Volume 109

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). ↑

Foreword: We Have Only Begun to Fight

Introduction

This story begins with one parent who took his demands for equal educational opportunity for his children all the way to the highest court of our land. Demetrio Rodriguez served our nation in World War II and the Korean War.1 1.Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Introduction: The Enduring Legacy of San Antonio Independent School District v. Rodriguez, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity 1, 3 (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015).Show More Yet, back in Texas, his children were in subpar and inferior schools when compared with other schools in San Antonio. Following a student walkout in spring 1968 that protested the subpar and inferior school facilities at Edgewood High School, Rodriguez organized other Mexican American parents in the Edgewood School District.2 2.Id.Show More He and his fellow parents obtained legal counsel and challenged the school funding disparities between Edgewood and nearby Alamo Heights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.3 3.Id. at 3–4.Show More

The parents convinced a federal court in the Western District of Texas to strike down the Texas funding system as a violation of equal protection.4 4.Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp. 280, 285 (W.D. Tex. 1971), rev’d, 411 U.S. 1 (1973).Show More The court noted that despite the Edgewood district’s higher tax rate, the lower property wealth of their district yielded only $21 per pupil while a lower tax rate in Alamo Heights yielded $307, and that the state had failed to close this funding gap.5 5.Id. at 282.Show More The lower court applied strict scrutiny to the funding system and found that the system harmed a fundamental interest and did not advance the local control of schools that the state had alleged justified the system.6 6.Id. at 282–85.Show More

In San Antonio Independent School District v. Rodriguez, the United States Supreme Court overturned that decision in a 5-4 ruling that reaffirmed the primacy of state and local authority over education.7 7.San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 58–59 (1973).Show More The Court held that the federal constitution neither explicitly nor implicitly guarantees a right to education and rejected the families’ arguments that the close connection between education and the right to vote and to the First Amendment right to free speech served as sufficient justification for recognizing a fundamental right to education.8 8.Id. at 35–37.Show More The Court emphasized the importance of deference to states in how they raise and distribute public revenue.9 9.Id. at 40–41.Show More The Court highlighted the establishment and increase of state aid, as well as Texas’ decision to grant localities the ability to tax and spend on education as “an effort to extend public education and to improve its quality” that warranted due regard to the rights that the Constitution reserves to states.10 10.Id. at 39.Show More Rational basis review, rather than strict scrutiny, was appropriate given the Court’s tradition of deference to a state legislature’s decision on how to distribute state and local tax revenues.11 11.Id. at 40–41.Show More

The Court further justified its decision to apply rational basis review by disclaiming any expertise on the education debates at the heart of the lawsuit regarding whether money matters for educational quality and the aims of public schools.12 12.Id. at 42–43.Show More The Court leaned heavily on federalism as a justification for its decision and emphasized the tradition of local control of education. Indeed, the Court could not imagine a decision with more potential to impact federalism, because the case ultimately pressed the Court “to abrogate systems of financing public education presently in existence in virtually every State.”13 13.Id. at 44.Show More In other words, the widespread nature of the problem was one of several reasons why the Court stayed its hand. The Court upheld Texas’ approach to funding schools as rationally related to its interest in local control of schools and the flexibility it provides localities to design education in ways that best serve local interests.14 14.Id. at 47–55.Show More According to the Court, this local control further permits “experimentation, innovation, and a healthy competition for educational excellence” in ways that are analogous to the freedom of states within our federal system of government.15 15.Id. at 50.Show More

The Court’s refusal to recognize education as a fundamental right in Rodriguez closed the federal courthouse doors to parents and students who are experiencing harmful funding disparities that hinder the quality of their educational opportunities and the primary mechanism to become college and career ready, as well as engaged citizens. Fortunately, parents, students, and the lawyers who represent them were undeterred by the Supreme Court’s rejection of their claims. They continued their battles in state courts, and these battles continue to yield victories for students and families today. The effectiveness and persuasiveness of these cases has been buttressed by the standards and accountability movement that gave courts a clearly defined legislative goal for education and concrete evidence of when that goal was not being met.16 16.See Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Conclusion: Creating New Pathways to Equal Educational Opportunity, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 263, 266–70; Michael A. Rebell, Rodriguez Past, Present, and Future, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 65, 70.Show More Despite important victories, these efforts have not been able to secure a high-quality and equitable education for every child in the United States due in large part to the inconsistent state approaches to state rights to education.17 17.See Kimberly Jenkins Robinson, Learning Pol’y Inst., Protecting Education as a Civil Right: Remedying Racial Discrimination and Ensuring a High-Quality Education 13–15 (2021), https://learningpolicyinstitute.org/media/548/download?inline&file=Education_As_Civil_Right_REPORT.pdf [https://perma.cc/JV3X-88YH]; Kimberly Jenkins Robinson, Introduction: The Essential Questions Regarding a Federal Right to Education, in A Federal Right to Education: Fundamental Questions for Our Democracy 1, 13–16 (Kimberly Jenkins Robinson ed., 2019) [hereinafter Robinson, The Essential Questions Regarding a Federal Right to Education].Show More

I. Some Battles Won Since Rodriguez

The fiftieth anniversary of San Antonio Independent School District v. Rodriguez provides an opportune time to reflect on both the victories and losses that have followed in its wake. First, it is important to acknowledge the victories. One important victory from these state court cases has been the building of scholarly and judicial consensus that—not surprisingly—money spent well matters for schools. Another important victory has been confirmation that courts possess the ability to insist upon reforms that advance equity and adequacy and the capacity to competently analyze the complex educational and social science research and data at the heart of these cases. The success of courts in adjudicating these claims undermines the Rodriguez Court’s assertions that courts should not be deciding these challenging issues.18 18.Rodriguez, 411 U.S. at 41–43; Rebell, supranote 16, at 72.Show More

Battles have been won for students in states throughout our nation where courts have held that state legislatures have denied the students’ right to an equal or adequate education, as guaranteed by state constitutions.19 19.Appendix: School Finance Litigation Cases, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 275 (providing a list of successful school funding decisions).Show More Two recent rulings show the vital role that the courts play in remedying school funding inequities and inadequacies.

