula does not adequately address.41 41.Stephanie Stullich, U.S. Dep’t of Educ., The Potential Impact of Revising the Title I Comparability Requirement to Focus on School-Level Expenditures 2 (Nov. 2011), https://www2.ed.gov/rschstat/eval/title-i/comparability-requirement/comparability-policy-brief.pdf [https://perma.cc/6NXM-D2BZ].Show More

In 2002 Congress updated the ESEA with the passage of the controversial but impactful No Child Left Behind Act. The NCLB was designed to leverage federal funding to catalyze states to adopt learning standards for math and reading and to implement and report the results of annual testing of students in elementary, middle, and high school.42 42.Executive Summary for No Child Left Behind Act, U.S. Dep’t of Educ. (Feb. 10, 2004), www2.ed.gov/nclb/overview/intro/execsumm.html [https://perma.cc/NA5Y-4CJ6].Show More The NCLB sought to bring all students to proficiency, as defined by the state adopted standard, within just over a decade.43 43.Id.Show More It also required that all teachers hired with Title I funding had to be highly qualified within a few years and that all paraprofessionals also meet minimum education and licensing criteria.44 44.Id.Show More These “highly qualified” teachers were supposed to be evenly distributed across schools with lower and higher concentrations of poverty.

NCLB threatened states and local school districts with the loss of Title I funding if they failed to implement the standards and testing, or failed to make sufficient progress toward student proficiency.45 45.Dee & Jacob, supra note 13, at 154.Show More Recent studies of the impact of NCLB suggest that it contributed to an increase in state spending on schools, but that it did not noticeably lead to greater equity in state school funding.46 46.Id. at 176–77.Show More One estimate looking at states which adopted learning standards after the passage of NCLB found an average increase in spending by school districts of $570 per student, an increase of 6.8%.47 47.Id. at 176.Show More However, this increase in spending reflected state and not federal funding, and the effects were similar in low-income districts and wealthier districts, “suggesting that NCLB did not meaningfully influence distributional equity.”48 48.Id. at 177.Show More

In 2015, Congress reauthorized the law once again and abandoned many of the sanctions used in NCLB with the Every Student Succeeds Act (“ESSA”).49 49.Every Student Succeeds Act, Pub. L. No. 114-95, § 1012, 129 Stat. 1802 (2015) (codified as amended at 20 U.S.C. § 6321(b)(1)).Show More In terms of equity, ESSA requires districts for the first time to report per pupil spending at the level of the school building, which can reveal intra-district inequities in school funding.50 50.Id. 129 Stat. 1847.Show More ESSA also updated the “supplement not supplant” requirement of Title I funding, and the proposed rule would expand federal requirements to ensure that federal funding does not replace existing state and local funding.51 51.U.S. Dep’t of Educ., Supplement not Supplant under Title I, Part A of the Elementary and Secondary Education Act of 1965, As Amended by the Every Student Succeeds Act 8 (2019), https://www2.ed.gov/policy/elsec/leg/essa/snsfinalguidance06192019.pdf [https://perma.cc/LF4X-2D98].Show More Finally, ESSA launched a pilot program to allow certain districts to develop innovative approaches to reducing school funding inequity in exchange for enhanced flexibility.52 52.20 U.S.C. § 6337 (2018), amended by Every Student Succeeds Act, 129 Stat. 1878.Show More

While Title I funding has not grown as rapidly as Congress committed to over two decades ago, certain parts of Title I funding have grown over that period. Specifically, the Education Finance Incentive Grants (“EFIG”) program, which is intended to reflect the level of effort and equity in state school financing, grew to nearly $4.5 billion by 2022.53 53.U.S. Dep’t of Educ., Department of Education’s FY 2022 Congressional Action 1 (2022), https://www2.ed.gov/about/overview/budget/budget22/22action.pdf [https://perma.cc/9S7V-Y646].Show More EFIG funding is based on the most complex formula of Title I, and the current formula has a number of weaknesses. It does not adequately take into account the different fiscal capacities of states, and its equity formula may not reward the states which do the most for the schools with the most low-income students.54 54.See Nora Gordon & Sarah Reber, Title I’s Education Finance Incentive Grant Program Is Unlikely to Increase Effort and Equity in State Policy, All4Ed (Jan. 24, 2023), https://all4ed.org/publication/title-is-education-finance-incentive-grant-program-is-unlikely-to-increase-effort-and-equity-in-state-policy/ [https://perma.cc/ALV5-5RUN].Show More Nonetheless, the growth of EFIG, at least in theory, suggests that intra-state public school equity is growing in importance in terms of the distribution of federal funding.55 55.U.S. Gov’t Accountability Off., GAO-11-258 Elementary and Secondary Education Act: Potential Effects of Changing Comparability Requirements (2011); Erika Chen, U.S. Spending on Public Schools in 2019 Highest Since 2008, U.S. Census Bureau (May 18, 2021), https://www.census.gov/library/stories/2021/05/united-states-spending-on-public-schools-in-2019-highest-since-2008.html [https://perma.cc/3YQD-25CD].Show More

With the recent COVID-19 stimulus, the U.S. Department of Education sought to ensure that any cuts in state and local funding were not at the expense of schools in low-income communities. The Maintenance of Equity provisions require that districts not cut low-income school funding more than wealthier school funding.56 56.American Rescue Plan Act of 2021, § 2004, 135 Stat. 4, 24–27.Show More The state maintenance of equity provision mandated that a state “not . . . reduce . . . [per-pupil] funding . . . for any high-need local educational agency . . . by an amount that exceeds the overall per-pupil reduction in State funds . . . across all local educational agencies.”57 57.Id. § 2004(b)(1).Show More

The local maintenance of equity provision also requires that local education agencies (“LEAs”) not “reduce per-pupil funding . . . for any high-poverty school . . . by an amount that exceeds” average per-pupil reduction in the LEA.58 58.Id. § 2004(c)(1)(A).Show More The language protected the 25% of schools with the most students in poverty.59 59.Id. § 2004(d)(4).Show More One potential weakness of this approach is that it creates a higher burden for more equitable districts and a lower burden for less equitable districts, since the baseline is prior funding rather than equity.

While federal education funding is the most progressive among the different sources of public school finance, its leveraged impact on school funding equity remains limited. In part, this outcome reflects the multiple dimensions of school finance because the level of funding is so unequal across state boundaries. It also reflects the ways in which the current federal formulas fail to adequately capture important sources of inequity, such as teacher salaries, and the ways in which the formulas may not always incentivize equity.

Growing attention to inequities within states and successful state court litigation contributed to reducing the share of intra-state funding differentials in the era after Rodriguez. As of 2011, per-pupil spending gaps within states accounted for an estimated twenty-two percent of inequalities in school funding.60 60.Gordon & West, supra note 14, at 2.Show More However, inequalities in education funding between different states accounted for an estimated seventy-eight percent of these inequities.61 61.Id. at 1–2.Show More Some of this differential reflects the cost-of-living variations across different states, but much of it can be traced back to different levels of state spending.

Significantly, this data does not capture the share of inequities within school districts, which are now subject to greater reporting under federal requirements.62 62.Tara García Mathewson, New Data: Even Within the Same District Some Wealthy Schools Get Millions More than Poor Ones, Hechinger Report 2–3 (2020), https://hec​hingerreport.org/new-data-even-within-the-same-district-some-wealthy-schools-get-millions​-more-than-poor-ones/ [https://perma.cc/2BWH-THNZ].Show More Based on recent data, there is growing evidence that disparities in funding within school districts is currently larger than such inequities in spending across districts, in part because the most experienced and best paid teachers work at schools with lower poverty rates.63 63.Id.Show More

A wide range of proposals have been offered to strengthen the impact of federal education funding on inequalities in school funding. These range from increased funding, to distributing a greater share of funding to less affluent states, to incentivizing states to improve funding equity, to changing the Title I formula to better target within-district disparities, to including automatic funding to prevent backsliding in equity during economic downturns.64 64.Allegretto et al., supra note 28, at 2–3, 7–11, 13–20, 30–32.Show More

Over the past two decades, commitments to substantially increase federal education funding and Title I have generally fallen short. Despite a significant temporary boost in funding through pandemic era stimulus legislation, the ongoing level of Title I funding remains far below the commitments of two decades ago.65 65.Nat’l Educ. Ass’n, Federal Education-Related Discretionary Programs: Final Appropriations, FY 2023 (2022), https://www.nea.org/sites/default/files/2023-01/final-fy23-appropriations-for-education-related-discretionary-programs-with-state-tables.pdf [https://perma.cc/CK8N-WHY3].Show More Therefore, while expanded federal funding could directly contribute to reducing school funding disparities, it is unlikely that federal funding will grow in the near term beyond its historic level of less than ten percent of school finance.

Given this relatively small share of overall public school funding, the next questions revolve around how these federal funds are distributed and the mechanisms by which they might influence the distribution of state and local education funding. There are important issues both around the share of federal funds that each state receives and the allocation of federal funds to schools and districts within a given state. Some scholars have called for a federal foundation program that would match state funding in ways similar to federal funding for Medicaid.66 66.Liu, supra note 15, at 2120.Show More In this system, the matching rate is higher for states with lower per capita income and gradually declines as state per capita income increases.

