On Equal Terms

The Constitutional Politics of Educational Opportunity

Douglas S. Reed

• Publisher: Princeton University Press
• Year: 2021
• ISBN:
  9780691227733
• Topic: Education
• Subtopic: Educational Policy

Since Brown v. Board of Education and the desegregation battles of the 1960s and 1970s, the legal pursuit of educational opportunity in the United States has been framed largely around race. But for nearly thirty years now, a less-noticed but controversial legal campaign has been afoot to equalize or improve the resources of poorly funded schools. This book examines both the consequences of efforts to use state constitutional provisions to reduce the "resource segregation" of American schools and the politics of the opposition to these decisions. On Equal Terms compares the relative success of school finance lawsuits to the project of school desegregation and explores how race and class present sharply different obstacles to courts. Since a 1973 U.S. Supreme Court decision that effectively deferred to the states in the matter of educational equity, about a third of state judiciaries have mandated reform of state-level educational funding systems. Douglas Reed analyzes both the rhetoric of reform and the varying effects of these controversial decisions while critiquing the courts' failure to more clearly define educational equity.
Well-written with keen insight throughout, the book concludes with an intriguing policy proposal that acknowledges obstacles to such efforts. This proposal aims to enhance education by fostering racial and economic integration locally. Setting the stage for a more coherent debate on this controversial issue and expanding our understanding of constitutional design, On Equal Terms will have far-reaching implications for law, public policy, politics, and not least, the future of American education.

PART I

RACE, CLASS, AND EDUCATIONAL OPPORTUNITY

1

COURTS AND EDUCATIONAL OPPORTUNITY: THE MOVEMENT FROM RACE TO CLASS

Learning to Divide: Race, Class, and Educational Disparities

ALTHOUGH POPULAR OPINION typically regards Brown and its progeny as a symbol of pride in American constitutionalism, the lived reality of school districts in the wake of court-ordered integration has failed to meet the promise of those early decisions. In major metropolitan areas, white flight to the suburbs—already apparent in the 1950s and 1960s—accelerated with court-ordered busing in the North in the early 1970s. With the rise of “chocolate cities and vanilla suburbs,” racial homogeneity of urban school districts increased (Farley et al. 1978). In his 1978 book on busing, Gary Orfield wrote that our nation’s pattern of fragmented metropolitan areas, combined with continuing residential segregation, made desegregation a difficult task: “The rapid departure of young white middle class families from the central cities, together with the plummeting birthrate, means that an increasing number of cities and some inner suburbs are left with few whites to integrate” (Orfield 1978, 55).

One initial response to this white flight was to include outlying suburbs within the desegregation remedy. In Detroit a federal judge ruled that fifty-three of eighty-five surrounding suburban districts were to be included within a desegregation plan that encompassed most of the Detroit metropolitan area. By designing a metropolitan-wide solution to the problem of interdistrict racial segregation, plaintiffs hoped to reincorporate the white students who had flown beyond the Detroit school district boundaries. The U.S. Supreme Court, however, put a stop to this interdistrict remedy in its 1974 Milliken v. Bradley decision.¹ Writing for a slim 5-4 majority, Chief Justice Warren Burger declared that only an interdistrict violation of constitutional rights could justify an interdistrict remedy. The Supreme Court found that a remedy could not be imposed on districts that had not actively segregated their own students. In construing the state-action requirement in this fashion, the Supreme Court ignored the growing reality of suburban-central-city segregation and left district court judges with few tools to integrate schools on a metropolitan-wide basis. As Stephen Halpern has written:

In America’s greatest cities, by the end of the decade in which the Court decided Milliken, even the limited educational goal that had emerged from the late 1960s—racial integration—was endangered. By 1980, in many of the nation’s largest cities, including New York, Los Angeles, Baltimore, Washington, D.C., and Chicago, whites represented a numerical minority of the total public school population and lived in highly segregated neighborhoods, raising serious impediments to achieving racial integration in schools. (Halpern 1995, 94)

