1. 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

2. 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)

3. The Evolving Right to an Education in the United States Overview 1. The law’s struggle with the meaning of equality of educational opportunity among diverse groups a. The meaning of Brown v. Board of Education b. Equality of educational opportunity for diverse groups 2. From racial equality to resource equality to the qualitative right to an educational a. The concept of equality of educational opportunity b. The three “waves” of educational finance reform litigation 3. The future of educational rights litigation 3

4. 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 The Evolving Right to an Education in the United States 4

5. 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) The Evolving Right to an Education in the United States 5

6. The meaning of Brown v. Board of Education  Anti-subordination rationale  Anti-classification rationale  The centrality of education rationale The Evolving Right to an Education in the United States 6

7. 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) The Evolving Right to an Education in the United States 7

8. 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 The Evolving Right to an Education in the United States 8

9. The resegregation era  Board of Education of Oklahoma City v. Dowell (1991) (Oklahoma City, Oklahoma)  Compliance with the Green factors  Freeman v. Pitts (1992)  Good faith efforts and temporary/partial compliance  Missouri v. Jenkins (1995) (Kansas City, Missouri)  Educational outcomes don’t matter The Evolving Right to an Education in the United States 9

10. “Second Generation” Discrimination  Discriminatory effects  Policy areas  Tracking and course assignment  School discipline  High-stakes testing The Evolving Right to an Education in the United States 10

11. 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 The Evolving Right to an Education in the United States 11

12. 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 The Evolving Right to an Education in the United States 12

13. Equality for other groups  Women and Girls (Title IX of the ESEA)  English Language Learners  Lau v. Nichols (1974): “Affirmative steps”  Castenada v. Pickard: (5 th Cir. 1981)  Children with Disabilities (Section 504 & Individuals with Disabilities Education Act)  Lesbian, Gay, Bisexual, Transgender Youth The Evolving Right to an Education in the United States 13

14. The Evolving Right to an Education in the United States From race to resources: Educational finance litigation and the qualitative right to an education

15. 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 The Evolving Right to an Education in the United States 15

16. The Evolving Right to an Education in the United States 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? 16

17. The Evolving Right to an Education in the United States 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?

18. 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: Strayer- Haig/Foundation Plans  Per pupil  per classroom  Categorical funding  Debt financing  Private contributions to public education 18

19. The Evolving Right to an Education in the United States The three “waves” of litigation  The First Wave (~1971-1973)  Federal Equal Protection  The “equity” standard  The Second Wave (1973-1989)  State Equality Provisions and Educ. Articles  The “equity” standard  The Third Wave (1989-present)  State Education Articles  The “adequacy” standard 19

20. The Evolving Right to an Education in the United States 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 20

21. The Evolving Right to an Education in the United States 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 21

22. The Evolving Right to an Education in the United States 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 22

23. The Evolving Right to an Education in the United States 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 23

24. The Evolving Right to an Education in the United States 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? 24

25. The Evolving Right to an Education in the United States 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 25

26. The Evolving Right to an Education in the United States The challenges of adequacy  The judiciary as educational policy-maker  Institutional limitations of the judiciary  Tied to the constitutional text  Politically agreed-upon outcomes  More clarity?  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. 26

27. Robles-Wong v. California  The context  The parties  The theory  The status The Evolving Right to an Education in the United States 27

28. The Evolving Right to an Education in the United States 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 intra- district inequality  Courts getting fatigued? 28