Other scholars point to the success of the Department of Education’s Race to the Top model in encouraging states to adopt learning standards and suggest that a similar approach could transform school finance. Under this model, states would become eligible for awards based on their commitments to restructure school finance toward greater equity.67 67.Houck & DeBray, supra note 6, at 148.Show More

Many critics of the current Title I formula argue that modest adjustments could contribute to federal funding leveraging greater equity in school finance. Some suggest including teacher salaries more directly in the comparability analysis of school funding.68 68.Marguerite Roza & Paul T. Hill, How Within-District Spending Inequities Help Some Schools to Fail, in 7 Brookings Papers on Educ. Pol’y 201, 218 (Diane Ravitch ed., 2004).Show More Such an approach would capture a significant source of disparity between low-income schools and wealthier schools, but funding alone might not be sufficient to attract the most experienced teachers. However, it would also introduce possible moral hazard, as states might have less incentive to increase their own funding for public education.

Finally, the experience of the Great Recession clearly demonstrated that economic downturns lead states to cut education funding in ways that exacerbate inequalities in school funding. As the possibility of another recession looms, this suggests an important role for the federal government in helping to limit the cuts, especially to high poverty schools. The pandemic education stimulus sought to serve this function on a one-time basis with additional funding and the maintenance of equity requirements. In other fields, such as unemployment insurance, there are automatic stabilizers that provide reserves for increased funding during economic downturns.69 69.Allegretto et al., supra note 28, at 31 (suggesting economic triggers such as the unemployment rate as a threshold to automatically expand federal education funding).Show More A similar approach to education funding could help maintain equity gains when they are at the greatest risk. Federal funding for such an endeavor could also incentivize states to adopt such an approach and incorporate an improved maintenance of equity approach.

Conclusion

Fifty years after the San Antonio Independent School District v. Rodriguez decision, tremendous inequities in school funding and educational opportunity remain the norm in the United States.70 70.Ivy Morgan & Ary Amerikaner, Funding Gaps 2018: An Analysis of School Funding Equity Across the U.S. and Within Each State, Educ. Tr. 6 (Feb. 2018), https://s3-us-east-2.amazonaws.com/edtrustmain/wp-content/uploads/2014/09/20180601/Funding-Gaps-2018-Report-UPDATED.pdf [https://perma.cc/CRZ5-LXMN] (observing that, across the United States, schools spend approximately 7%, or $1,000, less per pupil on students in the highest poverty districts as compared to the wealthiest districts).Show More Since the Supreme Court effectively closed the door to federal litigation based on the idea of a fundamental right to education, plaintiffs turned to state courts and the more explicit provisions of state constitutions for redress. Decades of state litigation have contributed to narrowing funding gaps within states and between different districts. However, these gains in equity have proven to be fragile and contingent both on continued oversight by the courts and the vagaries of the economic cycle. At the same, time there has been much less progress on the inequities in school funding across states. Recent school level data also suggests significant gaps in funding within districts across the country, which remain largely unaddressed.71 71.Mathewson, supra note 62.Show More

Federal funding and the leveraging effect of federal dollars holds a great deal of untapped potential to contribute to more equitable schools. Despite the relatively low overall share of federal funding for education, the response by states to the NCLB reveals the substantial influence of the federal share of education funding. Federal efforts to promote school finance equity have been much less significant. The lack of enforcement of the “supplement not supplant” provisions and the opaqueness of the Title I funding formula limit the impact of federal dollars on school funding equity.

In recent years the federal government has sought to leverage its funding more directly in support of greater equity in school finance. However, like the Title I formula itself, the recent Maintenance of Equity provisions do not necessarily incentivize more progressivity in school finance. Instead, one approach penalizes any deviation from equal funding while failing to consider teacher salaries, while the other approach tries to lock in the relative balance of prior baseline amounts of funding, which lowers the burden on states with greater inequities.

As was true for Edgewood at the time of the Rodriguez decision, federal funds were––and are––the most targeted toward schools with a high percentage of students living in poverty. Yet these funds remain a small share of overall funding, even for schools in the most impoverished communities. Unless that balance of funding changes meaningfully, smarter leveraging of federal dollars to foster more equitable state and local allocations is the most promising role for the federal government to promote equal educational opportunity for all students.72 72.SeeC. Kirabo Jackson & Claire Mackevicius, The Distribution of School Spending Impacts 50–51 (Nat’l Bureau of Econ. Rsch., Working Paper No. 28517, 2021).Show More

