It is not often that the U.S. Supreme Court admits that one of its previous decisions, especially one that shaped the fabric of our nation, was fundamentally wrong. One such instance occurred in 1954, when the court famously declared, in Brown v. Board of Education, that the doctrine of “separate but equal” public schools for black children and white children was unconstitutional. In Brown, the court overturned, for public schools, its approval of this doctrine in Plessy v. Ferguson (1896) and established that segregated schools violated the equal protection clause of the Fourteenth Amendment. The court also proclaimed that educational “opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”
Less than two decades later, however, the court turned its back on protecting a right to equal educational opportunity. In San Antonio Independent School District v. Rodriguez (1973), the court held that the Constitution does not protect a right to education. This decision foreclosed a federal judicial remedy for disparities in funding that had relegated Mexican American children in the predominantly low-income Edgewood Independent School District of San Antonio, Texas, to an education that was inferior to that of students in the city’s affluent, mostly white Alamo Heights district. The two districts differed in their ability to raise property taxes because of significant disparities in property values in the two communities. Edgewood adopted the highest tax rate in the area but yielded the least funding for its schools, while Alamo Heights adopted a substantially lower tax rate that yielded considerably more per-pupil funding. Plaintiffs alleged, in part, that these funding disparities denied them their constitutional right to education. All children must be guaranteed that right, they argued, because education equips citizens to fully enjoy their free speech and voting rights.
In a 5–4 decision, the court disagreed. Rodriguez held that the Constitution does not explicitly or implicitly guarantee a right to education. The court denied that it had the authority or the ability to guarantee people “the most effective speech or the most informed electoral choice.” It said further that affirming a constitutional right to education would greatly disturb the balance of education federalism that embraced primary state and local control for education—an important means for encouraging innovation, experimentation, and competition between states. The court also claimed that it was not qualified to address difficult empirical questions such as whether money influenced educational quality. And since the plaintiffs had not alleged that they were denied the “basic minimal skills” required to enjoy the right to free speech and to vote, the court said it did not need to determine if the Constitution guaranteed a right to an education that provides such skills.
Parallels to Plessy
Rodriguez will one day be considered as erroneous as the court’s approval of the “separate but equal” doctrine in Plessy v. Ferguson, for three reasons.
First, just as the states refused to make good on the “equal” part of “separate but equal” after Plessy, for more than 40 years states have failed to provide equal access to the funding needed to achieve excellent schools for all children, largely because of a lack of federal accountability for equitable school funding. The Rodriguez court acknowledged the need for state tax reform related to school funding and for “innovative thinking as to public education, its methods, and its funding.” However, the court was unwilling to order states to engage in this reform. Instead, the court explained that any solutions to these challenges must be determined by state lawmakers and those who elect them. Although some states have undertaken school funding reform since Rodriguez, too many do not provide the funding systems that excellent and equitable schools demand.
Evidence abounds regarding the harmful nature of funding disparities. For example, the U.S. Department of Education’s Equity and Excellence Commission found in its 2013 report that “students, families and communities are burdened by the broken system of education funding in America.” State funding systems are not closely linked to desired educational outcomes: despite the fact that all states have adopted educational standards, the commission found that only a few states have developed funding systems that enable schools to teach all students the content of state standards.
Although scholars do not agree on what constitutes an appropriate minimum funding level, studies that attempt to determine such sums find that many states fund schools below those levels. Nor do states provide effective oversight of funding to ensure that it is used efficiently to meet student needs. Equality eluded generations of African Americans in part because of Plessy. Similarly, many schoolchildren today attend schools that lack sufficient and equitable funding in part because of Rodriguez, which foreclosed the federal judicial accountability that could require states to remedy their inequitable funding disparities.
Second, just as Plessy relegated African Americans to second-class status, Rodriguez relegates many students to second-class status. It is beyond dispute that, because disadvantaged children come to their classrooms with an array of educational and personal challenges, they need additional resources to compete successfully with their more-affluent peers. Therefore, even when states provide equal per-pupil funding for all students, low-income children and communities remain disadvantaged. A recent Education Law Center report found that in 2013, 18 states provided essentially the same funding to districts with high and low concentrations of disadvantaged students. Only 16 states provided additional funding to districts with greater numbers of disadvantaged students, and 14 states provided less funding to such districts. In short, a sizable majority of states have failed to provide equitable funding. These funding inequities provide second-rate educational opportunities to many low-income children that adversely affect their life chances.