In 2022, the highest court in North Carolina held in Hoke County Board of Education v. State20 20.879 S.E.2d 193, 197–99 (N.C. 2022).Show More that the state had to remedy the violations of the state constitutional rights of its schoolchildren to the “sound basic education” that the court had recognized in Leandro I in 199721 21.Leandro v. State (Leandro I), 488 S.E.2d 249, 254 (N.C. 1997) (holding that the North Carolina Constitution guarantees a “sound basic education” to all students and that the state has an obligation to provide this education).Show More and that the court had found were being violated in its 2004 ruling in Leandro II.22 22.Hoke Cnty. Bd. of Educ. v. State (Leandro II), 599 S.E.2d 365, 390–91 (N.C. 2004) (holding that the state had not fulfilled its constitutional duty to deliver a sound basic education and that the state must remedy the constitutional violation).Show More A trial court oversaw an eighteen-year remedial phase in which the court held many hearings and appointed a consultant, WestEd, to provide recommendations on what changes needed to be implemented.23 23.Hoke Cnty. Bd. of Educ., 879 S.E.2d at 206–13, 246.Show More The trial court found a wide array of challenges that fell short of the components needed to run an effective school system: “teacher quality and supply, principal quality and supply, resources and school funding, assessment and accountability systems, low-performing and high-poverty schools, early childhood learning and Pre-K, and alignment and preparation for post-secondary opportunities.”24 24.Id. at 212.Show More

In light of the constitutional violations, the court ordered the state to develop a “Leandro Comprehensive Remedial Plan” through discussions with the plaintiffs and then to begin implementation of the plan.25 25.Id.Show More The state repeatedly refused to appropriate the funds needed to implement the Comprehensive Remedial Plan, despite the trial court ordering the state to do so.26 26.Id. at 213–14.Show More Eventually, the trial court ordered the state to transfer from its general fund: “(a) Department of Health and Human Services (“DHHS”): $189,800,000.00; (b) Department of Public Instruction (“DPI”): $1,522,058,000.00; and (c) University of North Carolina System: $41,300,000.00.”27 27.Id. at 216–17.Show More The court criticized the state for failing to fund a sound basic education for North Carolina’s students and for “the antagonism demonstrated by legislative leaders towards these proceedings, the constitutional rights of North Carolina children, and this [c]ourt’s authority.”28 28.Id. at 215.Show More

The North Carolina Supreme Court in 2022 affirmed the trial court’s order to the legislature.29 29.Id. at 239.Show More The court noted that the North Carolina Constitution made clear that it is the state’s obligatory “sacred duty” to ensure that the fundamental right to education was protected.30 30.Id. at 224 (citation omitted).Show More The court explained that it had an obligation to provide a remedy for violations of constitutional rights, and that it may be called upon to take action that is usually reserved to another branch to fulfil its constitutional obligation.31 31.Id. at 230.Show More The court acknowledged the extraordinary nature of this remedy, but explained that it was warranted because both the legislative and executive branches had failed for eighteen years to remedy the established denial of the constitutional guarantee of access to a “sound basic education.”32 32.Id. at 242.Show More The court also instructed the trial court to retain jurisdiction and expressed hope that this order would mark the beginning of a “new chapter” that moved beyond the distrust and divisions of the past and to march toward constitutional compliance with good faith collaboration.33 33.Id. at 249.Show More

Most recently, a Pennsylvania trial court agreed with a group of low-wealth districts, which regularly serve students with greater needs, that alleged that the state was not providing the “thorough and efficient” education that the Pennsylvania Constitution guarantees all students.34 34.William Penn Sch. Dist. v. Pa. Dep’t of Educ., No. 587 M.D. 2014, 2023 WL 1990723, at *354–55 (Pa. Commw. Ct. Feb. 7, 2023).Show More The court interpreted the Education Clause’s guarantee of a “thorough and efficient” education as a right for each student to receive “a meaningful opportunity to succeed academically, socially, and civically, which requires that all students have access to a comprehensive, effective, and contemporary system of public education.”35 35.Id. at *293.Show More The court then examined both the inputs and outputs of Pennsylvania’s education system and found that students in low-wealth districts were both disproportionately and negatively impacted by the state’s approach to funding schools.36 36.Id. at *312–33, 352.Show More It explained that the system heavily relies on local taxes, which benefits wealthier districts, and that the system failed to adequately account for students’ needs given the typically higher needs of students in low-wealth districts.37 37.Id. at *352.Show More The court rejected the state’s contention that local control justified the current funding approach because, despite its importance, local control was not possible for low-wealth districts that regularly faced difficult decisions regarding which programs to eliminate and which students to serve, when all needed resources.38 38.Id. at *353–54.Show More The trial court ordered the Commonwealth to establish an education system that “does not discriminate against students based on the level of income and value of taxable property in their school districts.”39 39.Id. at *356.Show More

Research confirms that these types of school litigation victories can reap important benefits. Sustained reform of school funding systems that invests 10% more funding over the course of a K–12 education for children from low-income households raises the number of years that students complete in school by 0.46 and adult earnings by almost 10%, while it reduces adult poverty by 6.1%.40 40.C. Kirabo Jackson, Rucker C. Johnson & Claudia Persico, The Effects of School Spending on Educational and Economic Outcomes: Evidence from School Finance Reforms, 131 Q.J. Econ. 157, 160 (2016).Show More Court victories also have been shown to lead states to increase their funding for low-income districts and these “[r]eforms increased the absolute and relative achievement of students in low-income districts.”41 41.Julien Lafortune, Jesse Rothstein & Diane Whitmore Schanzenbach, School Finance Reform and the Distribution of Student Achievement, 10 Am. Econ. J. 1, 23 (2018).Show More These results show that students and society can reap critical tangible benefits when courts require state legislatures to invest additional resources in the educational opportunities of low-income districts. They also show that some states will not make such investments unless ordered to do so by courts.