  1.  See Daphne Kenyon, Bethany Paquin & Semida Munteanu, Public Schools and the Property Tax: A Comparison of Education Funding Models in Three U.S. States, Land Lines, Apr. 2022, at 32, 34–35, https://www.lincolninst.edu/sites/default/files/pubfiles/public-schools-property-tax-lla220406.pdf [https://perma.cc/TMY4-QGZA]. ↑
  2.  See, e.g., id. at 37. ↑
  3.  See Nat’l Ctr. for Educ. Stats., NCES 2002-129, Federal Support for Education: Fiscal Years 1980 to 2001, at iii (Nov. 2001), https://nces.ed.gov/pubs2002/2002129.pdf [https://perma.cc/3CBR-D8FE]; Public School Revenue Sources, Nat’l Ctr. for Educ. Stats.: Condition of Education 1 (May 2022), https://nces.ed.gov/programs/coe/pdf/2022/cma‌_508.pdf [https://perma.cc/RN5F-4VFX]; How is K–12 Education Funded?, Peter G. Peterson Found. (Aug. 16, 2022), https://www.pgpf.org/budget-basics/how-is-k-12-education-funded [https://perma.cc/4URP-UABJ]. ↑
  4.  San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35, 40 (1973). ↑
  5.  Jeffrey S. Sutton, San Antonio Independent School District v. Rodriguez and Its Aftermath, 94 Va. L. Rev 1963, 1974 (2008) (noting that, “as of June 2008, forty-five States have faced state-constitutional challenges to their systems of funding public schools”). While the first generation of state school finance cases focused primarily on inequality in school funding, the next generation of cases focused increasingly on the adequacy of educational funding levels. Id. at 1973. ↑
  6.  Eric A. Houck & Elizabeth DeBray, The Shift From Adequacy to Equity in Federal Education Policymaking: A Proposal for How ESEA Could Reshape the State Role in Education Finance, RSF, Dec. 2015, at 148, 150–53, https://www.rsfjournal.org/content/rsfjs​s/1/3/148.full.pdf [https://perma.cc/BM5M-7M6P]; see also Dennis J. Condron, The Waning Impact of School Finance Litigation on Inequality in Per Student Revenue During the Adequacy Era, 43 J. Educ. Fin. 1, 18 (2017). ↑
  7.  See Elementary and Secondary Education Act of 1965, Pub. L. No. 89-10, 79 Stat. 27 (codified as amended in scattered sections of 20 U.S.C.). ↑
  8.  Elementary and Secondary Education Act of 1965, Pub. L. No. 89-10, § 201, 79 Stat. 27, 27 (repealed 1978). ↑
  9.  Every Student Succeeds Act, Pub. L. No. 114-95, § 1012, 192 Stat. 1802, 1875 (2015) (codified as amended at 20 U.S.C. § 6321(b)(1)). ↑
  10.  Rebecca R. Skinner, Cong. Rsch. Serv., RL 45977, The Elementary and Secondary Education Act (ESEA), as Amended by the Every Student Succeeds Act (ESSA): A Primer 3 (2022). ↑
  11.  Id.; see also Every Student Succeeds Act § 2001, 129 Stat. at 1914 (codified at 20 U.S.C. § 6601). ↑
  12.  American Rescue Plan Act of 2021, § 2004(b), (c), 135 Stat. 4, 25. ↑
  13.  Thomas S. Dee & Brian A. Jacob, The Impact of No Child Left Behind on Students, Teachers, and Schools, Brookings Papers on Econ. Activity, Fall 2010, at 149, 176–77. ↑
  14.  See, e.g., Nora Gordon & Martin R. West, Memo: Federal School Finance Policy, Brookings: Brown Ctr. Chalkboard (Dec. 8, 2016), www.brookings.edu/blog/brown-center-chalkboard/2016/12/08/memo-federal-school-finance-policy/ [https://perma.cc/L2TS-ETP5]. ↑
  15.  See, e.g., Goodwin Liu, Interstate Inequality in Educational Opportunity, 81 N.Y.U. L. Rev. 2044, 2114 (2006). ↑
  16.  San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (“Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.”). ↑
  17.  Id. at 67–68 (White, J., dissenting). ↑
  18.  See Plyler v. Doe, 457 U.S. 202, 221 (1982) (“Public education is not a ‘right’ granted to individuals by the Constitution. But neither is it merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation. . . . In sum, education has a fundamental role in maintaining the fabric of our society.” (citation omitted)). But in Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 458 (1988), the Court reaffirmed that education is not a fundamental right under the Equal Protection Clause. ↑
  19.  See Rodriguez, 411 U.S. at 12–13. ↑
  20.  Id. at 12–14. ↑
  21.  Id. at 12–13. ↑
  22.  Id. ↑
  23.  William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977) (urging lawyers turn to state supreme courts because the Burger Court was unlikely to be receptive to claims from “politically powerless groups whose members have historically been subjected to purposeful discrimination”). ↑
  24.  See James E. Ryan, Standards, Testing, and School Finance Litigation, 86 Tex. L. Rev. 1223, 1260 (2008) (“School finance litigation, in other words, does not create a self-sustaining reform. Indeed, there are no examples of states where plaintiffs have won a school finance case and legislatures have responded adequately without any further court involvement.”). ↑
  25.  Condron, supra note 6, at 18. ↑
  26.  Houck & DeBray, supra note 6, at 150–53. ↑
  27.  Danielle Farrie & David G. Sciarra, Educ. L. Ctr., $600 Billion Lost: State Disinvestment in Education Following the Great Recession 2 (2020), https://edlawcenter.org/assets/‌$600%20Billion/$600%20Billion%20Lost.pdf [https://perma.cc/H2TN-6KF3] (last visited Feb. 24, 2023). ↑
  28.  Sylvia Allegretto, Emma García & Elaine Weiss, Public Education Funding in the U.S. Needs an Overhaul: How a Larger Federal Role Would Boost Equity and Shield Children from Disinvestment During Downturns, Econ. Pol’y Inst. 13–15, 21 (July 12, 2022), https://files.epi.org/uploads/233143.pdf [https://perma.cc/JSS5-LMQW]. ↑
  29.  C. Kirabo Jackson, Cora Wigger & Heyu Xiong, Do School Spending Cuts Matter? Evidence from the Great Recession, 13 Am. Econ. J. 304, 304 (2021). ↑
  30.  Id. at 312. ↑
  31.  See William N. Evans, Robert M. Schwab & Kathryn L. Wagner, The Great Recession and Public Education, 14 Educ. Fin. and Pol’y 298, 300, 314–16 (2019); see also David S. Knight, Nail Hassairi, Christopher A. Candelaria, Min Sun & Margaret L. Plecki, Prioritizing School Finance Equity During an Economic Downturn: Recommendations for State Policy Makers, 17 Educ. Fin. & Pol’y 188, 189–91 (2022) (highlighting the disproportionate funding cuts high-poverty school districts experienced in the aftermath of the Great Recession). ↑
  32.  Jackson et al., supra note 29, at 310. ↑
  33.  Knight et al., supra note 31, at 191. ↑
  34.  Id. See also Proposed Requirement—American Rescue Plan Act Elementary and Secondary School Emergency Relief Fund, 87 Fed. Reg. 57 (proposed Jan. 3, 2022) (to be codified at 34 C.F.R. ch. 2). ↑
  35.  Elementary and Secondary Education Act of 1965, Pub. L. No. 89-10, § 201, 79 Stat. 27, 27 (repealed 1978). ↑
  36.  Id. ↑
  37.  Alyson Klein, No Child Left Behind: An Overview, Educ. Wkly. (Apr. 10, 2015), https://www.edweek.org/policy-politics/no-child-left-behind-an-overview/2015/04 [https://‌perma.cc/2AYA-T9TP]. ↑
  38.  Improving Basic Programs Operated by Local Educational Agencies (Title I, Part A): Funding Status, U.S. Dep’t of Educ. (Oct. 24, 2018), https://www2.ed.gov/programs/‌titleiparta/funding.html [https://perma.cc/SV9Q-6BSJ]. ↑
  39.  Michael Hansen, Jon Valant & Nicholas Zerbino, Do School Districts Allocate More Resources to Economically Disadvantaged Students?, Brookings (2022), https://www.brookin​gs.edu/multi-chapter-report/do-school-districts-allocate-more-resources-to-economically-dis​advantaged-students [https://perma.cc/JPV6-SFSU]. ↑
  40.  EXPLAINED: What Is Title I and How Is It Used to Fund Our Schools?, Ed Post (Aug. 12, 2021), https://www.edpost.com/explainer/explained-what-is-title-i-and-how-is-it-used-to-fund-our-schools [https://perma.cc/QL9X-5C2B] (noting that approximately 60% of public schools in the United States receive some Title I funding). ↑
  41.  Stephanie Stullich, U.S. Dep’t of Educ., The Potential Impact of Revising the Title I Comparability Requirement to Focus on School-Level Expenditures 2 (Nov. 2011), https://www2.ed.gov/rschstat/eval/title-i/comparability-requirement/comparability-policy-brief.pdf [https://perma.cc/6NXM-D2BZ]. ↑
  42.  Executive Summary for No Child Left Behind Act, U.S. Dep’t of Educ. (Feb. 10, 2004), www2.ed.gov/nclb/overview/intro/execsumm.html [https://perma.cc/NA5Y-4CJ6]. ↑
  43.  Id. ↑
  44.  Id. ↑
  45.  Dee & Jacob, supra note 13, at 154. ↑
  46.  Id. at 176–77. ↑
  47.  Id. at 176. ↑
  48.  Id. at 177. ↑
  49.  Every Student Succeeds Act, Pub. L. No. 114-95, § 1012, 129 Stat. 1802 (2015) (codified as amended at 20 U.S.C. § 6321(b)(1)). ↑
  50.  Id. 129 Stat. 1847. ↑
  51.  U.S. Dep’t of Educ., Supplement not Supplant under Title I, Part A of the Elementary and Secondary Education Act of 1965, As Amended by the Every Student Succeeds Act 8 (2019), https://www2.ed.gov/policy/elsec/leg/essa/snsfinalguidance06192019.pdf [https://perma.cc/LF4X-2D98]. ↑
  52.  20 U.S.C. § 6337 (2018), amended by Every Student Succeeds Act, 129 Stat. 1878. ↑
  53.  U.S. Dep’t of Educ., Department of Education’s FY 2022 Congressional Action 1 (2022), https://www2.ed.gov/about/overview/budget/budget22/22action.pdf [https://perma.cc/9S7V-Y646]. ↑
  54.  See Nora Gordon & Sarah Reber, Title I’s Education Finance Incentive Grant Program Is Unlikely to Increase Effort and Equity in State Policy, All4Ed (Jan. 24, 2023), https://all4ed.org/publication/title-is-education-finance-incentive-grant-program-is-unlikely-to-increase-effort-and-equity-in-state-policy/ [https://perma.cc/ALV5-5RUN]. ↑
  55.  U.S. Gov’t Accountability Off., GAO-11-258 Elementary and Secondary Education Act: Potential Effects of Changing Comparability Requirements (2011); Erika Chen, U.S. Spending on Public Schools in 2019 Highest Since 2008, U.S. Census Bureau (May 18, 2021), https://www.census.gov/library/stories/2021/05/united-states-spending-on-public-schools-in-2019-highest-since-2008.html [https://perma.cc/3YQD-25CD]. ↑
  56.  American Rescue Plan Act of 2021, § 2004, 135 Stat. 4, 24–27. ↑
  57.  Id. § 2004(b)(1). ↑
  58.  Id. § 2004(c)(1)(A). ↑
  59.  Id. § 2004(d)(4). ↑
  60.  Gordon & West, supra note 14, at 2. ↑
  61.  Id. at 1–2. ↑
  62.  Tara García Mathewson, New Data: Even Within the Same District Some Wealthy Schools Get Millions More than Poor Ones, Hechinger Report 2–3 (2020), https://hec​hingerreport.org/new-data-even-within-the-same-district-some-wealthy-schools-get-millions​-more-than-poor-ones/ [https://perma.cc/2BWH-THNZ]. ↑
  63.  Id. ↑
  64.  Allegretto et al., supra note 28, at 2–3, 7–11, 13–20, 30–32. ↑
  65.  Nat’l Educ. Ass’n, Federal Education-Related Discretionary Programs: Final Appropriations, FY 2023 (2022), https://www.nea.org/sites/default/files/2023-01/final-fy23-appropriations-for-education-related-discretionary-programs-with-state-tables.pdf [https://perma.cc/CK8N-WHY3]. ↑
  66.  Liu, supra note 15, at 2120. ↑
  67.  Houck & DeBray, supra note 6, at 148. ↑
  68.  Marguerite Roza & Paul T. Hill, How Within-District Spending Inequities Help Some Schools to Fail, in 7 Brookings Papers on Educ. Pol’y 201, 218 (Diane Ravitch ed., 2004). ↑
  69.  Allegretto et al., supra note 28, at 31 (suggesting economic triggers such as the unemployment rate as a threshold to automatically expand federal education funding). ↑
  70.  Ivy Morgan & Ary Amerikaner, Funding Gaps 2018: An Analysis of School Funding Equity Across the U.S. and Within Each State, Educ. Tr. 6 (Feb. 2018), https://s3-us-east-2.amazonaws.com/edtrustmain/wp-content/uploads/2014/09/20180601/Funding-Gaps-2018-Report-UPDATED.pdf [https://perma.cc/CRZ5-LXMN] (observing that, across the United States, schools spend approximately 7%, or $1,000, less per pupil on students in the highest poverty districts as compared to the wealthiest districts). ↑
  71.  Mathewson, supra note 62. ↑

