‘Common Law’ S2 E4: When School Financing Hit the Courts
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‘Common Law’ S2 E4: When School Financing Hit the Courts

November 14, 2019


[MUSIC PLAYING] RISA GOLUBOFF: Hello, and
welcome back to Common Law, a podcast from the University
of Virginia School of Law. I’m Risa Goluboff, the dean. LESLIE KENDRICK: And I’m
Leslie Kendrick, the vice dean. As we’ve been talking about
in our first few episodes, this season is focused on
when law changed the world. Sometimes, that’s changing the
world for the better or worse, and sometimes, as
we’re learning, it’s about the road not taken. RISA GOLUBOFF:
That’s right, Leslie. And so far, we’ve looked at
a number of different turning points in American history
and in legal history, like how the nation
handled slaveholders’ land during and
after the Civil War, how the Supreme Court’s
views on civil rights and civil liberties
evolved after World War II, and even how lawyers
and activists played a role in anti-smoking efforts. LESLIE KENDRICK:
And in this episode, we’re narrowing the focus
down to a seminal case in Supreme Court history that’s
had a lasting impact on how Americans view and finance
K through 12 education. RISA GOLUBOFF: Now, this case
has been incredibly important, but not that many people have
heard about it compared to, say, Brown versus
Board of Education. So the case we’re
talking about today is called San Antonio
Independent School District v Rodriguez. What’s so fascinating
about this case, Leslie, is that even though it
was decided in 1973, which is a long time ago,
the same issues are very much still in play today– the roles of race, wealth,
and the federal government in primary and
secondary education. And here to talk
with us about it is UVA law professor
Kimberly Robinson, who has centered
much of her work around the repercussions
of this case. LESLIE KENDRICK: Kimberly’s
the co-editor of The Enduring Legacy of Rodriguez– Creating New Pathways to
Equal Educational Opportunity. She has a new book coming out
in December called A Federal Right to Education– Fundamental Questions
for Our Democracy. Kimberly, welcome to Common Law. KIMBERLY ROBINSON: Thank you. RISA GOLUBOFF: Thanks so much
for being here, Kimberly. So I thought, could
you start just by telling us about how this
case, Rodriguez, how it began. KIMBERLY ROBINSON: Sure. So the case began
with a parent who was concerned about the
education they were receiving in a district called Edgewood. And so in Edgewood, the district
was receiving less funding than a neighboring district
called Alamo Heights. So the parents got
together and said that this should be a violation
of the federal constitution, and we’re going to find a
lawyer to go to court about it. So they ultimately sued
the state of Texas, and argued that the
disparity in funding violated the federal
equal protection clause. RISA GOLUBOFF: So can
you give us a sense, like how big a gap was this? This is a big gap, right,
between the funding that they were receiving and the funding
that Alamo Heights district was receiving. KIMBERLY ROBINSON: Yes. So it was a substantial gap,
and it was a substantial gap because of how
schools are funded. So schools are funded, as
some people may not know, through largely property taxes. The local contribution is raised
when you tax local property. And so Edgewood had a fairly
low property tax base. Neighboring districts,
such as Alamo Heights, had a much higher
property tax base. And so even though
Edgewood would tax at a much higher rate,
they yielded significantly less for their schools. And so their schools were
significantly underfunded. RISA GOLUBOFF: And what were
the constitutional claims? KIMBERLY ROBINSON: So the
focus of the case was twofold. So first, they tried
to get the court to agree that
wealth is a suspect class under the equal
protection clause. And then second, they
argued that there is a fundamental
right to education. LESLIE KENDRICK: Can you say
a little bit more about wealth as a suspect class? What does it mean to
be a suspect class? KIMBERLY ROBINSON: So if
something is a suspect class– so for example, one of the most
well-recognized suspect classes is race. So generally, the
court will say, if you base a
decision on race, then a decision that the
government makes based on race is subject to something
called strict scrutiny. And what that means
is that’s just the highest level
of legal scrutiny that a court can give to
what the government is doing. You have to show that you
have a compelling government interest for taking action and
that the action is narrowly tailored to achieve that
compelling interest. And so it requires
the government to look for alternatives
to considering the suspect class to make sure
that they’re not unduly burdening particular groups. So there’s an entire
body of case law that focuses on what
strict scrutiny would mean. So what the families
in Edgewood wanted was for the disparities
based on wealth to get the court’s
highest scrutiny. RISA GOLUBOFF: And did the
court give it that scrutiny? KIMBERLY ROBINSON: It did not. The federal district
court ultimately did agree with the plaintiffs,
but the US Supreme Court did not, and rejected
wealth as a suspect class. RISA GOLUBOFF: And how did
that argument about the right to an education go? KIMBERLY ROBINSON:
So the lower court agreed that there is a
federal right to education. However, the United
States Supreme Court ultimately held that there
was not a federal right to education. RISA GOLUBOFF: And I mean, when
you think about a federal right to education, does the
federal Constitution say there is a right
to an education, or that’s located in the