II. More Battles Ahead

Despite these and numerous other wins and gains from state school finance litigation, far too many students continue to receive low-quality and inequitable educational opportunities, in no small part due to the Court’s decision in San Antonio Independent School District v. Rodriguez. The lived reality of many students, court delays and defeats, as well as data and research, confirm that fifty years after the Court’s decision in Rodriguez, our nation has only begun to fight for a high-quality education for every student––one that prepares them to be engaged citizens and college and career ready. Fifty years after Rodriguez, it is clear that many states will continue to provide students a low-quality and inequitable education unless courts or Congress order them to do otherwise. I briefly highlight here some of the stark realities of conditions in today’s schools, court delays and defeats in school funding litigation,42 42.See also Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 13–14 (describing some of the delays and defeats in school funding litigation).Show More as well as the research and data that confirms both inequitable and inadequate inputs and outputs from our nation’s schools that establish that we have a long fight ahead of us to ensure that all students in the United States receive a high-quality education. Although the Court claimed that its involvement in school funding would have been “premature” in 1973,43 43.San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 42 (1973).Show More fifty years after Rodriguez it is clear that federal intervention is now overdue.44 44.See generally Kimberly Jenkins Robinson, A Congressional Right to Education: Promises, Pitfalls, and Politics, in A Federal Right to Education: Fundamental Questions for Our Democracy, supra note 17, at 186 (examining why a federal law would be an effective and advantageous pathway for recognizing a federal right to education).Show More

Court opinions from school finance litigation teach us that far too many students within our nation are educated without access to the well-qualified teachers and administrators, resources, and facilities that they need to become college and career ready and engaged and informed civic participants. For example, when litigators returned to federal court in Detroit to argue that students were being denied a constitutional right to literacy, the opinion by the U.S. Court of Appeals for the Sixth Circuit ruling in their favor notes the shocking plaintiff allegations that the educational opportunities provided were “schools in name only,” which included an eighth grader in one school teaching math for one month to seventh and eighth grade students, large numbers of teacher vacancies, combined classes that rose to as high as sixty students in a single classroom, and teaching from paraprofessionals and teachers who lacked knowledge about the subject that they were teaching.45 45.Gary B. v. Whitmer, 957 F.3d 616, 624–25 (6th Cir. 2020), vacated en banc, 958 F.3d 1216 (6th Cir. 2020).Show More The court also noted that plaintiffs described schools that were unsafe, where vermin were commonplace, and the heating and cooling systems were so poor that students sometimes passed out from heat or wore coats in school all day.46 46.Id. at 626.Show More Finally, such basic resources as up-to-date textbooks and school libraries also were too often lacking.47 47.Id. at 626–27.Show More

In addition, the North Carolina Supreme Court’s decision to order the state to pay more than $1.7 billion to remedy the statewide violation of the constitutional guarantee of education relied upon compelling evidence that “in way too many school districts across the state, thousands of children in the public schools have failed to obtain, and are not now obtaining[,] a sound basic education as defined by and required by the Leandro decisions.”48 48.Hoke Cnty. Bd. of Educ. v. State, 879 S.E.2d 193, 209, 212, 216–17 (N.C. 2022).Show More The wide array of deficiencies to be remedied indicate that no aspect of the education system was left untouched by constitutional infirmities.49 49.Id. at 212 (noting that the extensive nature of the shortcomings throughout the state included school funding, principal and teacher quality and supply, accountability, early childhood education, low-performing schools of concentrated poverty, and preparation for opportunities upon graduation).Show More

The Pennsylvania litigation also revealed a broad range of educational deficits, such as a high school teacher teaching upper-level French and Spanish in the same classroom; insufficient numbers of special education teachers, English language teachers, and reading specialists; and teachers teaching courses that they are not certified to teach.50 50.William Penn Sch. Dist. v. Pa. Dep’t of Educ., No. 587 M.D. 2014, 2023 WL 1990723, at *62, *76, *78, *99 (Pa. Commw. Ct. Feb. 7, 2023) (citation omitted).Show More The court also noted testimony that documented how students’ educational needs were unmet due to such deficits as large kindergarten classes, an insufficient supply of textbooks for each student, and inadequate funding due to a strong reliance on local funds for schools in low-wealth districts.51 51.Id. at *64, *79–80, *102, *313 (citation omitted).Show More School facility concerns included an inaccessible disability ramp due to unrepaired cracks, a lack of adequate instructional spaces, an elementary school with one bathroom for 125 students, and leaking roofs, including a classroom with water leaking into trashcans placed strategically to catch the water.52 52.Id. at *71, *89–90, *115, *142, *163 (citation omitted).Show More In addition to the widespread deficiencies in cases finding a state constitutional violation, students themselves also have shared tales of unsafe and unsanitary conditions in their schools.53 53.See, e.g.,CNN Newsource, GA High School Students Expose Mold, Crumbling Wall, Sewage Leak at School, WGXA News (Apr. 13, 2022, 2:53 PM), https://wgxa.tv/news/local/‌ga-high-school-students-expose-mold-crumbling-wall-sewage-leak-at-school [https://perma.‌cc/LVM2-CJLX].Show More