  72.  See C. Kirabo Jackson & Claire Mackevicius, The Distribution of School Spending Impacts 50–51 (Nat’l Bureau of Econ. Rsch., Working Paper No. 28517, 2021). ↑

The Road to Rodriguez: Presidential Politics, Judicial Appointments, and the Contingent Nature of Constitutional Law

If nothing else, the recent decision in Dobbs v. Jackson Women’s Health Organization1 1.142 S. Ct. 2228 (2022).Show More should remind us that the evolution of constitutional doctrine will often be shaped by forces that have little or no connection to the merits of the abstract legal arguments that are made in controversial cases. After the death of Justice Scalia in February 2016, the supporters of abortion rights appeared to have good reason to hope that the constitutional rules that had been established in Roe v. Wade2 2.410 U.S. 113 (1973), overruled by Dobbs, 142 S. Ct. 2228.Show More and Planned Parenthood of Southeastern Pennsylvania v. Casey3 3.505 U.S. 833 (1992), overruled by Dobbs, 142 S. Ct. 2228.Show More would remain intact for the foreseeable future. However, by the time that Dobbs was argued in August 2021, the combination of the refusal of the Senate to consider the nomination of Merrick Garland, the surprise victory of Donald Trump in the 2016 presidential election, and the replacement of Justice Ginsburg by Justice Barrett created a Supreme Court majority that was hostile to the pro-choice position and committed to the idea that Roe and Casey should be overruled.

This Essay will argue that the Court’s treatment of the issues raised by San Antonio Independent School District v. Rodriguez4 4.411 U.S. 1 (1973).Show More reflected the influence of similar forces. The Essay will begin by discussing the state of constitutional doctrine and the ideological orientation of the Supreme Court in 1968, arguing that, if the orientation of the Court had remained unchanged in 1973, Rodriguez would have been decided differently. The Essay will then describe the sequence of events that led to the resignation of two progressive Justices and provided Republican Richard M. Nixon with the opportunity to choose two conservative replacements during the early years of his administration. After demonstrating that this change in personnel played a crucial role in denying progressives a majority in Rodriguez, the Essay will argue that the decision provides a particularly striking illustration of the nature of considerations that determine the course of the evolution of constitutional doctrine more generally.

I. The World as it Appeared in 1968

In mid-1968, a person with progressive views who was familiar only with the decisions of the Supreme Court would have had every reason to be optimistic about the likely course of the future development of constitutional doctrine. In the years since Justice Goldberg joined the Court in 1962, a majority of the Justices had embraced the progressive perspective in a wide variety of different contexts.5 5.The decisions of the Court during this period are discussed in detail in Lucas A. Powe, Jr., The Warren Court and American Politics 239–462 (2000). Cf. Justin Driver, The Constitutional Conservatism of the Warren Court, 100 Calif. L. Rev. 1101, 1114 (2012) (arguing that the progressive reputation of the Warren Court is overstated).Show More Among other things, the Court had begun to take actions which suggested the Justices were prepared to intervene actively to address the problem of inequality in public education.

On the issue of school desegregation, the 1968 decision in Green v. County School Board of New Kent County6 6.391 U.S. 430, 441–42 (1968).Show More had demonstrated that the Court was prepared to move aggressively to improve the racial balance of public schools in districts where such schools had previously been segregated by law. In Green, the Court was called upon to address the situation in New Kent County, a small rural county in Virginia.7 7.Id. at 431–32.Show More In the decade following the two decisions that had been issued in Brown v. Board of Education,8 8.347 U.S. 483 (1954); 349 U.S. 294 (1955).Show More the county continued to operate one school that provided elementary and secondary education to all white students in the district and a different school that provided analogous services to all African-American students.9 9.Green, 391 U.S. at 431–32.Show More However, in 1965, in response to a newly-filed lawsuit, and the threat of losing federal funding, the school district adopted a freedom of choice plan which essentially allowed students in the district to choose to attend either of the two schools.10 10.Id. at 432–34.Show More By 1967, fifteen percent of the county’s African-American students had chosen to attend the formerly all-white school, but no white students had chosen to attend the formerly all-African-American school.11 11.Id. at 441.Show More Despite these results, the federal Department of Health, Education and Welfare, which was responsible for administering the relevant portions of the Civil Rights Act of 1964, approved the plan.12 12.Id. at 433–34 n.2.Show More

Nonetheless, in Green, the Supreme Court unanimously held that the freedom of choice plan did not provide an adequate remedy for past segregation.13 13.Id. at 441–42.Show More Justice Brennan’s opinion for the Court began with the premise that, under Brown, “[s]chool boards such as [that of New Kent County were] clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.”14 14.Id. at 437–38.Show More Justice Brennan also noted that the New Kent County School Board had refused to take any steps toward disestablishment of its dual school system in the years immediately following the decision in Brown.15 15.Id. at 438.Show More Observing that “[t]his deliberate perpetuation of the unconstitutional dual system can only have compounded the harm of such a system,” Justice Brennan declared that “[t]he time for mere ‘deliberate speed’ has run out”16 16.Id. (quoting Griffin v. Cnty. Sch. Bd., 377 U.S. 218, 234 (1964)).Show More and that “[t]he burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.”17 17.Id. at439.Show More

Justice Brennan concluded that, measured against this standard, the New Kent County Board of Education had failed to meet its constitutional obligations. He asserted that

[t]he New Kent School Board’s “freedom-of-choice” plan cannot be accepted as a sufficient step to “effectuate a transition” to a unitary system . . . [T]he school system remains a dual system. Rather than further the dismantling of the dual system, the plan has operated simply to burden children and their parents with a responsibility which [Brown v. Board of Education] placed squarely on the School Board. The Board must be required to formulate a new plan and, in light of other courses which appear open to the Board, such as zoning, fashion steps which promise realistically to convert promptly to a system without a “white” school and a “Negro” school, but just schools.18 18.Id. at 441–42.Show More

Although by its terms Green dealt only with the question of racial segregation, the holdings in other cases suggested that the Court would turn its attention to class-related issues of educational inequality as well. During the late Warren era, the Court handed down a number of decisions which seemed to suggest that wealth-based classifications should be considered suspect for purposes of equal protection analysis. The first indications that the Court might be moving toward the view that the Equal Protection Clause should be interpreted to require enhanced scrutiny of classifications based on wealth came in a series of cases dealing with criminal procedure issues. In this context, the majority opinion in the 1963 case of Douglas v. California19 19.372 U.S. 353 (1963).Show More provides one particularly striking example of language suggesting that the interests of the poor were entitled to particularly strong solicitude in equal protection analysis. There, in concluding that the state of California was constitutionally required to provide indigent criminal defendants with appointed counsel in appeals as of right, Justice Douglas declared that

[t]here is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.20 20.Id. at 357–58.Show More

In 1966, the Court focused on discrimination between the rich and the poor in a very different setting. In concluding that a state law requiring citizens to pay a poll tax to be eligible to vote violated the Equal Protection Clause, the majority opinion in Harper v. Virginia Board of Elections asserted that “[w]ealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process” and that “[l]ines drawn on the basis of wealth or property, like those of race . . . are traditionally disfavored.”21 21.383 U.S. 663, 668 (1963) (citations omitted).Show More Three years later, in dictum, Chief Justice Warren spoke for a unanimous Court in declaring that discrimination based on wealth was a factor “which . . . independently render[s] a classification highly suspect and thereby demand[s] a more exacting judicial scrutiny.”22 22.McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807 (1969).Show More

Decisions such as these convinced some observers that the Court would soon require the reduction or elimination of economic disparities which were byproducts of the system by which public schools were financed in many states. For example, in 1968, despite observing that “I think this would be one of the problems that the Court should leave to others,”23 23.Philip B. Kurland, Equal Educational Opportunity: The Limits of Constitutional Jurisprudence Undefined, 35 Univ. Chi. L. Rev. 583, 592 (1968).Show More Professor Philip B. Kurland predicted “with some assurance, that sooner or later the Supreme Court will affirm the proposition that a State is obligated by the equal protection clause to afford equal educational opportunity to all of its public school students [by requiring the equalization of per pupil spending].”24 24.Id. at 583.Show More Reasoning that school finance litigation raised issues at the intersection of concerns the Court had expressed in its decisions dealing with school desegregation, reapportionment, and discrimination against the poor, Kurland asserted that “[t]he logic of the case for equal educational opportunity is inexorable.”25 25.Id. at 588.Show More In making this assessment, however, Kurland could not predict the changes in the decision-making dynamic that would profoundly affect the treatment of the issue of school finance when the Court focused its attention on the question in 1973.