equal protection clause? What did that argument look
like that they were trying to convince the court of? KIMBERLY ROBINSON:
So they were trying to convince the
court that there was an implied right to education. So the Constitution does
not mention education, and it does not include it as
a federal congressional power. So it is not one of
the enumerated powers. However, what the plaintiffs
were trying to convince the court was that there is a
fundamental right to education that is implied in the rights
to free speech and to vote. LESLIE KENDRICK:
So you mentioned that, after this case,
some of these questions do move to state courts. Tell us a little bit about
what the aftermath of Rodriguez looks like. KIMBERLY ROBINSON: So there’s
been what a lot of scholars call waves of litigation
after Rodriguez. So first, plaintiffs
continued to focus on funding disparities. And so they focused on
issues of one district having more funding
than another district. And those were
called equity cases. Generally, there were some of
those that were successful, but more often they
were not successful, in part because
the courts really struggled with how
much of a difference rises to the level of a
violation of the state constitution. Second, they started to
focus on state constitutions and adequacy litigation. And so adequacy
litigation says each child should get an education
to enable the child to achieve certain outcomes. And generally, those
outcomes were defined by state-developed standards. So those were the two types
of litigation that came out. Often, those cases and
theories of litigation were merged into
a single lawsuit. The adequacy suits were
far more successful than the ones that
emphasized equity. LESLIE KENDRICK: So
I’m just thinking, I grew up in Kentucky,
and around 1990 the Kentucky educational system
was declared unconstitutional under the state constitution. And you know, that was
a really big development within Kentucky. And I don’t know– you know, I wasn’t paying
attention at the time– I don’t know if that was an
equity suit or an adequacy suit, but it was certainly
a state constitutional suit that was about
funding disparities in my part of Kentucky,
in Eastern Kentucky, is very underserved area
with very low tax base, and that was quite different
from Lexington or Louisville or more developed areas. And the idea was to try to
provide more equalized funding. So I guess that was
one of those suits that happened while I was in school. KIMBERLY ROBINSON: Yeah, that’s
called the Rose decision. And actually, a number of
courts around the country copied that decision. So the court in Rose really gave
some very clear instructions about what education
should be provided to all students in
the state of Kentucky, and decided that the entire
system should be struck down and the legislature
should start again. LESLIE KENDRICK: So
from your standpoint as an educational expert,
those types of cases, have they made a big impact in terms
of the quality of education received? I’ve got to say, as a student,
I don’t know that I could feel that much difference from
eighth grade to ninth grade when this change
happened, but what’s the take from educational
experts on that litigation? KIMBERLY ROBINSON: So
it takes quite a while for the legislature to redesign
a system and then implement it. So it’s not the
kind of thing you’re going to see grade to grade. However, the consensus
is that litigation had a significant impact, but
it hasn’t ended the problem. Instead, what comes out in
litigation about school funding is that often the amount
of funding that’s provided is actually merely the product
of political bargaining. It is not about how much
it costs to educate kids successfully, it is
merely the amount in the budget that’s
available for education. And then the
lawmakers decide how to divide up that amount in the
budget between the districts. What the school funding
litigation forced lawmakers to do when courts would
order them to do so is to examine what does it cost
to educate children, and then design a funding system to
provide that amount of funding. So that was a
significant breakthrough. What hasn’t
happened, however, is that there is no uniform
mechanism in the country to address these disparities. And so you have
some states where there is a robust
right and other states where a child goes to
court and the court says, this is entirely at the
discretion of the legislature and we won’t interfere. RISA GOLUBOFF: And is that
distinction because some states have a right to education
in the constitution and others don’t, or
they all have them but, for some, it’s clearer
what the constitution requires? Or is it about the
political will? You know, where does that
variety of state responses come from? KIMBERLY ROBINSON:
So the variety is really not in the
state constitutions because all the
states guarantees some form of education. The adjectives that are used in
the state constitutions vary. So some say thorough
and efficient, some say high-quality. But it’s in the state
constitution at some point. What differs is how the
Supreme Court in each state defines it, and
defines those terms. So some courts will find
thorough and efficient to mean a robust system of
education, and others will say thorough and
efficient is whatever the legislature says it is. And so you get a wide
variety of rulings on what the exact terms mean. LESLIE KENDRICK: So you’re
suggesting this patchwork state approach has not really solved
the problem for certain states where this challenge hasn’t
been taken up, but even in states where it
has been something that courts have dealt
with, it’s not really completely fixed the problem. And your forthcoming