In my work teaching law students before the pandemic at the University of Richmond School of Law, I annually took my education law students into two starkly different Virginia high schools: Armstrong High School in Richmond, and Deep Run High School in Henrico County. Although dedicated and capable principals greeted me at each school, the similarities often ended there. At Armstrong High School, my students and I were greeted with metal detectors and school security, and the facilities did not create a welcome learning environment due to signs of neglect and disrepair. Our time in classrooms revealed that many students lacked a computer, out-of-date textbooks were common, and teaching oftentimes focused on the basics. A short distance away in Deep Run High School, we entered a beautiful building where every student had access to a laptop and the teachers used technology to create a rich learning environment. These experiences confirmed those chronicled by University of Virginia President James Ryan in his book Five Miles Away, A World Apart, in which he documents the many ways that students in inner-city and suburban Richmond high schools are experiencing harmful disparities in their learning opportunities.54 54.See generallyJames E. Ryan, Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America (2010) (describing the array of differences in educational opportunities, achievement, and life outcomes for students in Thomas Jefferson High School in Richmond and Freeman High School in Henrico County).Show More These disparities are too often replicated throughout our nation.55 55.Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 3–7.Show More

Furthermore, many students live in states where their state courts either refuse to adjudicate or reject claims that the state’s approach to funding schools results in a violation of the state constitution. The Florida Supreme Court in its 2019 decision in Citizens for Strong Schools, Inc. v. Florida State Board of Education reaffirmed that the Florida Constitution’s protection of education as a paramount state duty and guarantee of an efficient and “high quality” education failed to provide the court with a standard that it could administer without intruding into the legislature’s authority over education, as it had previously determined in Coalition for Adequacy & Fairness in School Funding, Inc. v. Chiles.56 56.Citizens for Strong Schs., Inc. v. Fla. State Bd. of Educ., 262 So. 3d 127, 141 (Fla. 2019) (citing Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996)).Show More Similarly, the Nevada Supreme Court in its 2022 decision in Shea v. State rejected plaintiffs’ argument that the state was not fulfilling its constitutional obligation to provide sufficient education resources because the Nevada Constitution committed education to the legislature, rendering the claims nonjusticiable.57 57.Shea v. State, 510 P.3d 148, 150 (Nev. 2022).Show More These and other losses confirm that many students lack access to a remedy for their inadequate or inequitable school funding system and thus need a federal right to education to remedy the harms caused by their state’s approach to funding schools.

Many other students live in states where repeated implementation delays of court orders means that years of their education can be completed without them experiencing any change in their educational opportunities. For instance, the North Carolina Supreme Court in the Hoke County litigation noted above upheld the extraordinary remedy of ordering the transfer of more than $1.7 billion in state funds to implement a plan to remedy the constitutional violation because, “[f]or eighteen years, the executive and legislative branches have repeatedly failed to remedy an established statewide violation of the constitutional right to the opportunity to a sound basic education.”58 58.Hoke Cnty. Bd. of Educ. v. State, 879 S.E.2d 193, 242, 267 (N.C. 2022).Show More This means that more than a generation of students entered and departed the North Carolina schools without attending schools in compliance with their right to a sound, basic education. Similarly, the Washington Supreme Court held the state in contempt for almost four years, from September of 2014 to June of 2018, for failing to comply with its constitutional obligation to provide a basic education for the students of the state and initiated a fine of $100,000 per day in 2015.59 59.For the litigation in Washington, see McCleary v. State, No. 84362-7, at 4 (Wash. Sept. 11, 2014) (order); McCleary v. State, No. 84362-7, at 2 (Wash. Aug. 13, 2015) (order); McCleary v. State, No. 84362-7, at 4 (Wash. June 7, 2018) (order).Show More In 2016, in the Gannon v. State litigation, the Kansas Supreme Court threatened to shut down the entire school system by June 30, 2016, if the legislature did not remedy the court’s 2014 finding that a variety of wealth-based disparities in its funding of the schools were unconstitutional.60 60.For the litigation in Kansas, see Gannon v. State, 368 P.3d 1024, 1061–62 (Kan. 2016); Gannon v. State, 319 P.3d 1196, 1204 (Kan. 2014).Show More The Kansas legislature eventually passed a law in June 2016 that cured the violation in a special legislative session.61 61.Julie Bosman, Kansas Lawmakers Pass Bill in Bid to Stop Court from Closing Schools, N.Y. Times(June 24, 2016), https://www.nytimes.com/2016/06/25/us/kansas-lawmakers-pass-bill-in-bid-to-stop-court-from-closing-schools.html [https://perma.cc/Z5QG-7S7V].Show More Securing a constitutional school finance system and the benefits that it brings remains a long and arduous journey, even when courts declare that students are entitled to one.62 62.Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 13 (“[R]esistance to successful school finance litigation is often fierce, protracted, and effective in limiting the scope of reforms.”).Show More