II. The Transformation of the Supreme Court, 1968–1972

Kurland’s assessment of the likely outcome of school finance litigation was at least implicitly based on the assumption that the ideological and jurisprudential balance of power on the Court would not change before the Justices were called upon to resolve the relevant constitutional issues. If this assumption had been correct, his prediction would very likely have proven to be accurate. In fact, however, by the time a challenge to the constitutionality of a school financing system was actually resolved by the Court, the situation was dramatically different. In less than five years, a series of events and miscalculations led to a number of changes in personnel that deprived progressives of their majority and left control of the Court’s decision-making process in the hands of a group of Justices who did not fully embrace the goals of progressive politics and jurisprudence.

The contest for the presidency in 1968 played a major role in these developments. The candidacy of Republican Richard M. Nixon was particularly significant in this regard. Nixon was a well-known figure in Republican politics, having served two terms as Vice President under Republican Dwight D. Eisenhower before losing an extremely close contest to Democrat John F. Kennedy in the 1960 presidential election. Two years later, Nixon was the Republican nominee in the race for governor of California but was once again defeated. After this setback, many believed Nixon’s political career was over.26 26.See Gladwin Hill, Nixon Denounces Press as Biased, N.Y. Times, Nov. 8, 1962, at 1.Show More However, he returned with a vengeance in 1968, and by June of that year was widely viewed as the front-runner for the Republican presidential nomination.27 27.See Robert B. Semple, Jr., The Republican Race; Nixon: The Front-Runner Looks Over His Shoulder, N.Y. Times, May 5, 1968, at E2.Show More

Chief Justice Warren was appalled by the possibility that Nixon might win the presidency. Chief Justice Warren despised Nixon personally and, at seventy-seven years of age, believed that he might die before Nixon finished even one term in office.28 28.See Michael Bobelian, Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon, and the Forging of the Modern Supreme Court 57, 67 (2019).Show More Moreover, during the presidential campaign, focusing particularly on decisions that had expanded the rights of criminal defendants,29 29.See, e.g., Nixon Links Court to Rise in Crime, N.Y. Times, May 31, 1968, at 18.Show More Nixon repeatedly attacked what he described as the “judicial activism” of the Warren Court.30 30.See Kevin J. McMahon, Nixon’s Court: His Challenge to Judicial Liberalism and its Political Consequences 57 (2011).Show More Thus, Chief Justice Warren had every reason to believe that, if elected, the presumptive Republican nominee would choose Supreme Court justices who were hostile to the progressive initiatives that Chief Justice Warren generally supported.

Faced with this prospect, Chief Justice Warren made a fateful decision. On June 13, 1968, he met with President Lyndon B. Johnson to discuss his plans for the future. At the meeting, Chief Justice Warren told Johnson that he wanted to give the incumbent president the opportunity to “appoint [Warren’s] successor, someone who felt as Warren did . . . .”31 31.See Laura Kalman, The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court 124 (2017).Show More The Chief Justice informed Johnson that he had decided to leave the Court.32 32.Id.Show More In making this decision, Chief Justice Warren became the first Supreme Court Justice in the history of the United States to resign for the express purpose of ensuring that a sitting President would have the opportunity to fill the seat that would be vacated by the resignation. It was a choice that Chief Justice Warren would soon come to regret.

Rather than establishing the foundation for continued progressive dominance of the Supreme Court, Chief Justice Warren’s resignation would be the first in a sequence of events that would lead to conservative victories in a variety of cases in which progressives might otherwise have prevailed. Thus, a number of years later, after some of the ramifications of his decision to resign had become clear, Chief Justice Warren observed ruefully that “[i]f I had ever known what was going to happen to this country and this Court, I never would have resigned. They would have had to carry me out of here on a plank.”33 33.Dennis J. Hutchinson, Hail to the Chief: Earl Warren and the Supreme Court, 81 Mich. L. Rev. 922, 928 n.23 (1983).Show More

From the progressive perspective, the next misstep came when President Johnson nominated Associate Justice Fortas to be Chief Justice Warren’s successor and, after considerable thought, chose Judge W. Homer Thornberry of the United States Court of Appeals for the Fifth Circuit to fill the vacancy that would be created if Justice Fortas was confirmed. From the beginning, these appointments proved to be extremely controversial.34 34.The controversy over the Justice Fortas appointment is described in detail in Bobelian, supra note 28, at 55; Laura Kalman, Abe Fortas: A Biography 327–58 (1990); Bruce Allen Murphy, Fortas: The Rise and Ruin of a Supreme Court Justice 269–526 (1988).Show More Even before Chief Justice Warren’s resignation was officially announced, Republican Senator Robert Griffin of Michigan took the Senate floor to complain that “[i]f a ‘lame duck’ President should seek at this stage to appoint the leadership of the Supreme Court for many years in the future, I believe he would be breaking faith with our system, and that such a move would be an affront to the American people.”35 35.114 Cong. Rec. 18171 (1968).Show More Despite these concerns, Griffin later indicated that he would have supported the nomination of former Associate Justice Goldberg if Johnson had chosen Justice Goldberg to succeed Chief Justice Warren.36 36.See Kalman, supra note 31, at 135.Show More

However, from Griffin’s perspective, the choice of the combination of Justice Fortas and Thornberry was particularly objectionable. Both Justice Fortas and Thornberry were close personal friends of President Johnson, and Justice Fortas had continued to advise the President on a variety of matters even after taking his seat on the Court. Against this background, characterizing the nominations as “cronyism at its worst,” Griffin and seventeen other Republican senators with a variety of different political perspectives announced that they would vote against Justice Fortas and Thornberry.37 37.Marjorie Hunter, “Cronyism” Scored on Court Choices, N.Y. Times, June 28, 1968, at 1.Show More In addition, Griffin declared that he would mount a filibuster to prevent the nominees from being confirmed.38 38.Id.Show More

In sharp contrast to Griffin and his allies, Republican Senator Strom Thurmond of South Carolina and a group of Southern Democratic senators objected to the nominations for overtly ideological reasons. The opposition of the members of this group was based primarily on their displeasure with the progressive criminal procedure and civil rights decisions of the Warren Court, which Justice Fortas had generally supported.39 39.See, e.g., Kalman, supra note 31, at 151–54.Show More In addition, during the hearings on the Justice Fortas nomination, opponents also focused their attention on a series of First Amendment decisions that limited the ability of the government to regulate the distribution of sexually-explicit books and movies.40 40.Id. at 155–58.Show More The nomination was dealt another blow when, after Justice Fortas had completed his testimony before the Senate Judiciary Committee, opponents discovered that he had received a large fee to lead a seminar at American University under circumstances that some deemed inappropriate.41 41.Id. at 166–69.Show More

Not surprisingly, as the controversy over the Justice Fortas nomination raged on, the presidential candidates were also drawn into the fray. Although Nixon secretly encouraged the opposition to the nomination, in public he refused to take any position on the ultimate question of whether Justice Fortas should be confirmed while at the same time announcing that on principle, he opposed the use of the filibuster to prevent a vote on the substantive merits of the nomination.42 42.Robert C. Albright, Fortas Rejects Senate Bid to Testify Again, Wash. Post, Sept. 1, 1968, at A1.Show More Democratic nominee Hubert H. Humphrey, on the other hand, repeatedly pressed Nixon to announce his views on the merits of the nomination,43 43.Max Frankel, Humphrey Terms Nixon ‘A Wiggler’ on Crucial Issues, N.Y. Times, Sept. 12, 1968, at 36.Show More and accused him of “making ‘a deal with Strom Thurmond’” to defeat Justice Fortas.44 44.Albright, supra note 42.Show More

Ultimately, the weight of the attacks on the Justice Fortas nomination proved too great for his supporters to overcome. The opponents of the nomination did indeed mount a filibuster, and while a small majority of senators voted in favor of the motion to end debate on October 1, 1968, the margin was well short of the two thirds majority that would have been necessary to force a vote under the rules then in effect.45 45.90 Cong. Rec. 28933 (1968).Show More Faced with this reality, Justice Fortas withdrew his name from consideration the following day.46 46.See Fred P. Graham, Fortas Abandons Nomination Fight; Name Withdrawn, N.Y. Times, Oct. 3, 1968, at 1.Show More Justice Fortas thus became the first Supreme Court nominee to be rejected in almost forty years, and the first in American history to be denied confirmation by a filibuster. Fearing another defeat, Johnson decided not to nominate another person to succeed Chief Justice Warren.