This shifting demographic pattern of American cities emerged out of many factors, but the increasing prospects of residential and educational integration clearly played a role. The capacity of local officials to delay school desegregation, in both the North and the South, gave middle-class whites time and opportunity to abandon already shrinking central city school districts. Their departure changed not only the racial dynamics of public education, producing greater racial homogenization within school districts, but it changed the economic bases of education as well. Historically, poverty in America has been largely a rural phenomenon—and in many regions it still is. But the white middle-class abandonment of central cities in the post-World War II era, combined with a wrenching deindustrialization of American cities, helped created an urban poverty that is racially skewed. Declining property values, excess school capacity, and shrinking incomes of the remaining residents hit inner-city districts particularly hard, especially within the Northeast urban corridor. Although the picture was somewhat different in the West and South, because of growing urban populations and more expansive central-city boundaries, wherever multiple school districts existed within metropolitan areas, similar economic, if not racial, segregation occurred.

At about the same time as school desegregation suits turned northward, litigators in a number of areas began filing suits against the funding systems that states used to finance public education. These suits came out of a growing sense among civil rights lawyers that desegregation alone would not get to the heart of unequal educational opportunity. To the extent that blacks and other minorities were disproportionately poor, and to the extent that educational resources were most available to middle-class and upper-middle-class school districts, desegregation was not going to resolve the issues of profound educational disparities between whites and nonwhites. Also, growing frustration with white flight and the reluctance of middle-class whites to send their children to school with minority students led many activists to increasingly doubt the effectiveness of further desegregation efforts. Thus, both as part of the quest for greater educational opportunity and as part of a growing frustration with desegregation as a remedy for the educational inequalities suffered by blacks and other minorities, educational legal activists increasingly turned their attention to the financing disparities among school districts. As a result, lawsuits began to emerge that challenged the distribution of educational resources.²

These suits, arising first in California, Texas, and New Jersey, sought to fuse two significant elements of the Warren Courts political and jurisprudential commitments to equality. First, school finance litigators hoped to transform the Warren Court’s rulings on behalf of equal educational opportunity for blacks and whites into a broader commitment to equal resources for education. Second, they hoped to extend a series of Warren Court-era rulings that suggested class was a constitutionally impermissible basis for public policy. In earlier decisions such as Edwards v. California,³ the Supreme Court had suggested that the poor might merit special judicial protection because of their limited access to political channels. The Warren Court took that burden seriously, and in cases such as Griffin v. Illinois⁴ and Gideon v. Wainwright⁵ struck down the provision of rights according to wealth. The Warren Court was particularly responsive if a claimant’s indigence prevented the exercise or enjoyment of a fundamental right. In California the state supreme court applied precisely this reasoning in the 1971 school finance case Serrano v. Priest.⁶ In Serrano the California High Court declared that poverty was a suspect classification under the equal protection clause of the Fourteenth Amendment and that public education was a fundamental right under the U.S. Constitution. A few months later, a federal district court in Texas adopted that logic in Rodriguez v. San Antonio Independent School District.⁷ The U.S. Supreme Court accepted the Texas decision for review on appeal, and by 1973 the judicial stage was set for an important ruling by the Supreme Court on inequality in public school finance.

The Fundamental Lessons of Rodriguez

In retrospect, there were clear signs that the Supreme Court would not look too favorably on the lower court rulings on school finance coming out of Texas and California. Although the Warren Court’s aura of judicial activism still glowed, the Court was under increasing political pressure to scale back its agenda. Importantly, President Nixon had appointed three politically moderate or conservative judges in the early 1970s: Chief Justice Warren Burger and Associate Justices William Rehnquist and Lewis Powell. The Burger Court clearly consolidated a number of Warren Court doctrines—most notably within the area of school busing⁸ and the right to privacy,⁹ but the notion of poverty as a suspect classification under the Fourteenth Amendment was not among those consolidations. Indeed, in an early Burger Court decision, Dandridge v. Williams,¹⁰ Justice Potter Stewart explicitly chose not to construe Maryland’s limitation on welfare benefits to large families as a violation of constitutional rights. Instead, he viewed the regulation as simply one of any number of rational policies a state might employ in the administration of its social policies. This test, known as the rational basis test, simply requires that there be a logical nexus between the policy and a legitimate government interest.