book is called A Federal Right to Education, so I
wonder if you could say more about what you think
the next steps are and how a federal
right to education might figure in those. KIMBERLY ROBINSON: Sure. So litigants basically who
have been in state court have decided that
state court is not going to get them to the
results that they want. So we’ve had decades of
litigation since Rodriguez where states are not
fully implementing what state constitutions
seem to guarantee. And so scholars
since Rodriguez have been arguing that
there should be a federal right to education. However, now we have
litigation actually back in federal
court where litigants are saying we can’t get
relief in state court, so we have to go back
to federal court. So there are several
theories that are being put forth
in federal courts, but the basic idea is that
every child in the United States should have some basic guarantee
of a high-quality education. LESLIE KENDRICK: With the
folks who are bringing suits in courts– and I understand
that there are a variety of different pending suits in
federal courts at this point– what’s the strategy with
regard to Rodriguez? Is this a strategy
that ultimately will require the Supreme
Court to overrule Rodriguez to go forward, or are
these claims that somehow try to work around Rodriguez? And what do you forecast
or predict about this? KIMBERLY ROBINSON:
So mostly the cases try to work around Rodriguez. They don’t generally
ask a federal court to overturn a case. First of all, they know
that only the Supreme Court can do that,
but second, it’s very hard to get the Supreme
Court to overturn itself. And so they come up
with different theories for what a federal
right should guarantee. So for example, there’s
litigation in Detroit that says that children have a
fundamental right to literacy. And so they explain what that
right to literacy would entail, and that the children
in Detroit are not being granted that education. So that doesn’t
require Rodriguez to be overruled, however, if
it reaches the Supreme Court, the Supreme Court
will likely speak to whether Rodriguez should
be reaffirmed or overturned. LESLIE KENDRICK: Do you see
that as a potential risk of this strategy? Are there folks who are worried
about this issue coming back to the Supreme Court? KIMBERLY ROBINSON: There
is quite a bit of concern. So when the
litigation was begun, the assumption was that
there would be a President Clinton in the White House, and
that the court would look very different than it does now. And so there is some divide
within the litigation community about taking this issue
to the Supreme Court and doing some damage by
reaffirming Rodriguez, rather than waiting for a
more opportune time before the court. However, there
are some litigants who I’ve talked to who say it
can’t get worse than it is now. We have a broken
education system. If the court merely says we’re
willing to continue to tolerate a broken education
system, then we know where the court
stands on this. But some are optimistic that
even a conservative court will say the disparities and
low quality of education that we have in some of
our nation’s schools fall below some
constitutional minimum. Research is very clear
that low-income children need additional resources to
compete on a level playing field with their
more affluent peers. And so the fact that
we have a majority of the state either giving the
same funding or less funding suggests that we definitely
have a broken system. So we only have about 11
states who give at least 5% more funding to high-poverty
districts, whereas 17 states give less and
20 give about the same. RISA GOLUBOFF: That’s why
that the need for additional resources in low-income
school districts is– my sense– you correct
me if I’m wrong– is why people talk in
education about equity rather than equality. Can you say a little bit
about those two terms? KIMBERLY ROBINSON: Absolutely. So equal educational
opportunities sort of used to be the phrase
that was floated around in terms of ensuring that
all children get access to the school building. So equal educational
opportunity was sort of born when we were focused
on there being white schools and black schools. However, once you began to open
the schoolhouse doors, what we began to see is that, even
if you were in the same school building, you were not getting
equal educational opportunity. So we developed
second-tier systems of segregation such as tracking,
where you would have children in the same building,
but they were getting very disparate
education opportunities. And because of
white flight, we now have districts in
the same state where children are getting
very different education opportunities. And so the goal of equity is
to ensure that students who need additional
resources receive it, as opposed to equality, which
says that we all give children the same thing. LESLIE KENDRICK: So your policy
proposals focus on Congress, but your approach is one that’s
slightly more incremental. Could you say a little
bit more about how that works in practice,
and how it might lead us toward educational equity? KIMBERLY ROBINSON: Sure. So I actually think
that the court could have a significant role
in addressing these issues. However, I think
Congress has been overlooked as an actor who
could move these issues forward. So the incremental
approach that I recommend is that we look at how to define
a federal right to education, and then have initially a pilot
program and then a program tied to Title I, which is funding for
low-income children, that would sort of test out the best
model for a federal right to education, the idea being
that, in education, you have this wide array of actors