With the Chief Justiceship now clearly at stake, the potential significance of the upcoming presidential election for the future of constitutional jurisprudence became even clearer. As one commentator observed, the winner of the election would have the opportunity to make “three and perhaps four appointments to the Supreme Court [during his first term in office]” and “remake the [federal] [j]udiciary.”47 47.Marquis Childs, Eastland’s Control Over the Judiciary, Wash. Post, Oct. 18, 1968, at A24.Show More Against this backdrop, the head of the Southern Christian Leadership Conference asserted that Nixon was likely to appoint justices who would be hostile to the civil rights movement,48 48.Dennis M. Higgins, Dr. Abernathy Urges Phila. Clergy to Aid Humphrey Campaign, Phila. Inquirer, Oct. 30, 1968, at 3.Show More and Humphrey himself suggested that, if Nixon were elected, the Court might well become “a bastion of reaction.”49 49.Robert C. Jensen, Humphrey Brands His Rival “Irresponsible” on Weapons, Wash. Post, Oct. 28, 1968, at A1.Show More

Initially, Nixon was heavily favored to prevail in the presidential election over both Humphrey and third-party candidate George Wallace. Polls taken soon after the Democratic convention showed Humphrey trailing Nixon by a double-digit margin among likely voters.50 50.George Gallup, Nixon Leads HHH 43 to 31 Per Cent; Wallace Given 19,Wash. Post, Sept. 15, 1968, at A2.Show More But as the election approached, Humphrey began to close the gap. Thus, a poll published less than one week before the election found the two leading candidates to be in a virtual dead heat.51 51.George Gallup & Louis Harris, Polls Say Election Is Tossup,Wash. Post, Nov. 4, 1968, at A1.Show More

Ultimately, however, Nixon emerged victorious, receiving slightly more than forty-three percent of the popular vote, while Humphrey received slightly less than forty-three percent of those votes. More importantly, the returns entitled Nixon to receive 301 votes in the electoral college, leaving Humphrey with only 191 and Wallace with 46. A shift of less than three hundred thousand votes out of the more than seventy-three million that were cast would have been enough to provide Humphrey with a majority of the electoral votes.52 52.Humphrey would have received a majority of the electoral votes if he had carried the states of California, Illinois, and Missouri. If 112,000 of those who voted for Nixon in California had instead chosen Humphrey, Humphrey would have received an additional forty electoral votes, while in Illinois Humphrey would have received an additional twenty votes if 68,000 Nixon voters had switched their allegiance. In Missouri Humphrey would have emerged victorious if fewer than 11,000 members of the electorate had voted for him rather than Nixon. Election of 1968, Am. Presidency Project, https://www.presidency.ucsb.edu/‌statistics/elections/1968 [https://perma.cc/7PJS-ALPS] (last visited Jan. 15, 2023).Show More But the narrowness of Nixon’s margin of victory made little difference to the impact of his triumph on the evolution of constitutional jurisprudence.

If Humphrey, rather than Nixon, had been victorious in 1968, the Supreme Court would have very likely taken a very different approach to the analysis of the constitutional issues related to school finance and a variety of other questions. Even if Justice Fortas had remained on the Court, during Humphrey’s first term, the recently-elected president would have had the opportunity not only to nominate a successor to Chief Justice Warren, but also to choose replacements for Justices Black and Harlan, neither of whom was a consistent ally of the progressives on the Court in the late 1960s. Moreover, Humphrey was a committed progressive who would no doubt have made every effort to select justices who shared those values but were less vulnerable than Justice Fortas himself. Thus, progressives would almost certainly have maintained complete control over the Court for at least a generation. By contrast, Nixon’s victory paved the way for the creation of a Court whose membership was much more ideologically diverse.

Nonetheless, even in the wake of Nixon’s victory, in late 1968 it appeared that progressives might continue to hold the upper hand on the Court for the foreseeable future. Despite the refusal of the Senate to confirm Justice Fortas’s nomination to be Chief Justice, Justice Fortas was still a member of the Court and formed part of a progressive group of jurists that also included Justices Douglas, Brennan, and Thurgood Marshall. If this bloc had remained intact, even after the departure of Chief Justice Warren, progressives would generally have been able to count on four reliable votes and would have been able to prevail in any case in which they were supported by either Justices Stewart or White, both of whom had shown a willingness to embrace progressive positions in some circumstances.53 53.See, e.g., Jacobellis v. Ohio, 378 U.S. 184, 196 (1964) (White, J., concurring in the judgment) (finding that the First Amendment limits government authority to regulate sexually explicit material); id. at 197 (Stewart, J., concurring) (same).Show More

However, soon after Nixon took office, Justice Fortas was once again at the center of a dispute that would permanently alter the balance of power on the Court.54 54.The sequence of events that culminated in Justice Fortas’s resignation is summarized in Don Oberdorfer, The Gathering of the Storm That Burst Upon Abe Fortas, Wash. Post, May 16, 1969, at A1. The events are discussed in greater detail and analyzed in Kalman, supranote 34, at 359–76; Kalman, supra note 31, at 180–208; Murphy, supra note 34, at 544–77.Show More On May 4, 1969, with the secret assistance of the Nixon White House, Life magazine published a story that documented the relationship between Justice Fortas and Louis Wolfson, a man who was described as “a well-known corporate stock manipulator” and was later sent to prison for illegal stock manipulation and conspiracy.55 55.William Lambert, The Justice . . . and the Stock Manipulator, Life Magazine, May 9, 1969, 32, 33. The nature of Justice Fortas’s relationship with Wolfson is discussed in detail in Kalman, supranote 34, at 322–25, 359–60.Show More The story focused on the fact that, in January 1966—three months after Justice Fortas had joined the Court—a private, nonprofit organization controlled by Wolfson had paid Justice Fortas a $20,000 consulting fee while Wolfson was under investigation by the Securities and Exchange Commission.56 56.Lambert, supra note 55, at 35–36.Show More Although the story also noted that Justice Fortas had returned the money57 57.Id. at 35.Show More and had recused himself from the consideration of the appeal from Wolfson’s criminal conviction,58 58.Id.at 33.Show More this revelation created a political firestorm.

Moreover, the article that appeared in Life magazine had not revealed the full extent of the financial dealings between Justice Fortas and the Wolfson Foundation. In addition to the initial payment of $20,000, the nonprofit also agreed to pay Justice Fortas and his wife the same amount every year as compensation for helping the foundation plan its public service activities. This agreement was also cancelled. Nonetheless, after being informed by officials of the Nixon administration of the nature of Justice Fortas’s relationship with Wolfson, Chief Justice Warren urged Justice Fortas to resign to protect the public image of the Court. After some consideration, Justice Fortas reluctantly agreed, and on May 15, 1969, President Nixon received his letter of resignation, thereby making Justice Fortas the first sitting justice in history to resign under an ethical cloud.59 59.Justice’s Resignation First Under Impeachment Threat, CQ Almanac (1969), https://webcache.googleusercontent.com/search?q=cache:JW05KQ9srnoJ:https://library.cqpress.com/cqalmanac/document.php%3Fid%3Dcqal69-1247815&cd=1&hl=en&ct=clnk&gl‌=us [https://perma.cc/87P2-6MHQ] (last visited Apr. 6, 2023).Show More

The combination of the resignation of Chief Justice Warren, the rejection of the Justice Fortas nomination, the victory of Richard Nixon, and the subsequent resignation of Justice Fortas himself led to a dramatic change in the balance of power on the Court. On May 23, 1969, Nixon chose Judge Warren E. Burger to succeed Chief Justice Warren, and the nomination was quickly confirmed by the Senate. In addition, although the Senate refused to confirm either Clement F. Haynsworth or Harold G. Carswell, the first two people whom Nixon nominated to replace Justice Fortas, Nixon’s third choice—Harry A. Blackmun—was confirmed on May 12, 1970.60 60.The sequence of events that culminated in Justice Blackmun’s ascension to the Court are described in detail in Kalman, supra note 31, at 245–48.Show More

The replacement of Chief Justice Warren and Justice Fortas by Justices Burger and Blackmun left progressives with only three reliable votes in the cases which came before the Supreme Court in the early 1970s. The subsequent retirements of Justices Black and Harlan and confirmations of Lewis F. Powell, Jr. and William H. Rehnquist did nothing to change this reality, but instead shifted the ideological balance of power on the Court even further to the right. Within three years after the confirmation of Justices Powell and Rehnquist, the impact of four Nixon appointees on the Court’s approach to issues of educational equality would emerge clearly during the consideration of San Antonio Independent School District v. Rodriguez.

III. The Decision in Rodriguez

San Antonio Independent School District v. Rodriguez arose from a challenge to the manner in which the state of Texas financed its public schools. While the Texas system was complicated,61 61.The Texas system is described in detail in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 6–11 (1973).Show More one point was clear—the amount of money available to each school district was determined in large measure by the property taxes that were raised by that district, leading to a substantial disparity of resources between property-poor and property-rich districts. The way in which the system operated was illustrated by a comparison between two different school districts in the metropolitan area of San Antonio, Texas.