With the Rodriguez case, the plaintiffs hoped that the important position of public education within American political and economic life would lead the Court to declare education a fundamental right, thereby forcing the Court to examine much more carefully any wealth-based discrimination in the provision of public education. Certainly, the Court’s position in Brown v. Board of Education supported the view that education was, implicitly at least, of central importance to governance and citizenship. After all, Chief Justice Earl Warren had written for a unanimous Court that “education is perhaps the most important function of state and local governments,” adding, a few lines later, that educational opportunity, “where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”¹¹ But what had been “the most important function of state and local governments” under the Warren Court in 1954 became somewhat less important under the Burger Court in 1973. This transformation of education’s centrality—combined with a reluctance to view wealth as a suspect classification—led the Supreme Court to deny, by a narrow 5-4 margin, the claims of Demetrio Rodriguez and his fellow plaintiffs. Instead, Justice Lewis Powell contended that a healthy respect for federalism and the importance of local control in educational financing virtually required the Supreme Court to find the admitted disparities as outside the Court’s purview.

The facts of Rodriguez are simple enough. The state of Texas funded its public schools as most states do, through a two-tiered system of local property taxes and state aid. The bulk of a district’s educational revenues came from local property taxes, which made the revenues highly dependent on the property wealth within the area. Districts with high property values could generate greater sums at lower tax rates than those with low property values. The mechanism for distributing state aid took these different capacities into account, but only to a very modest degree. As a result, districts across Texas allocated widely varying per pupil expenditures. The question before the Court was whether this two-tiered system generated inequalities prohibited by the Equal Protection Clause of the Fourteenth Amendment.

Justice Lewis Powell, writing for the majority, had to disengage two critical issues in Rodriguez from earlier Supreme Court rulings. First, the Brown decision strongly implied that education is a fundamental right in America. Second, if education is a fundamental right, then the line of wealth discrimination rulings suggested that wealth was a constitutionally suspect classification by which to distribute that right. Together, these two claims formed the foundation of the plaintiffs’ claims in Rodriguez.

Powell aimed first at the fundamental status of education. He wrote that “[T]he importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause” Powell further noted that “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.”¹² The Supreme Court’s retreat from the fundamental—or at least quasi-fundamental—status of education was, in itself, a marked departure from the normative commitments of the Warren Court. Next, Powell also engaged the question of whether the poor—as a class—are an identifiable minority whose interests ought to be safeguarded because they are particularly vulnerable to attack or neglect by the state.

Powell rejected the notion that the Fourteenth Amendment’s Equal Protection Clause requires the Court to regard poverty as a “suspect classification,” for two reasons. First, the Texas school children living in poor districts were not clearly definable as a class of “poor,” and second, they did not suffer “an absolute deprivation of the desired benefit.”¹³ In support of the first contention, the Court argued that it is not clear that poor school children—as measured by family income or per capita income—were clustered in poor districts, as measured by property wealth.¹⁴ Thus, according to Powell, it is hard to link the poverty of a district and its limited resources to the poverty of the individual students. The Court did not accept an implicit and important contention of the appellees: that land-poor districts contain cashpoor students.

Even if he had accepted this view, Powell’s second reason for rejecting the suspect status of a poverty classification would have prevented the Court from finding for Rodriguez. Powell wrote:

The argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer quality education than that available to children in districts having more assessable wealth. . . . [A] sufficient answer to appellees’ argument is that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.¹⁵

An absolute equality, Powell argues, cannot be obtained. Instead, the court can only ask if the education received in property-poor districts is “adequate.” The state of Texas argued that it was, and the Court agreed.

The claims made by Demetrio Rodriguez in San Antonio Independent School District v. Rodriguez provide an illuminating contrast to those made by Linda Bro...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Illustrations
• Acknowledgments
• Introduction
• Part I: Race, Class, and Educational Opportunity
• Part II: The Constitutional Ordering of Educational Opportunity
• Appendixes
• Notes
• Bibliography
• Index