Data and research on opportunities to learn as well as student achievement complete the compelling portrait of state education systems that are not providing students high-quality and equitable educational opportunities nor preparing them effectively to be college and career ready. First, social scientists agree that students in districts with higher poverty concentrations need additional funding for their educational, family, and social support to compete on anything close to a level playing field with their peers.63 63.See generally Richard Rothstein, Why Children from Lower Socioeconomic Classes, on Average, Have Lower Academic Achievement than Middle-Class Children, in Closing the Opportunity Gap: What America Must Do to Give Every Child an Even Chance 61 (Prudence L. Carter & Kevin G. Welner eds., 2013) (explaining how concentrated socioeconomic disadvantage depresses academic achievement and discussing possible social and economic reforms).Show More Data confirms that a majority of states in the United States provide either the same or less funding to students who need the most funding. A recent school funding analysis found that when all districts are divided into quintiles, on average the highest poverty districts spend 13% less than adequate spending levels and the lowest poverty districts spend 32% above adequacy, a 45% age point opportunity gap between these districts.64 64.Bruce D. Baker, Matthew Di Carlo & Mark Weber, The Adequacy and Fairness of State School Finance Systems4 (5th ed. 2022), https://files.eric.ed.gov/fulltext/ED625887.pdf [https://perma.cc/T35U-558X].Show More Even more troubling is the pervasive nature of these gaps in opportunity throughout each of the states, with the size of the gap varying significantly.65 65.Danielle Farrie & David G. Sciarra, Educ. L. Center, Making the Grade: How Fair is School Funding in Your State? 16 (2022), https://edlawcenter.org/assets/files/pdfs/publication‌s/Making-the-Grade-2022-Report.pdf [https://perma.cc/FL73-ZCEM].Show More

Second, states also are disadvantaging the educational opportunities of the majority of students, with a disproportionate burden inflicted on our students of color. More than half (52%) of students in our nation attend schools that are below adequate funding to reach the modest aim of average U.S. test scores.66 66.Baker et al., supra note 64, at 35.Show More Even more troubling is the fact that 71% of Latinx and 75% of African American students, along with 55% of American Indian and Alaskan Native students, attend such schools.67 67.Id.Show More In contrast, just over a third (35%) of white students and 44% of Asian students attend schools that are inadequately funded.68 68.Id.Show More African American students experience the largest average funding inadequacies at 17%, and Latinx students receive the next largest at 11% below adequate funding.69 69.Id.Show More White students on average attend schools that receive approximately 22% more funding than is needed to attain adequacy, while Asian students receive about 15% more funding than is needed to attain adequacy.70 70.Id.Show More

In addition, EdBuild found in a 2019 report that districts in which more than 75% of students are nonwhite receive a startling $23 billion less than districts in which more than 75% of students are white, even though they educate the same number of students.71 71.EdBuild, $23 Billion 4 (2019), https://edbuild.org/content/23-billion/full-report.pdf [https://perma.cc/G2VH-2WDB].Show More On average, nonwhite districts received about $2,200 less per student than predominantly white districts.72 72.Id. (finding that white school districts receive $13,908 and nonwhite districts receive $11,682 per pupil).Show More No child in our nation should be disadvantaged by such state underinvestment in education, and such disadvantages are more egregious when they are disproportionately inflicted on traditionally underserved students of color.

Third, our national test scores and other research confirm that we are not preparing students well for college and career or to be engaged citizens. Recent results from the National Assessment of Educational Progress (“NAEP”) found that more than one third (37%) of fourth grade students performed below NAEP Basic and 29% performed at NAEP Basic in reading, which means fully two-thirds of fourth graders in our nation are not acquiring the fundamental reading skills that they will need for future schooling.73 73.Nat’l Ctr. for Educ. Stat., NCES 2022-126, 2022 Reading Assessment Highlighted Results for the Nation, States, and Districts at Grades 4 and 8 (2022), https://www.nationsreportcard.gov/highlights/reading/2022/ [https://perma.cc/S4D4-Y3TU].Show More The 37% who scored below NAEP Basic represent the largest percentage below NAEP Basic of all prior assessments, dating back to 2005.74 74.Id.Show More At eighth grade, more than two-thirds of students also are at or below basic in reading, with 30% below NAEP Basic and 39% at NAEP Basic.75 75.Id.Show More The 30% of eighth graders below NAEP Basic represent the largest percentage of students at this level from all prior assessments, which began in 1998.76 76.Id.Show More Hispanic, Black, and Native American students performed below their White and Asian peers, with Asians attaining the highest achievement levels.77 77.Id.Show More

Turning to math, in 2022, 25% of fourth graders scored at the below basic level and 39% performed at the basic level in math on NAEP.78 78.Nat’l Ctr. for Educ. Stat., NCES 2022-124, 2022 Mathematics Assessment Highlighted Results for the Nation, States, and Districts at Grades 4 and 8 (2022) [hereinafter 2022 Mathematics Assessment Highlighted Results], https://www.nationsreportcard.gov/‌highlights/mathematics/2022/ [https://perma.cc/F8F8-E89E].Show More NAEP Basic is defined as an achievement level that “denotes partial mastery of prerequisite knowledge and skills that are fundamental for proficient work at each grade,” while NAEP Proficient “represents solid academic performance” and “demonstrate[s] competency over challenging subject matter.”79 79.Nat’l Ctr. for Educ. Stat., NCES 2010-468, An Introduction to NAEP: National Assessment of Educational Progress 13 (2010), https://nces.ed.gov/nationsreportcard/pdf/‌parents/2010468.pdf [https://perma.cc/H7M7-U3FK].Show More This means that almost two-thirds of fourth graders are not successfully mastering the mathematical foundations that will enable them to succeed at higher level math in later grades. In addition, the percentage of students who performed below Basic was larger than all prior NAEP test scores since 2003.80 80.2022 Mathematics Assessment Highlighted Results, supra note 78.Show More Even larger percentages of students were below NAEP Basic (38%) and at NAEP Basic (35%) by eighth grade, which places almost three quarters of students at this low level of math performance.81 81.Id.Show More White and Asian students similarly outperformed their Hispanic, Black, and Native American peers on these assessments, with Asian students performing the best of all students.82 82.Id.Show More