The Edgewood Independent School District, whose population was composed primarily of minority students, was located in the core city of San Antonio. The median family income in the district was $4,681 per year and, because little commercial and industrial property was located in the district, the assessed property value per pupil was $5,690. As a result, with a tax rate of $1.05 per $100 of value, the total amount of money available to the Edgewood district was $356 per pupil. By contrast, families of students in the predominantly white Alamo Heights Independent School District had a median income of $8,001 per year, and the average assessed value of the real property located in the district was $49,000 per pupil. Thus, with a property tax rate of $0.85 per $100 of assessed value, the Alamo Heights district could spend $594 per pupil.62 62.Id. at 11–13.Show More

Those challenging the constitutionality of the Texas system argued that the heavy emphasis on local property taxes violated the Equal Protection Clause. Relying on language from Brown v. Board of Education, where the Court described education as “perhaps the most important function of state and local governments” and “the very foundation of good citizenship,” the plaintiffs based their argument in part on the theory that access to public education should be considered a fundamental right for purposes of constitutional analysis.63 63.See id. at 29–30 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)).Show More In addition, they sought to analogize Rodriguez to the cases in which the Court had found that discrimination on the basis of wealth violated the Equal Protection Clause.64 64.See id. at 18.Show More

Justice Stewart joined the four Nixon appointees in rejecting these arguments and concluding that the funding system adopted by the state of Texas was constitutional. Speaking for the Court, after describing the elements of the Texas system, Justice Powell addressed the contention that the application of strict scrutiny was appropriate because the system discriminated against some students on the basis of wealth. In United States v. Kras, which was decided after Rodriguez was argued but before the case was decided, a five-justice majority had rejected the contention that laws which discriminated against the poor were generally subject to strict scrutiny.65 65.409 U.S. 434, 450–51 (1973).Show More Nonetheless, in Rodriguez itself, Justice Powell took pains to distinguish the case from other decisions in which the Court had relied on wealth discrimination to raise the level of scrutiny.

Justice Powell noted that the Texas system did not single out poor people as a class for less favorable treatment, but instead discriminated against what Justice Powell described as “a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts,” and that this class had none of the traditional “indicia of suspectness.”66 66.Rodriguez, 411 U.S. at 28.Show More Drawing on the framework developed in the famous United States v. Carolene Products footnote,67 67.304 U.S. 144, 152–53 n.4 (1938).Show More he observed that “the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”68 68.Rodriguez, 411 U.S. at 28.Show More

The majority opinion then turned to the contention that education should be considered a fundamental right for constitutional purposes. Referencing earlier decisions in which the Court declined to give special protection to the right to receive welfare benefits and have access to adequate housing, Justice Powell emphasized the distinction between the social importance of a right and the question of whether that right was “explicitly or implicitly guaranteed by the Constitution.”69 69.Id. at 33–34.Show More He found no such guarantee with respect to the right to a public education. In addition, Justice Powell rejected the contention that the right to an education should be deemed fundamental because education was necessary to both the effective use of the right to vote and the exercise of the First Amendment freedom of speech, observing that an analogous claim might be made with respect to a right to food and shelter.70 70.Id. at 36–37.Show More

Justice Powell also argued that the specific nature of the issues raised by Rodriguez made the use of strict scrutiny particularly inappropriate. In addition to observing that the Court had consistently emphasized the need to defer to legislative judgments on issues of fiscal policy, he noted the complexity of the judgments involved in making decisions related to the financing of public education and implicitly invoked Justice Cardozo’s principle of “experimental federalism,”71 71.See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).Show More asserting that “the judiciary is well advised to refrain from imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions.”72 72.Rodriguez, 411 U.S. at 43.Show More Thus, while leaving open the possibility that the Court might take a different view of a case in which public education had been completely denied to some class of children,73 73.See id. at 37.Show More Justice Powell concluded that the rational basis test provided the appropriate standard of review in Rodriguez.74 74.Id. at 44.Show More Applying this test, he had no trouble finding that the Texas system was rationally related to the state interest in assuring a basic education for each child in the state while at the same time providing for “a large measure of participation in and control of each district’s schools at the local level.”75 75.Id. at 49.Show More

By contrast, four of the five holdovers from the Warren era would have held that the Texas plan was unconstitutional. Justices Douglas and Brennan joined an opinion by Justice White which argued that the distinctions drawn by the Texas system lacked a rational basis.76 76.Id. at 63–70 (White, J., dissenting).Show More Justice White conceded that a financing system would be constitutional if it provided a meaningful opportunity for parents to improve their children’s education by increasing per pupil expenditures. However, he argued that no such option was realistically available in property-poor districts such as Edgewood.77 77.Id.at 64.Show More Justice Brennan added a separate opinion contending that education should be considered a fundamental right, asserting that “there can be no doubt that education is inextricably linked to the right to participate in the electoral process and to the rights of free speech and association . . . .”78 78.Id. at 63 (Brennan, J., dissenting).Show More

Justice Douglas also joined an opinion by Justice Marshall that differed markedly in tone from that of the other two dissents.79 79.Id. at 70–133 (Marshall, J., dissenting).Show More Justice Marshall emphasized what he characterized as the fundamentality of education for constitutional purposes. He also criticized the majority for embracing the dominant two-tiered approach to equal protection analysis more generally, advocating instead for a sliding scale approach under which the Court would be called upon to make individualized judgments assessing the significance of the particular right at stake and the importance of the state interest served by the challenged classification.80 80.Id. at 98–99 (Marshall, J., dissenting).Show More But in addition, Justice Marshall complained bitterly that Rodriguez was “a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens.”81 81.Id. at 71 (Marshall, J., dissenting).Show More Justice Marshall also complained that, because of the majority’s unwillingness to strike down the Texas school financing scheme, “[C]ountless children [will] unjustifiably receive inferior educations that ‘may affect their hearts and minds in a way unlikely ever to be undone.’”82 82.Id. at 71–72 (Marshall, J., dissenting) (citation omitted).Show More

Progressive commentators have at times described the decision in Rodriguez in near-apocalyptic terms. For example, Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson have analogized Rodriguez to the 1896 decision in Plessy v. Ferguson,83 83.163 U.S. 537 (1896). See Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Inequitable Schools Demand a Federal Remedy, Education Next, https://www.education‌next.org/inequitable-schools-demand-federal-remedy-forum-san-antonio-rodriguez/ [https://perma.cc/E4UR-ZZBQ] (last visited Jan. 15, 2023).Show More while Michelle Adams and Derek W. Black have observed that the decision has engendered “[d]ecades of [s]cholarly [o]utrage.”84 84.Michelle Adams and Derek W. Black, Equality of Opportunity and the Schoolhouse Gate, 128 Yale L.J. 2302, 2323–24 (2019).Show More But whatever one’s view of the merits of the Court’s rejection of the constitutional challenge in Rodriguez, one point is crystal clear: The events of 1968 and 1969 played a crucial role in determining the outcome in the case.

Rodriguez was decided by the narrowest of margins, with the four Nixon appointees joining Justice Stewart to create a five-justice majority that rejected the relevant constitutional arguments of the challengers. Thus, a change in even one vote would have changed the result. Given this reality, the progressive defeat was in essence a by-product of the combination of Chief Justice Warren’s decision to leave the Court, the failure of the Senate to confirm the successor nominated by Lyndon Johnson, the victory of Richard Nixon in the presidential election of 1968, and the circumstances that forced Justice Fortas to resign the subsequent year. Conversely, if either Nixon had not had the opportunity to appoint a successor to Justice Warren in 1969 or if Justice Fortas had remained on the Court, progressives would no doubt have been far more satisfied with the Court’s resolution of the issues raised in Rodriguez.

Thus, like Dobbs, Rodriguez provides a dramatic example of what might aptly be described as the contingent nature of constitutional law. Given the place that the idea of judicial review has come to occupy in the American political culture, the Justices of the Supreme Court will inevitably be called upon to resolve a variety of ideologically-charged disputes in which either result might plausibly be characterized as being within the mainstream of constitutional thought at the time that the case comes before the Court. In each such case, the resolution of the dispute will depend on the jurisprudential and political perspectives of the current Justices who are sitting on the Court at the time that the case is decided. In other words, the outcome will depend on the makeup of the Court, which will in turn be determined by a variety of factors, including but not limited to the timing of vacancies, the ideological and jurisprudential agenda of the president charged with filling each vacancy, the degree of the president’s commitment to making choices who will advance his agenda once on the Court, and the success of the president in identifying candidates that will actually advance the agenda and having those candidates confirmed.85 85.See Mark A. Graber, The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order, 4 Ann. Rev. L. Soc. Sci. 361, 364 (2008) (noting that the Court’s decisions reflect the views of “[some] subset of the lawmaking elite”); Richard H. Pildes, Is the Supreme Court a “Majoritarian” Institution?, 4 Sup. Ct. Rev. 103, 140 (2010) (noting “[t]he role of luck” in determining the makeup of the Court).Show More In controversial cases, it is the interaction among these factors, rather than the abstract merits of legal arguments, that has the greatest influence on the evolution of constitutional doctrine.