who are all kind of trying to run the education system. And because of the complex
nature of the system, you don’t want to simply
come in with a mandate that can end up having adverse
and negative incentives. And so the goal that I
put forward in my work is that the federal
government should step in with kind of an
incremental approach that builds on the laboratory
of the states as partners to design what every
child in the United States should be entitled to. And then once we build some
national consensus about that, then adopting legislation
that would embrace a definition that has
been tested, in some way, in the states. And so this would help
to get buy-in, help to build political
will, because it’s something that’s
done incrementally as opposed to No Child
Left Behind, which was this dramatic increase
in the federal role without a lot of
research and testing behind the components
of the law itself. And so we had a big backlash
against the federal government being involved in
education because there were so many mistakes
and errors in the law. RISA GOLUBOFF: So
it’s incremental, it’s collaborative, and
it’s evidence-based. KIMBERLY ROBINSON: Yes. LESLIE KENDRICK: And can you
tell us a little bit more about what it would
actually look like? So there’s a pilot
program, and would there be kind of different conceptions
of a right to education being tested in different
localities or states, or how would that work? How would there be a kind
of organically developed conception of a
right of education? KIMBERLY ROBINSON: So it
could work in several ways. So one, there can be
several federal definitions that are being tested. Two, states could suggest
that their definition actually is the one that should
be adopted in broader jurisdictions, and sort of
showing how our definition is meeting the needs of
disadvantaged students, disabled students,
English language learners, sort of ensuring that the
diverse array of students in the state are
achieving at high levels. And so the idea
would be we are going to look at how our
education model in our state is functioning in
ways that addresses the needs of all
students, and we think that this model
would be one that would work in other states. LESLIE KENDRICK: So picking
up on whatever successes there have been through
a state-based model and trying to box those out
a little bit, to broaden them and to expand their reach. KIMBERLY ROBINSON: Yes, exactly. So encouraging other
states to consider adopting models that have been
successful in other states. So that’s certainly
one way to do it. So you would have
basically federal funding to incentivize states
to adopt this model. So states don’t like changing
their school funding models. A lot of times in
litigation, it will come out that this legislature hasn’t
revisited the model in decades. And so part of what we
need are federal incentives to say let’s take a fresh
look at school funding and think about
how to change it. RISA GOLUBOFF: So if
we’re almost 50 years from Rodriguez, what’s
your prediction, you know, how much
longer is it going to take until you’re satisfied
or there’s a sort of consensus that most American
children, regardless of income, regardless
of where they live, are getting an education
that they should be getting, that they’re entitled to? KIMBERLY ROBINSON:
You know, honestly, I think it’s going to take a
fairly significant crisis in our country for people to
realize we need to invest more in education. In other words, as we
see our education system in rankings sort of
slip further and further behind other developed nations,
as we perhaps experience further economic recession and
we look at the causes of that, that we haven’t educated our
children well to fill jobs that are existing and that are
being developed that require strong background in STEM
and other important skills, then I think we’ll realize,
oh, the ways that we neglected education actually
have some significant impact. Part of the problem with why
we don’t get education reform is people think about
education reform as affecting other
people’s children. In other words, the people in
power, many times lawmakers, middle class and
upper class families don’t immediately
feel the effect of having really poorly
funded schools for low-income and minority communities. However, I think that
there is a reckoning that will start to occur
and that we’re already feeling, in many ways. So we pay for it in our
criminal justice system, we pay for it in additional
health care costs, we pay for it in additional
social welfare programs. And I think the more that we
start to bear those costs, the more people will
start to see that, OK, we could have
invested x in education, but now we’re having
to invest x times 5 into the criminal justice
system because we didn’t have a good education system. So I think it’s partly just
understanding that we have to address this broken system
or we’re– we’re going to pay for it at the beginning or
we’re going to pay for it later in life. So I don’t know how
long that will take, but certainly I think
we’re long overdue for a national
conversation about it. RISA GOLUBOFF: Thank you
for having that conversation with us here today, Kimberly. KIMBERLY ROBINSON:
Thanks for having me. [MUSIC PLAYING] RISA GOLUBOFF: So I was struck
by Kimberly’s discussion of how the court was so different
than they thought it might be during the
Clinton administration, when they thought they
might have a friendly court. And she didn’t have a
chance to get into this, but that was actually the
case with Rodriguez itself. So before the plaintiffs
took the case to the court in the late 1960s, the Supreme
Court was the Warren Court. It was among the most