History confirms that although our nation’s founders and the architects of common schools created public schools to enable students to one day fulfill their civic duties, schools have been failing to serve this function for many years.83 83.See Michael A. Rebell, Flunking Democracy: Schools, Courts, and Civic Participation 2–5 (2018); Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735, 765–816 (2018).Show More Evidence of this failure can be found in the last administration of the NAEP civics assessment, which found that only one in four students in eighth grade were proficient in civics in 2018.84 84.Nat’l Ctr. for Educ. Statistics, NCES 2020-017, 2018 Civics Report Card at Grade 8 (2020) [hereinafter 2018 Civics Report Card], https://www.nationsreportcard.gov/civics/‌results/achievement/ [https://perma.cc/G2F7-MH22].Show More One cause for this low performance has been the emphasis on reading and math skills,85 85.The shift away from a focus on civics education occurred in the second part of the twentieth century. Rebell, supra note 83, at 17.Show More despite the lackluster NAEP scores in those areas as well. Like school funding, this democracy gap has a racial dimension, with white students possessing greater knowledge of and skills in civics than students of color and students from low-income households.86 86.2018 Civics Report Card, supra note 84.Show More

Finally, prior to the pandemic, research shows that students lost $600 billion in state and local funding of public schools from 2008–2018 due to states’ refusal to return their fiscal effort to the levels that existed before the Great Recession.87 87.Danielle Farrie & David G. Sciarra, Educ. L. Center, $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].Show More This means that schools entered the pandemic with a deficit that the pandemic then exacerbated by placing unprecedented new demands on students, staff, and teachers. Generous federal funding through the three pandemic relief laws that together resulted in approximately $3,720 in additional funding per student is beginning to empower states and districts to address the harms inflicted by the pandemic.88 88.American Rescue Plan Act of 2021, Pub. L. No. 117-2, § 2001(b), 135 Stat. 4, 19; Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, div. M, tit. III, §§ 311(b)–312, 134 Stat. 1182, 1924–29 (2020); Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Pub. L. No. 116-136, 134 Stat. 281 (2020); seeMichael Griffith, An Unparalleled Investment in U.S. Public Education: Analysis of the American Rescue Plan Act of 2021, Learning Pol’y Inst. Blog (Mar. 11, 2021), https://learningpolicyinstitute.org/blog/covid-analysis-american-rescue-plan-act-2021 [https://perma.cc/5KNG-6JRG]; Chad Aldeman, Best- and Worst-Case Scenarios for How Stimulus Dollars Will Be Spent,Thomas B. Fordham Inst. (Mar. 26, 2021), https://fordhaminstitute.org/national/commentary/best-and-worst-case-scenarios-how-school-stimulus-dollars-will-be-spent [https://perma.cc/4W3A-6K4R]; see generallyKimberly Jenkins Robinson, Strengthening the Federal Approach to Educational Equity During the Pandemic, 59 Harv. J. on Legis. 35 (2022) (documenting the educational harms inflicted by the pandemic and critiquing the strengths and weaknesses of the federal approach to K–12 education during the pandemic).Show More However, diminished educational opportunities before the pandemic hit mean that some of these funds will inevitably be diverted to get schools and staffing back to the funding levels that they were at before the Great Recession, rather than for the remediation that the funds were distributed to address. Recent achievement data shows great cause for concern about the impact of the pandemic on students, particularly those who were already further behind.89 89.Sarah Mervosh, The Pandemic Erased Two Decades of Progress in Math and Reading, N.Y. Times (Sept. 1, 2022), https://www.nytimes.com/2022/09/01/us/national-test-scores-math-reading-pandemic.html [https://perma.cc/JB4Z-C8SE].Show More

Conclusion

The enduring nature of low-quality and inadequate public schools confirm that the fiftieth anniversary of San Antonio Independent School District v. Rodriguez provides an occasion to launch a more fulsome attack on the funding systems and political inertia that enable inequitable and inadequate educational opportunities to persist that impact far too many students and that disproportionately impact students from low-income families and children of color. Evidence abounds of the need to increase our fight for our students’ education, our democracy, and our economy. Our nation must expand and energize the fight for the right of every student to receive a high-quality education that prepares students for civic engagement, as well as college and career. We must fight for equitable and excellent schools with even more determination than those who engaged in and continue to fight for our civil rights. Until our nation reaches the point when low-quality and inequitable educational opportunities are a thing of the past, the fight that Demetrio Rodriguez began more than fifty years ago must not only be continued, but it must be amplified to a national scale.

  1.  Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Introduction: The Enduring Legacy of San Antonio Independent School District v. Rodriguez, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity 1, 3 (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015). ↑
  2.  Id. ↑
  3.  Id. at 3–4. ↑
  4.  Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp. 280, 285 (W.D. Tex. 1971), rev’d, 411 U.S. 1 (1973). ↑
  5.  Id. at 282. ↑
  6.  Id. at 282–85. ↑
  7.  San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 58–59 (1973). ↑
  8.  Id. at 35–37. ↑
  9.  Id. at 40–41. ↑
  10.  Id. at 39. ↑
  11.  Id. at 40–41. ↑
  12.  Id. at 42–43. ↑
  13.  Id. at 44. ↑
  14.  Id. at 47–55. ↑
  15.  Id. at 50. ↑
  16.  See Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Conclusion: Creating New Pathways to Equal Educational Opportunity, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 263, 266–70; Michael A. Rebell, Rodriguez Past, Present, and Future, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 65, 70. ↑
  17.  See Kimberly Jenkins Robinson, Learning Pol’y Inst., Protecting Education as a Civil Right: Remedying Racial Discrimination and Ensuring a High-Quality Education 13–15 (2021), https://learningpolicyinstitute.org/media/548/download?inline&file=Education_As_Civil_Right_REPORT.pdf [https://perma.cc/JV3X-88YH]; Kimberly Jenkins Robinson, Introduction: The Essential Questions Regarding a Federal Right to Education, in A Federal Right to Education: Fundamental Questions for Our Democracy
    1, 13–16