  1.  142 S. Ct. 2228 (2022). ↑
  2.  410 U.S. 113 (1973), overruled by Dobbs, 142 S. Ct. 2228. ↑
  3.  505 U.S. 833 (1992), overruled by Dobbs, 142 S. Ct. 2228. ↑
  4.  411 U.S. 1 (1973). ↑
  5.  The decisions of the Court during this period are discussed in detail in Lucas A. Powe, Jr., The Warren Court and American Politics 239–462 (2000). Cf. Justin Driver, The Constitutional Conservatism of the Warren Court, 100 Calif. L. Rev. 1101, 1114 (2012) (arguing that the progressive reputation of the Warren Court is overstated). ↑
  6.  391 U.S. 430, 441–42 (1968). ↑
  7.  Id. at 431–32. ↑
  8.  347 U.S. 483 (1954); 349 U.S. 294 (1955). ↑
  9.  Green, 391 U.S. at 431–32. ↑
  10.  Id. at 432–34. ↑
  11.  Id. at 441. ↑
  12.  Id. at 433–34 n.2. ↑
  13.  Id. at 441–42. ↑
  14.  Id. at 437–38. ↑
  15.  Id. at 438. ↑
  16.  Id. (quoting Griffin v. Cnty. Sch. Bd., 377 U.S. 218, 234 (1964)). ↑
  17.  Id. at 439. ↑
  18.  Id. at 441–42. ↑
  19.  372 U.S. 353 (1963). ↑
  20.  Id. at 357–58. ↑
  21.  383 U.S. 663, 668 (1963) (citations omitted). ↑
  22.  McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807 (1969). ↑
  23.  Philip B. Kurland, Equal Educational Opportunity: The Limits of Constitutional Jurisprudence Undefined, 35 Univ. Chi. L. Rev. 583, 592 (1968). ↑
  24.  Id. at 583. ↑
  25.  Id. at 588. ↑
  26.  See Gladwin Hill, Nixon Denounces Press as Biased, N.Y. Times, Nov. 8, 1962, at 1. ↑
  27.  See Robert B. Semple, Jr., The Republican Race; Nixon: The Front-Runner Looks Over His Shoulder, N.Y. Times, May 5, 1968, at E2. ↑
  28.  See Michael Bobelian, Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon, and the Forging of the Modern Supreme Court 57, 67 (2019). ↑
  29.  See, e.g., Nixon Links Court to Rise in Crime, N.Y. Times, May 31, 1968, at 18. ↑
  30.  See Kevin J. McMahon, Nixon’s Court: His Challenge to Judicial Liberalism and its Political Consequences 57 (2011). ↑
  31.  See Laura Kalman, The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court 124 (2017). ↑
  32.  Id. ↑
  33.  Dennis J. Hutchinson, Hail to the Chief: Earl Warren and the Supreme Court, 81 Mich. L. Rev. 922, 928 n.23 (1983). ↑
  34.  The controversy over the Justice Fortas appointment is described in detail in Bobelian, supra note 28, at 55; Laura Kalman, Abe Fortas: A Biography 327–58 (1990); Bruce Allen Murphy, Fortas: The Rise and Ruin of a Supreme Court Justice 269–526 (1988). ↑
  35.  114 Cong. Rec. 18171 (1968). ↑
  36.  See Kalman, supra note 31, at 135. ↑
  37.  Marjorie Hunter, “Cronyism” Scored on Court Choices, N.Y. Times, June 28, 1968, at 1. ↑
  38.  Id. ↑
  39.  See, e.g., Kalman, supra note 31, at 151–54. ↑
  40.  Id. at 155–58. ↑
  41.  Id. at 166–69. ↑
  42.  Robert C. Albright, Fortas Rejects Senate Bid to Testify Again, Wash. Post, Sept. 1, 1968, at A1. ↑
  43.  Max Frankel, Humphrey Terms Nixon ‘A Wiggler’ on Crucial Issues, N.Y. Times, Sept. 12, 1968, at 36. ↑
  44.  Albright, supra note 42. ↑
  45.  90 Cong. Rec. 28933 (1968). ↑
  46.  See Fred P. Graham, Fortas Abandons Nomination Fight; Name Withdrawn, N.Y. Times, Oct. 3, 1968, at 1. ↑
  47.  Marquis Childs, Eastland’s Control Over the Judiciary, Wash. Post, Oct. 18, 1968, at A24. ↑
  48.  Dennis M. Higgins, Dr. Abernathy Urges Phila. Clergy to Aid Humphrey Campaign, Phila. Inquirer, Oct. 30, 1968, at 3. ↑
  49.  Robert C. Jensen, Humphrey Brands His Rival “Irresponsible” on Weapons, Wash. Post, Oct. 28, 1968, at A1. ↑
  50.  George Gallup, Nixon Leads HHH 43 to 31 Per Cent; Wallace Given 19, Wash. Post, Sept. 15, 1968, at A2. ↑
  51.  George Gallup & Louis Harris, Polls Say Election Is Tossup, Wash. Post, Nov. 4, 1968, at A1. ↑
  52.  Humphrey would have received a majority of the electoral votes if he had carried the states of California, Illinois, and Missouri. If 112,000 of those who voted for Nixon in California had instead chosen Humphrey, Humphrey would have received an additional forty electoral votes, while in Illinois Humphrey would have received an additional twenty votes if 68,000 Nixon voters had switched their allegiance. In Missouri Humphrey would have emerged victorious if fewer than 11,000 members of the electorate had voted for him rather than Nixon. Election of 1968, Am. Presidency Project, https://www.presidency.ucsb.edu/‌statistics/elections/1968 [https://perma.cc/7PJS-ALPS] (last visited Jan. 15, 2023). ↑
  53.  See, e.g., Jacobellis v. Ohio, 378 U.S. 184, 196 (1964) (White, J., concurring in the judgment) (finding that the First Amendment limits government authority to regulate sexually explicit material); id. at 197 (Stewart, J., concurring) (same). ↑
  54.  The sequence of events that culminated in Justice Fortas’s resignation is summarized in Don Oberdorfer, The Gathering of the Storm That Burst Upon Abe Fortas, Wash. Post, May 16, 1969, at A1. The events are discussed in greater detail and analyzed in Kalman, supra note 34, at 359–76; Kalman, supra note 31, at 180–208; Murphy, supra note 34, at 544–77. ↑
  55.  William Lambert, The Justice . . . and the Stock Manipulator, Life Magazine, May 9, 1969, 32, 33. The nature of Justice Fortas’s relationship with Wolfson is discussed in detail in Kalman, supra note 34, at 322–25, 359–60. ↑
  56.  Lambert, supra note 55, at 35–36. ↑
  57.  Id. at 35. ↑
  58.  Id. at 33. ↑
  59.  Justice’s Resignation First Under Impeachment Threat, CQ Almanac (1969), https://webcache.googleusercontent.com/search?q=cache:JW05KQ9srnoJ:https://library.cqpress.com/cqalmanac/document.php%3Fid%3Dcqal69-1247815&cd=1&hl=en&ct=clnk&gl‌=us [https://perma.cc/87P2-6MHQ] (last visited Apr. 6, 2023). ↑
  60.  The sequence of events that culminated in Justice Blackmun’s ascension to the Court are described in detail in Kalman, supra note 31, at 245–48. ↑
  61.  The Texas system is described in detail in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 6–11 (1973). ↑
  62.  Id. at 11–13. ↑
  63.  See id. at 29–30 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)). ↑
  64.  See id. at 18. ↑
  65.  409 U.S. 434, 450–51 (1973). ↑
  66.  Rodriguez, 411 U.S. at 28. ↑
  67.  304 U.S. 144, 152–53 n.4 (1938). ↑
  68.  Rodriguez, 411 U.S. at 28. ↑
  69.  Id. at 33–34. ↑
  70.  Id. at 36–37. ↑
  71.  See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). ↑
  72.  Rodriguez, 411 U.S. at 43. ↑
  73.  See id. at 37. ↑
  74.  Id. at 44. ↑
  75.  Id. at 49. ↑
  76.  Id. at 63–70 (White, J., dissenting). ↑
  77.  Id. at 64. ↑
  78.  Id. at 63 (Brennan, J., dissenting). ↑
  79.  Id. at 70–133 (Marshall, J., dissenting). ↑
  80.  Id. at 98–99 (Marshall, J., dissenting). ↑
  81.  Id. at 71 (Marshall, J., dissenting). ↑
  82.  Id. at 71–72 (Marshall, J., dissenting) (citation omitted). ↑
  83.  163 U.S. 537 (1896). See Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Inequitable Schools Demand a Federal Remedy, Education Next, https://www.education‌next.org/inequitable-schools-demand-federal-remedy-forum-san-antonio-rodriguez/ [https://perma.cc/E4UR-ZZBQ] (last visited Jan. 15, 2023). ↑
  84.  Michelle Adams and Derek W. Black, Equality of Opportunity and the Schoolhouse Gate, 128 Yale L.J. 2302, 2323–24 (2019). ↑

  85.  See Mark A. Graber, The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order, 4 Ann. Rev. L. Soc. Sci. 361, 364 (2008) (noting that the Court’s decisions reflect the views of “[some] subset of the lawmaking elite”); Richard H. Pildes, Is the Supreme Court a “Majoritarian” Institution?, 4 Sup. Ct. Rev. 103, 140 (2010) (noting “[t]he role of luck” in determining the makeup of the Court). ↑

©Virginia Law Review Association. All rights reserved.