progressive courts the country has ever known. And they had actually
been thinking quite a lot about the
rights of poor people and whether there were
constitutional protections for the poor. And so when the plaintiffs
began this case, they thought they were likely to
find a favorable Supreme Court. But by the time they
got to the court, there were four new
appointees, and now it was the Burger Court,
not the Warren Court. But at the time, it was
considerably more conservative than the Warren Court had
been, and it kind of stopped short the experiments
that the Warren Court had been taking into
whether to protect the poor. LESLIE KENDRICK: That’s
really interesting. Those must have
been some wrenching strategic conversations
about how, or if at all, to try to change
course when you think this is different from how
we thought it was going to be when we started this. RISA GOLUBOFF: And even though
I think the Burger Court was not uniformly conservative
in all respects, San Antonio v Rodriguez
is often cited as the case not only that ends the idea of
a federal constitutional right to education, which is what
Kimberly’s mostly interested in, but also the
case that is kind of the death knell for
constitutional protections for the poor. And there continue to be little
vestiges and ways in which they do continue to protect,
but for the most part, this is the case that
people take a standing for the end of that experiment. LESLIE KENDRICK: Which brings
it into your wheelhouse, and thinking about
equal protection and thinking about the
poor as a category that has major constitutional
resonance where we could have a
kind of civil rights jurisprudence around that. That’s not the direction
we end up going. RISA GOLUBOFF: It’s not. And I think that the comment
that Kimberly made at the end is so important about how, a
lot of the time when people are thinking about education
reform or they’re thinking about a
right to an education, they’re imagining
someone else’s child, and that when people in
power don’t see themselves, they’re not necessarily
all that inclined to help. And in these cases,
I really do think they don’t see the
rights because they don’t see the rights holders. LESLIE KENDRICK: I
wonder if part of that also is about our
conception of rights as being so focused
on individual rights. I was struck by
Kimberly’s pointing out education is not just
an individual right, but a social good,
in various ways. And it seems as
though she’s pushing in a kind of
legislative direction where maybe we will
see more of an ability to recognize education as
something that’s not just a matter of individual
rights and claims, but also a matter
of social welfare and the appropriate
target for social policy. RISA GOLUBOFF: I
think that’s right, and I think it also
dovetails with another kind of social fact of our
constitutional jurisprudence, which is that we tend
to think that rights are negative rights. They are rights that individuals
have against the government. Don’t stop my speech, don’t
stop me from having an abortion, right, that whatever it is
that the government owes you, it’s to not do something to you. And there’s an
alternative conception of rights, which is the
government has duties to do certain things for you. And given, you know, the
enormous cost to education, it looks a lot like
a positive right. And what you’re
saying is, government, you have to provide me
with this good, you know, if it is a social good. The next correlation
is we often think, because we don’t conceive
of the Constitution as having positive rights,
that the legislature is the right institution,
the right body to be thinking about social
goods and positive rights, rather than having
courts enforce them through individual litigation. LESLIE KENDRICK: And I think
there is a way in which some of the cases that we’re talking
about and some of the stories we’re talking about this season
at once are reflections of this and also are part of the
development of our constitution and our conceptions of what
our constitution is and isn’t. So Rodriguez is a point
where maybe things could have looked different
from how they end up looking. And it shapes the conceptions
of constitutionalism that we have today. RISA GOLUBOFF: Absolutely. [MUSIC PLAYING] LESLIE KENDRICK: Well, that’s it
for this episode of Common Law. We hope you’ll join us next
time for more stories about when law changed the world. RISA GOLUBOFF: Our website
is commonlawpodcast.com. You can find all our
past episodes there, including last season’s shows
about the future of the law, plus plenty of background
information on all the topics we’ve been covering. And you can always tweet
at us at commonlawUVA. LESLIE KENDRICK: We’re taking
a break for a couple months as the holidays
commence, but we’ll be back for the second half
of our season in February with UVA Law professor
Frederick Schauer, who will discuss the famous freedom
of the press case New York Times versus Sullivan. FREDERICK SCHAUER:
The real goal here was to punish the New
York Times basically for representing northern Yankee
agitators who were criticizing the South, and just at
the beginning of that part of the civil rights era
that was characterized by marches, protests,
demonstrations, picketing, and the like. RISA GOLUBOFF: Common
Law comes to you from the University of
Virginia School of law. Today’s episode was
produced by Sydney Halleman, Robert Armengol, and Mary Wood,
with help from Virginia Kane. The show is recorded at
the studio of the Virginia Quarterly Review. I’m Risa Goluboff. LESLIE KENDRICK: And
I’m Leslie Kendrick. See you next time. [MUSIC PLAYING]

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