Fulfilling the Promise Ofbrown: the Experiences of Lawyers Challenging State School-funding Systems

• Publication year: 2021
• Citation: Vol. 83

83 Nebraska L. Rev. 830. Fulfilling the Promise ofBrown: The Experiences of Lawyers Challenging State School-Funding Systems

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Gregory C. Malhoit*

Fulfilling the Promise of Brown: The Experiences of Lawyers Challenging State School-Funding Systems

A half-century ago, in Brown v. Board of Education of Topeka,(fn1) the Supreme Court struck down racially segregated schools, concluding that "equal protection" demands that states provide students with education on equal terms. While Brown focused attention on inequities caused by racial segregation of schools, it also implicitly raised questions about inequities in the way states fund public education. Since 1954, the constitutional commitment to "equal educational opportunity" has been the law of the land. In 1971, however, the Supreme Court in San Antonio v. Rodriguez,(fn2) determined that education is not a fundamental right under the U.S. Constitution, thereby leaving in place Texas's grossly inequitable school funding system.

The decision in Rodriguezdealt a severe blow to the movement for equal educational opportunity and paved the way for states to continue inequities in their education-funding systems. As a consequence, vast numbers of children in the United States suffered irrevocable educational harm as they were forced to attend schools that lacked qualified teachers, did not offer students a high-quality

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curriculum, or failed to support classrooms that were safe or conducive to learning. Advocates for "equal educational opportunity," nevertheless, persevered. Relying on provisions in state constitutions, they shifted their focus away from federal courts and concentrated their efforts on state courts. Across the country during the last thirty-five years, lawsuits have been brought in forty-five states seeking reform in the way schools are funded. This litigation met with considerable success, and as courts struck down state education-funding systems, two key concepts in education funding were defined: (1) schools must be funded equitably and (2) schools must be funded at an adequate or sufficient level.

Cases based on the concept of "educational equity" argued that large disparities in the amount of per-pupil funding for schools, caused by states' over-reliance on local property taxes to pay for education, were unconstitutional under equal protection principles. Several courts ruled in favor of the plaintiffs, and, as a result of these decisions, states reduced the funding gap between rich and poor school districts.

In contrast, "educational adequacy" argues that even if states reduce variations in spending among school districts, the State also is responsible for providing sufficient funding for schools to offer all students a quality education. The language about education found in state constitutions, along with educational goals and requirements set by state legislatures, have been interpreted by state courts to...