    (Kimberly Jenkins Robinson ed., 2019) [hereinafter Robinson, The Essential Questions Regarding a Federal Right to Education]. ↑

  18.  Rodriguez, 411 U.S. at 41–43; Rebell, supra note 16, at 72. ↑
  19.  Appendix: School Finance Litigation Cases, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 275 (providing a list of successful school funding decisions). ↑
  20.  879 S.E.2d 193, 197–99 (N.C. 2022). ↑
  21.  Leandro v. State (Leandro I), 488 S.E.2d 249, 254 (N.C. 1997) (holding that the North Carolina Constitution guarantees a “sound basic education” to all students and that the state has an obligation to provide this education). ↑
  22.  Hoke Cnty. Bd. of Educ. v. State (Leandro II), 599 S.E.2d 365, 390–91 (N.C. 2004) (holding that the state had not fulfilled its constitutional duty to deliver a sound basic education and that the state must remedy the constitutional violation). ↑
  23.  Hoke Cnty. Bd. of Educ., 879 S.E.2d at 206–13, 246. ↑
  24.  Id. at 212. ↑
  25.  Id. ↑
  26.  Id. at 213–14. ↑
  27.  Id. at 216–17. ↑
  28.  Id. at 215. ↑
  29.  Id. at 239. ↑
  30.  Id. at 224 (citation omitted). ↑
  31.  Id. at 230. ↑
  32.  Id. at 242. ↑
  33.  Id. at 249. ↑
  34.  William Penn Sch. Dist. v. Pa. Dep’t of Educ., No. 587 M.D. 2014, 2023 WL 1990723, at *354–55 (Pa. Commw. Ct. Feb. 7, 2023). ↑
  35.  Id. at *293. ↑
  36.  Id. at *312–33, 352. ↑
  37.  Id. at *352. ↑
  38.  Id. at *353–54. ↑
  39.  Id. at *356. ↑
  40.  C. Kirabo Jackson, Rucker C. Johnson & Claudia Persico, The Effects of School Spending on Educational and Economic Outcomes: Evidence from School Finance Reforms, 131 Q.J. Econ
    .

    157, 160 (2016). ↑

  41.  Julien Lafortune, Jesse Rothstein & Diane Whitmore Schanzenbach, School Finance Reform and the Distribution of Student Achievement, 10 Am. Econ. J. 1, 23 (2018). ↑
  42.  See also Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 13–14 (describing some of the delays and defeats in school funding litigation). ↑
  43.  San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 42 (1973). ↑
  44.  See generally Kimberly Jenkins Robinson, A Congressional Right to Education: Promises, Pitfalls, and Politics, in A Federal Right to Education: Fundamental Questions for Our Democracy, supra note 17, at
    186

    (examining why a federal law would be an effective and advantageous pathway for recognizing a federal right to education). ↑

  45.  Gary B. v. Whitmer, 957 F.3d 616, 624–25 (6th Cir. 2020), vacated en banc, 958 F.3d 1216 (6th Cir. 2020). ↑
  46.  Id. at 626. ↑
  47.  Id. at 626–27. ↑
  48.  Hoke Cnty. Bd. of Educ. v. State, 879 S.E.2d 193, 209, 212, 216–17 (N.C. 2022). ↑
  49.  Id. at 212 (noting that the extensive nature of the shortcomings throughout the state included school funding, principal and teacher quality and supply, accountability, early childhood education, low-performing schools of concentrated poverty, and preparation for opportunities upon graduation). ↑
  50.  William Penn Sch. Dist. v. Pa. Dep’t of Educ., No. 587 M.D. 2014, 2023 WL 1990723, at *62, *76, *78, *99 (Pa. Commw. Ct. Feb. 7, 2023) (citation omitted). ↑
  51.  Id. at *64, *79–80, *102, *313 (citation omitted). ↑
  52.  Id. at *71, *89–90, *115, *142, *163 (citation omitted). ↑
  53.  See, e.g., CNN Newsource, GA High School Students Expose Mold, Crumbling Wall, Sewage Leak at School, WGXA News (Apr. 13, 2022, 2:53 PM), https://wgxa.tv/news/local/‌ga-high-school-students-expose-mold-crumbling-wall-sewage-leak-at-school [https://perma.‌cc/LVM2-CJLX]. ↑
  54.  See generally James E. Ryan, Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America
    (2010) (

    describing the array of differences in educational opportunities, achievement, and life outcomes for students in Thomas Jefferson High School in Richmond and Freeman High School in Henrico County)

    .

    ↑

  55.  Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 3–7. ↑
  56.  Citizens for Strong Schs., Inc. v. Fla. State Bd. of Educ., 262 So. 3d 127, 141 (Fla. 2019) (citing Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996)). ↑
  57.  Shea v. State, 510 P.3d 148, 150 (Nev. 2022). ↑
  58.  Hoke Cnty. Bd. of Educ. v. State, 879 S.E.2d 193, 242, 267 (N.C. 2022). ↑
  59.  For the litigation in Washington, see McCleary v. State, No. 84362-7, at 4 (Wash. Sept. 11, 2014) (order); McCleary v. State, No. 84362-7, at 2 (Wash. Aug. 13, 2015) (order); McCleary v. State, No. 84362-7, at 4 (Wash. June 7, 2018) (order). ↑
  60.  For the litigation in Kansas, see Gannon v. State, 368 P.3d 1024, 1061–62 (Kan. 2016); Gannon v. State, 319 P.3d 1196, 1204 (Kan. 2014). ↑
  61.  Julie Bosman, Kansas Lawmakers Pass Bill in Bid to Stop Court from Closing Schools, N.Y. Times