Third, just as Plessy resulted in depriving African Americans of access to the schools, jobs, ballots, and opportunities they needed to fully and equally participate in American life, the disparities that Rodriguez tolerates leave many students without the education they need to so participate. Rodriguez effectively foreclosed federal litigation as a mechanism for addressing inequitable disparities in school funding, and Congress has been unwilling to demand that states remedy such disparities. The individual and societal toll is clear: Those who attend inadequate schools are hampered in becoming fully engaged citizens. Workers who are less educated are less productive. Lower educational attainment increases criminal activity. In contrast, effective education significantly increases voting and civic engagement. Because education serves as the gateway to full participation and success in American society, Rodriguez contributes to many students being shut out.
Although the Rodriguez court trusted states to ensure equal educational opportunity, this trust has proven misplaced. Even when students and their families have been successful in school funding litigation based on state constitutions, many state lawmakers have resisted and evaded court mandates to provide equitable or adequate funding. Until we change this reality, students at all income levels will continue to perform poorly in comparison to their international peers.
The Supreme Court could rely on a variety of constitutional protections in affirming a constitutional right to education. It could find that the equal protection clause prohibits wide within-state disparities in educational opportunity that disadvantage some students because they live in a property-poor district, as Justice Thurgood Marshall argued in his Rodriguez dissent. Given the Constitution’s protection of the right to vote, the equal protection clause also would support a federal right to an education that prepares students to be competent voters and civic participants—enabling them, for instance, to comprehend complex ballot initiatives and serve competently on a jury, as education law scholar and litigator Michael Rebell has contended. The court might also invoke the citizenship clause, asserting that all children need an education sufficient to ensure equal citizenship, which entails political, civil, and social equality, as California Supreme Court Justice Goodwin Liu has argued.
The court could emphasize that in a number of past decisions it has recognized “unenumerated” rights, that is, rights that are not explicitly included in the Constitution. For instance, before Rodriguez, the court recognized the right to interstate travel; the right of a parent to control a child’s education; the right to marry a person of a different race; and a woman’s right to terminate a pregnancy. Since Rodriguez, the court has continued to demonstrate a willingness to recognize and expand unenumerated rights—implying a right to consensual same-sex relationships; implying a parent’s right to the care, custody, and control of their child; and extending the right to reproductive privacy to minors. Most recently, the court held in Obergefell v. Hodges that same-sex couples enjoy a constitutionally protected right to marry within the Fourteenth Amendment’s equal protection and due process clauses. These cases confirm the insights of leading constitutional law scholar Akhil Amar, who has stated that various implicit rights, though unenumerated, “are nonetheless full-fledged constitutional entitlements on any sensible reading of the document.”
Enforcing the Right
Once the court recognizes a federal constitutional right to education, families, advocates, and attorneys must begin the hard work of challenging state systems of education as unlawful under the U.S. Constitution. Federal courts should insist that states design their education systems to accomplish the aims of the right to education—be they ending inequitable disparities in educational opportunity, preparing students to be competent voters and civic participants, or ensuring that students are equal citizens. State-level funding litigation has often revealed that education systems are based upon the bargains struck by politicians that are divorced from a rigorous analysis of the aims of education and the best means to achieve them. In designing remedies, the federal courts could draw critical lessons from successful state cases such as Abbott v. Burke (New Jersey) and Campaign for Fiscal Equity v. State of New York. Both cases provide examples of state courts that have insisted that states design funding systems to accomplish specified aims.
Cases alleging a federal constitutional right to education need not center on the illegality of funding disparities. Such cases can cause courts to lose their focus on the underlying disparities in educational opportunity that prevent children from becoming engaged citizens and productive members of society. When cases do implicate funding disparities, the federal courts can build upon the consensus that has emerged from the overwhelming majority of state courts that have concluded, after a review of the relevant social science research, that money does matter for the quality of educational opportunity. Recent research by C. Kirabo Jackson and colleagues confirms that spending increases can improve both educational and adult outcomes for low-income children (see “Boosting Educational Attainment and Adult Earnings,” research, Fall 2015). Therefore, although the Rodriguez court noted that it was unable to address complex policy questions such as this, the Supreme Court would not be stymied by this question in future cases.
