The Evolving Right to an
Education in the United States
William S. Koski
Professor of Law and Professor of Education
Stanford University, California, U.S.A.
Legal Norms: Ensuring the Right to an Education
Oslo, Norway
April 26 & 27, 2012
Today, education is perhaps the most
important function of state and local
governments. . . . . It is the very foundation
of good citizenship. Today it is a principal
instrument in awakening the child to
cultural values, in preparing him for later
professional training, and in helping him to
adjust normally to his environment. In
these days, it is doubtful that any child may
reasonably be expected to succeed in life if
he is denied the opportunity of an
education. Such an opportunity, where the
state has undertaken to provide it, is a right
which must be made available to all on
equal terms.
-Brown v. Board of Education (1954)
Overview
1.
The law’s struggle with the meaning of equality
of educational opportunity among diverse
groups
a.
b.
2.
From racial equality to resource equality to the
qualitative right to an educational
a.
b.
3.
The meaning of Brown v. Board of Education
Equality of educational opportunity for diverse groups
The concept of equality of educational opportunity
The three “waves” of educational finance reform
litigation
The future of educational rights litigation
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The law’s struggle with the meaning of equality of
educational opportunity among diverse groups


Brown, racial equality, and schools
Equality of educational opportunity for
diverse others
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The “Separate, but equal” era
(1849-1954)

Roberts v. City of Boston (Mass.1849)



“Separate, but substantially equal”
Plessy v. Ferguson (U.S. S.Ct. 1895)
Efforts to enforce “separate, but equal”

Cummings v. Richmond Board of Education
(U.S. S.Ct.1899)
 NAACP Campaign (primarily graduate and
professional schools)
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The meaning of Brown v. Board
of Education



Anti-subordination rationale
Anti-classification rationale
The centrality of education rationale
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Implementing Brown





1954-1966: Massive Resistance
1964 Civil Rights Act
1965: Elementary and Secondary
Education Act, Title I
Green (1968): Affirmative integration
(Atlanta, Georgia)
Swann (1971): Busing (Charlotte, North
Carolina)
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Implementing Brown (Part II)

The Dayton and Columbus, Ohio cases

De jure vs. de facto segregation

Keyes (1973): Latinos and proving
segregative intent (Denver, Colorado)

Milliken I (1974) and Milliken II (1977)
(Detroit, Michigan): De facto segregation
and educational resource remedies
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The resegregation era

Board of Education of Oklahoma City v.
Dowell (1991) (Oklahoma City, Oklahoma)


Freeman v. Pitts (1992)


Compliance with the Green factors
Good faith efforts and temporary/partial
compliance
Missouri v. Jenkins (1995) (Kansas City,
Missouri)

Educational outcomes don’t matter
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“Second Generation” Discrimination


Discriminatory effects
Policy areas

Tracking and course assignment
 School discipline
 High-stakes testing
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Still separate




Desegregation of black students, which had
increased from the 1950s to the late 1980s, has now
receded to levels not seen in three decades
Whites are the most segregated racial group –
somewhat less in the South and West than the
Northeast and Midwest
A rise of what Harvard Civil Rights Project calls
“apartheid schools” – all-white schools
Latinos are the most segregated minority group
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Still unequal (ctd.)


Black-white, Latino-white achievement gap, though
having closed somewhat over recent decades,
remains wide
Replicated in graduation rates: HCRP/Urban Institute
Study using 2001 data



Only 50% of all black students; 51% of Native American; and
53% of Hispanic students graduated from high school within
four years
Black, Native American, and Hispanic males fare even
worse: 43%; 47%; and 48%, respectively
Compares to about 75% of all white high school students
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Equality for other groups


Women and Girls (Title IX of the ESEA)
English Language Learners
Lau v. Nichols (1974): “Affirmative steps”
 Castenada v. Pickard: (5th Cir. 1981)



Children with Disabilities (Section 504 &
Individuals with Disabilities Education Act)
Lesbian, Gay, Bisexual, Transgender
Youth
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From race to resources:
Educational finance litigation
and the qualitative right to an
education
The Evolving Right to an Education in the United States
The political, legal, and scholarly roots of
educational resource litigation

The dissatisfaction with desegregation
Perceived “failure”
 White flight, busing’s backlash, and the Black
Community




