Inhibiting intrastate inequalities: a congressional approach to ensuring equal opportunity to finance public education.

• Author: Arocho, Joshua

The United States has exhibited a strong commitment to public education throughout its history. The local control of education long associated with the United States' federal system, however, has led to extreme inequalities in education finance within states. This reality, held constitutionally permissible by the Supreme Court in San Antonio Independent School District v. Rodriguez, is a product of heavy reliance on local property taxation as a means to fund schools. Although levying property taxes is a permissible state action to promote local control of education, its unaltered use is archaic and ultimately detrimental due to the United States' growing income gap and corresponding wealth segregation in the housing markets. Because federal and state court litigation has produced an intractable and inequitable split in education policy that remains unsolved by current federal- and state-led initiatives, this Note argues that a conditional congressional grant of funds would serve as a new, more politically feasible solution to this problem. By making federal funding under the next reauthorization of the No Child Left Behind Act contingent on states' adoption of new school finance systems, particularly the Guaranteed Tax Base, Congress can encourage states to give all communities an equal opportunity to finance a high-quality education for their students, regardless of the value of their taxable property.

TABLE OF CONTENTS INTRODUCTION I. RODRIGUEZ AND THE STATES' DIFFERING CONCEPTIONS OF EDUCATIONAL EQUALITY A. Rodriguez and Its Aftermath B. The Failures of State Court Litigation and State-Based Legislation II. NATIONWIDE ATTEMPTS TO ADDRESS EDUCATIONAL INEQUALITY A. From Local Control to Federal Reform B. The Common Core State Standards Initiative Lacks the Resources Necessary to Address School Finance Inequities III. CONDITIONAL FEDERAL APPROPRIATIONS CAN HELP TO ERADICATE EDUCATIONAL INEQUALITY A. A Congressional Solution: Manipulating Local Property Taxation to Provide Equal Educational Opportunity B. Congressional Authority to Address School Finance. CONCLUSION APPENDIX A APPENDIX B INTRODUCTION

"Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." (1)

While this passage, unlike much of the Northwest Ordinance of 1787, did not end up in the Bill of Rights, (2) the United States nonetheless ascribes no small value to education: after all, there are more colleges and universities per capita in the United States than in any other developed nation. (3) Yet our commitment to education is not reflected in the structure of our public school financing. Unlike many developed nations, the United States has a decentralized primary and secondary education system that has led to fragmentation and inequality within and among states. (4) Unfortunately, the structure of the U.S. government does little to help the situation, as it defers to the states to create school finance policies.

The clash between federal and state education initiatives finds its roots in our federal system of government. The U.S. Constitution, via the Tenth Amendment, delegates the duty to regulate public education to the states. (5) In fact, every state in the union guarantees the right to an education in its constitution, though the education clauses vary greatly in length and clarity. (6)

Although states differ in their approaches to school finance, one source of funding has proved ubiquitous: local property taxation. (7) This system purportedly maintains local control over education, but as the income gap continues to grow, (8) funding schools with local property taxes has created severe disparities in per-pupil funding between high-property-value school districts and low-property-value school districts. (9) On its face, local property taxation seems to allow communities to fund their schools at whatever level they deem appropriate; even if a low-property-value district greatly values education and therefore imposes high taxes, however, the revenues of its higher property tax rate cannot match the revenues that many high-property-value districts can raise with lower tax rates. (10)

States have taken conflicting approaches in attempting to solve the issue of disparate funding between school districts. Some state legislatures, like New Jersey's, have sought to enact laws aimed at creating parity between district funding--a true attempt at equal education for all of their students. (11) Other states, however, have declared that education is not a fundamental right and continue to use the local property tax schemes that cause such great inequalities. (12) For example, in Lake County, Illinois, there remains an enormous disparity in per-pupil funding: in 2010, Rondout Elementary spent $24,244 per pupil, whereas Taft Elementary spent a mere $7,023. (13)

The assumption that schools that spend more money per pupil have parents who care more about education is invalid. The local control ideals behind property tax funding can give rise to the erroneous conclusion that the parents in Rondout's school district, for example, value education much more than the parents in Taft's school district. Proportionally, however, Rondout parents pay less in property taxes than do Taft parents. (14) Given the increasing income gap in the United States, (15) revenues raised via property taxation are no longer an accurate metric of a community's commitment to education. Perhaps this scheme accomplished its goal in the days where single-room schoolhouses were funded completely by homogenous communities of farmers, blacksmiths, and carpenters. But today vast discrepancies in personal wealth allow richer communities to shower their schools with resources unimaginable to schools serving low-income students--and they can do it at a much lower property tax rate. Parents in low-property-value school districts simply do not have the resources to match those of their high-property-value counterparts. (16) This antiquated funding scheme is no longer promoting local control over education; rather, it statutorily reinforces poverty by providing children in low-income families with fewer educational resources. As Cohen and Moffitt note, "[m]oney alone cannot cure [the] weak schools, but a chief source of academic weakness in these schools is the badly educated teachers and poor working conditions that inadequate revenues ... underwrite." (17)

Several reform efforts have attempted--and failed--to address these disparities. The struggle to eliminate such funding inequities faced its biggest legal setback in 1973, when the Supreme Court handed down its opinion in San Antonio Independent School District v. Rodriguez, (18) The Court held that funding education through local property taxes, despite the resultant disparities in per-pupil funding between neighboring school districts, did not violate the Equal Protection Clause of the Fourteenth Amendment because such funding was rationally related to the legitimate government interest of encouraging local control over education. (19) Rodriguez, though upholding the Texas law, left open the question of whether "some identifiable quantum of education is ... constitutionally protected." (20)

Nine years later, in Plyler v. Doe, the Court answered this question in the affirmative by invalidating a statute that completely denied public education to children of undocumented immigrants. (21) Writing for the majority, Justice Brennan (who wrote a bitter dissent in Rodriguez (22)) referred to these children as "victims" and argued that to deny them a basic education "imposes a lifetime hardship" and deprives them of the opportunity to "contribute in even the smallest way to the progress of our Nation." (23) While this case was a much-needed victory in federal court for proponents of educational opportunity, it set the standard for the right to education so low that it has proven unable to overcome the trend set by Rodriguez.

By largely foreclosing federal litigation as a means to secure greater educational equity, Rodriguez and Plyler have forced some reformers to seek redress in state court litigation on the one hand and in federal and state legislative reforms on the other. After these federal equal protection claims (known as the "first wave" of school finance lawsuits, (24) two new waves of litigation--equality challenges and adequacy challenges--surfaced in state courts. (25) These challenges are referred to as the second and third waves of school finance litigation, respectively. (26) Modern trends have shifted toward adequacy challenges, which argue that every student is entitled to a basic level of education. These challenges have generally been more successful than equality challenges, which aimed to secure equal funding for all schools. (27) Such second and third wave cases have taken place in forty-five of fifty states, and their mixed results have left poor students in certain states at a severe competitive disadvantage. (28) Looking to the future, some have proposed a "fourth wave" of education litigation comprising federal quality-of-education (adequacy) claims, (29) but this is unlikely to produce meaningful results due to the amorphous character of educational quality. Put simply, courts lack the requisite expertise to prescribe standards for education. (30) Without such knowledge, they can give only carte blanche authority to states to determine the meaning of "adequate education," which is the system under which we already operate. (31)

Perhaps noting the mixed results in seeking equity in inputs (i.e., school funding), the federal government has attempted to address educational inequities in outputs (i.e., student performance) through initiatives like the No Child Left Behind Act ("NCLB"). Although NCLB continued to partially offset funding differences in high- versus low-income schools--as did its...