When enforcing a constitutional right to education, federal courts should establish clear guidance about what that right requires, while also allowing for flexibility in how states implement it. State funding and governance mechanisms vary. Therefore, federal courts should eschew simple one-size-fits-all remedies such as mandating equal per-pupil funding. States should be able to continue to serve as laboratories of experimentation and innovation that decide how best to provide the right to education. However, these laboratories should operate within federal limits that protect the national interest in a well-educated populace. This approach would provide federal accountability while retaining the beneficial aspects of state and local control.
Ultimately, what we are calling for is a long-overdue restructuring of education federalism to establish an effective partnership of the federal, state, and local governments to advance equal access to an excellent education. Education federalism has served as a consistent roadblock to federal efforts to remove barriers to equal educational opportunities for low-income and minority students. The oft-praised benefits of state and local control—experimentation, innovation, and competition for excellence—have failed to eliminate the substandard schools that many children attend. Instead, trumpeting the importance of state and local control has too often served as a vehicle for those privileged by the current education system to maintain their advantage and avoid accountability for effectively educating all children.
Education federalism has already undergone a tremendous evolution since the Brown decision and its progeny and passage of the Elementary and Secondary Education Act of 1965 (ESEA). Successive reauthorizations of ESEA have revealed the need for federal accountability to incentivize states and localities to enact K–12 education reforms. Even the Every Student Succeeds Act, the law’s 2015 iteration, which reduces the federal role in school accountability, still insists that state and local governments focus attention on the lowest-performing schools. This demonstrates Congress’s continuing concern that states and localities often do not intervene in ways that can break long-standing cycles of low graduation rates and lagging achievement.
Undoubtedly, the litigation we envision will impose costs on the federal, state, and local governments. Yet the United States already bears costs from our broken education system, including higher crime rates, additional expenses for health-care and public-assistance programs, and lost tax revenue as well as the untold costs of telling generations of children in chronically under-resourced, low-performing schools: “You don’t matter!” As states receive the message that they must provide equal access to an excellent education, the litigation costs will subside while the benefits to our nation will continue to accrue and multiply for generations.
Recognition of a federal constitutional right to education will provide us with a clear path to excellent and equitable schools. Just as the court declared an end to separate but equal in Brown v. Board of Education, the court must also declare an end to a third-world education for some and a world-class education for others by overturning Rodriguez. Our national commitment to equal opportunity and a just society demands no less.
This is part of a forum on the San Antonio Independent School District v. Rodriguez. For an alternate view, see “Federal Courts Can’t Solve Our Education Ills,” by Alfred A. Lindseth, Rocco E. Testani, and Lee A. Peifer.
Since 1976, over forty percent of prisoners executed in American jails have been African American or Hispanic. This trend shows little evidence of diminishing, and follows a larger pattern of the violent criminalization of African American populations that has marked the country's history of punishment.
In a bold attempt to tackle the looming question of how and why the connection between race and the death penalty has been so strong throughout American history, Ogletree and Sarat headline an interdisciplinary cast of experts in reflecting on this disturbing issue. Insightful original essays approach the topic from legal, historical, cultural, and social science perspectives to show the ways that the death penalty is racialized, the places in the death penalty process where race makes a difference, and the ways that meanings of race in the United States are constructed in and through our practices of capital punishment.
From Lynch Mobs to the Killing State not only uncovers the ways that race influences capital punishment, but also attempts to situate the linkage between race and the death penalty in the history of this country, in particular the history of lynching. In its probing examination of how and why the connection between race and the death penalty has been so strong throughout American history, this book forces us to consider how the death penalty gives meaning to race as well as why the racialization of the death penalty is uniquely American.
“Expertly dissects the racist underpinnings of capital punishment while pushing some intellectual boundaries.”
—International Socialist Review
“The authors give the nation an unflinching view of the shameful influence of racism in death penalty cases. This is a must read for anyone who cares about fairness in application of the death penalty and respect for the rule of law in our modern society.”
—Senator Edward M. Kennedy
“Ogeltree and Sarat combine the most severe criminal punishment with the bugaboo of racial class and prejudice in their book From Lynch Mobs to the Killing State. The professors astutely note that the death penalty is often used as a club to keep poor and desperate minorities in line in the larger white society.”
—Black Issues Book Review
“Professors Charles Ogletree and Austin Sarat gather an impressive lineup between racial politics in America and the killing of African-Americans.”
—Harvard Law Review
“An elegant compendium of essays written by sociologists, historians, criminologists, and lawyers. The essays starkly reveal how this country’s death penalty has its roots in lynchings, and how it operates to sustain a racist agenda.”
—The Federal Lawyer