Coons, Clune & Sugarman, Private Wealth
and Public Education (1971)
Arthur Wise, Rich Schools, Poor Schools
(1968)
Poll taxes, prisoners’ rights, and Brown
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Equality of Educational Opportunity:
Educational Resource Distribution Principles


The distributional object: What should be
equalized?
The distributional principles: How should
we distribute the distributional objects?
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Equality of Educational
Opportunity: The Theories
Distributional object
 Inputs (money and the things
money can buy)
 Processes (curriculum,
tracking)
 Outcomes (attainment,
achievement)
Distributional principle
 Adequacy
 Horizontal equity
 Vertical equity
 Weak humane
 Strong humane
 Neutrality
 Arbitrary characteristics
 Proposition 1/fiscal
neutrality
 Merit?
 Effort?
The Evolving Right to an Education in the United States
Some history of school finance in
the U.S.

Local property taxes as primary funding source




Why?
State funding: virtually none until the early 1900s
Federal funding: none until the 1960s categorical programs
(still only 7-8%)
The states’ role in funding: StrayerHaig/Foundation Plans


Per pupil
per classroom

Categorical funding
 Debt financing
 Private contributions to public education
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The three “waves” of litigation

The First Wave (~1971-1973)



The Second Wave (1973-1989)



Federal Equal Protection
The “equity” standard
State Equality Provisions and Educ. Articles
The “equity” standard
The Third Wave (1989-present)

State Education Articles
 The “adequacy” standard
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The “First Wave” Legal Theories

Strict scrutiny analysis
 Education as a “fundamental right”



Brown’s language
The importance of education to the exercise of other
fundamental rights such as the right to vote and
freedom of expression
Poverty as a “suspect class”


Indigent prisoner cases
Poll tax cases
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The First Wave (~1971-1973)

The legal hook: Equal Protection Clause

The early federal cases: needs-based standard

Serrano v. Priest (California Supreme Court)
 Education as a fundamental right
 Fiscal neutrality standard

Rodriguez (U.S. Supreme Court):
 No fundamental right to an education
 Poverty not a suspect classification
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The Second Wave (1973-1989)

Robinson v. Cahill: State Education Articles

What do state constitutions have to say about education?
 Textual bases
 Establish a system of public schools
 Some quality characteristic like “thorough,” “efficient,” or “uniform”
 A high level of quality: “paramount duty,” “excellent”
 Does it matter what the constitution says?

Serrano v. Priest (revisited): State Equality Provisions

The evidence of inequity: how do we establish a violation of the
constitutional principles?


Statistical analyses
Qualitative comparisons

The litigation strategy (Ford Foundation)

Plaintiffs’ record: 7-15
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The Problems with Equity and
Equal Protection




The hallowed status of “local control”
Does money matter?
 Education production function literature
 Battle of experts
What is equality of educational opportunity?
 Fiscal equity
 Fiscal neutrality
 Student needs
Political backlash to “Robin Hood” schemes and “leveling
down”
 Buse v. Smith: the “negative aid” districts
 California
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The qualitative right to an education: the
modern “adequacy litigation movement




The concept of adequacy
Politically acceptable: who could be
against a “sound, basic education” for all
kids?
Grounded in the constitutional text
Clarity that equity lacked?
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The Third Wave (1989-Present)



Rose v. Council for Better Education (Kentucky 1989)
The educational policy climate: standards-based reform
and accountability
The Adequacy Standard




Vague and broad: civic and economic
Specific, though abstract capacities
Dovetail with standards-based reform and accountability
The evidence of inadequacy


Outcomes: achievement (proficiency, state comparisons)
Meeting state-established standards
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The challenges of adequacy

The judiciary as educational policy-maker




More clarity?





Institutional limitations of the judiciary
Tied to the constitutional text
Politically agreed-upon outcomes
Outcomes (achievement, proficiencies)?
Inputs and the uncertain technology of education
Minimums vs. high expectations
The bottomless pit of leaving no child behind
Should we be decoupling the rich from the poor?
The tenacity of equity.
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Robles-Wong v. California




The context
The parties
The theory
The status
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Where are we headed?

Standards-based reform and adequacy (OTL)
 Educational accountability and efficiency
 Discrete educational resource litigation

California cases
 Teacher quality as a right
 Early childhood education as a right

Vouchers and choice as a remedy
 Inter-state, intra-state/inter-district, and intradistrict inequality
 Courts getting fatigued?
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