    (June 24, 2016), https://www.nytimes.com/2016/06/25/us/kansas-lawmakers-pass-bill-in-bid-to-stop-court-from-closing-schools.html [https://perma.cc/Z5QG-7S7V]. ↑

  62.  Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 13 (“[R]esistance to successful school finance litigation is often fierce, protracted, and effective in limiting the scope of reforms.”). ↑
  63.  See generally Richard Rothstein, Why Children from Lower Socioeconomic Classes, on Average, Have Lower Academic Achievement than Middle-Class Children, in Closing the Opportunity Gap: What America Must Do to Give Every Child an Even Chance 61 (Prudence L. Carter & Kevin G. Welner eds., 2013) (explaining how concentrated socioeconomic disadvantage depresses academic achievement and discussing possible social and economic reforms). ↑
  64.  Bruce D. Baker, Matthew Di Carlo & Mark Weber, The Adequacy and Fairness of State School Finance Systems
    4 (

    5th ed. 2022), https://files.eric.ed.gov/fulltext/ED625887.pdf [https://perma.cc/T35U-558X]. ↑

  65.  Danielle Farrie & David G. Sciarra, Educ. L. Center, Making the Grade: How Fair is School Funding in Your State? 16 (2022), https://edlawcenter.org/assets/files/pdfs/publication‌s/Making-the-Grade-2022-Report.pdf [https://perma.cc/FL73-ZCEM]. ↑
  66.  Baker et al., supra note 64, at 35. ↑
  67.  Id. ↑
  68.  Id. ↑
  69.  Id. ↑
  70.  Id. ↑
  71.  EdBuild, $23 Billion
    4 (2019),

    https://edbuild.org/content/23-billion/full-report.pdf [https://perma.cc/G2VH-2WDB]. ↑

  72.  Id.
    (

    finding that white school districts receive $13,908 and nonwhite districts receive $11,682 per pupil). ↑

  73.  Nat’l Ctr. for Educ. Stat., NCES 2022-126, 2022 Reading Assessment Highlighted Results for the Nation, States, and Districts at Grades 4 and 8 (2022), https://www.nationsreportcard.gov/highlights/reading/2022/ [https://perma.cc/S4D4-Y3TU]. ↑
  74.  Id. ↑
  75.  Id. ↑
  76.  Id. ↑
  77.  Id. ↑
  78.  Nat’l Ctr. for Educ. Stat., NCES 2022-124, 2022 Mathematics Assessment Highlighted Results for the Nation, States, and Districts at Grades 4 and 8 (2022) [hereinafter 2022 Mathematics Assessment Highlighted Results], https://www.nationsreportcard.gov/‌highlights/mathematics/2022/ [https://perma.cc/F8F8-E89E]. ↑
  79.  Nat’l Ctr. for Educ. Stat., NCES 2010-468, An Introduction to NAEP: National Assessment of Educational Progress 13 (2010), https://nces.ed.gov/nationsreportcard/pdf/‌parents/2010468.pdf [https://perma.cc/H7M7-U3FK]. ↑
  80.  2022 Mathematics Assessment Highlighted Results, supra note 78. ↑
  81.  Id. ↑
  82.  Id. ↑
  83.  See Michael A. Rebell, Flunking Democracy: Schools, Courts, and Civic Participation 2–5 (2018); Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735, 765–816 (2018). ↑
  84.  Nat’l Ctr. for Educ. Statistics, NCES 2020-017, 2018 Civics Report Card at Grade 8 (2020) [hereinafter 2018 Civics Report Card], https://www.nationsreportcard.gov/civics/‌results/achievement/ [https://perma.cc/G2F7-MH22]. ↑
  85.  The shift away from a focus on civics education occurred in the second part of the twentieth century. Rebell, supra note 83, at 17. ↑
  86.  2018 Civics Report Card, supra note 84. ↑
  87.  Danielle Farrie & David G. Sciarra, Educ. L. Center, $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]. ↑
  88.  American Rescue Plan Act of 2021, Pub. L. No. 117-2, § 2001(b), 135 Stat. 4, 19; Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, div. M, tit. III, §§ 311(b)–312, 134 Stat. 1182, 1924–29 (2020); Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Pub. L. No. 116-136, 134 Stat. 281 (2020); see Michael Griffith, An Unparalleled Investment in U.S. Public Education: Analysis of the American Rescue Plan Act of 2021, Learning Pol’y Inst. Blog (Mar. 11, 2021), https://learningpolicyinstitute.org/blog/covid-analysis-american-rescue-plan-act-2021 [https://perma.cc/5KNG-6JRG]; Chad Aldeman, Best- and Worst-Case Scenarios for How Stimulus Dollars Will Be Spent, Thomas B. Fordham Inst. (Mar. 26, 2021), https://fordhaminstitute.org/national/commentary/best-and-worst-case-scenarios-how-school-stimulus-dollars-will-be-spent [https://perma.cc/4W3A-6K4R]; see generally Kimberly Jenkins Robinson, Strengthening the Federal Approach to Educational Equity During the Pandemic, 59 Harv. J. on Legis.
    35

    (2022) (documenting the educational harms inflicted by the pandemic and critiquing the strengths and weaknesses of the federal approach to K–12 education during the pandemic). ↑

  89.  Sarah Mervosh, The Pandemic Erased Two Decades of Progress in Math and Reading, N.Y. Times (Sept. 1, 2022), https://www.nytimes.com/2022/09/01/us/national-test-scores-math-reading-pandemic.html [https://perma.cc/JB4Z-C8SE]. ↑

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