Unlocking the power of state constitutions with equal protection: the first step toward education as a federally protected right.

• Author: Black, Derek W.

ABSTRACT

This Article analyzes the intersection of state constitutional law with federal equal protection, revealing how federal equal protection, by relying on state constitutional education standards, can force states to further equalize and increase the resources available to struggling schools. It begins by exploring the extent of inequality and inadequacy in our public schools and the remedies that are necessary to address them. State-based litigation has produced gains in these areas, but lingering problems persist. Scholars have proposed several measures to address these problems, but most require either extraordinary changes at the federal level or modest changes that would do little to guarantee results. This Article proposes a middle road that builds upon the successes in state courts but makes the changes in state law relevant to federal litigation and enforcement. Of course, the traditional obstacle to such proposals has been the Supreme Court's holding in San Antonio Independent School District v. Rodriguez, but this Article demonstrates a strategy that would not require the Supreme Court to overturn its precedent but simply apply equal protection in a manner that accounts for developments in state law. In particular, this Article posits that an educational revolution in the states has fundamentally changed the nature of the education right at stake and the responsibility for enforcing it. Thus, the scrutiny of this right under federal equal protection would be far different than it was just a few decades ago. Given the states' weakened ability to enforce these rights, the future of education equity depends on federal intervention.

TABLE OF CONTENTS INTRODUCTION I. THE PERSISTENCE OF AND RESPONSE TO SCHOOL RESOURCE INEQUITIES A. School Inequities and the Importance of Resources and Money B. Past Strategies To Remedy School Inequity C. The Successes, Failures, and Continuing Efficacy of State-Based Litigation II. THE CONTINUING SEARCH FOR A SOLUTION A. Delivering a Meaningful Opportunity To Learn for All B. Proposed Strategies for Increasing Opportunities 1. Federal Constitutional Strategies 2. Federal Legislative Strategies 3. Non-Federal/Continued State Strategies C. Limitations of the Proposed Strategies III. THE MIDDLE ROAD: GUARANTEEING QUALITATIVE STATE STANDARDS THROUGH FEDERAL EQUAL PROTECTION A. The Intersection of State Constitutional Law and Federal Equal Protection B. The Changed Legal and Factual Environment 1. The Educational Interest at Stake 2. Qualitative Educational Judgments 3. Local Control and Legislative Purposes 4. Federalism C. The Option Rodriguez Left Open D. What Scrutiny Applies? 1. Strict Scrutiny Versus Heightened Scrutiny 2. The Practical Effect of Heightened Versus Strict Scrutiny in Education CONCLUSION INTRODUCTION

At the turn of this century, elected officials, educational administrators, and advocates began to characterize education as the civil rights issue of our generation. (1) This notion even seemed to stretch across party affiliation. On the floor of the 2008 Republican Presidential Convention, John McCain stated that "education is the civil rights issue of this century." (2) Attempting to expand this concept and transform it into reality, advocates and administrators have stated the matter affirmatively, declaring that "[e]ducation is a civil right" that entitles students to quality instruction and resources. (3) In fact, Arne Duncan and the past three Secretaries of the U.S. Department of Education have echoed this declaration. (4) The declaration may seem unremarkable to many Americans because they assume that education is a constitutional or civil right protected by the federal government. (5) Unfortunately, this is not our current reality.

Advocates have consistently attempted to engage the federal government and federal courts on the need for substantive education rights, (6) but neither have ever recognized education as a civil, fundamental, or constitutional right. (7) In 1954, the Supreme Court characterized education as a benefit that the state could choose to offer or not. (8) Thus, the state had no affirmative obligation in education. Likewise, in 1973, the Court indicated that although education is important, it is but "a service performed by the State," (9) the importance of which does not determine whether it must be "afforded explicit protection under the federal constitution." (10) Education was a gratuitous service akin to transportation, health care, and housing, which the state was free to degrade, upgrade, or eliminate, so long as its decision was not based on racial discrimination or some other prohibited motivation. Even as late as 1991, former Chief Justice Warren Burger characterized education as merely "a statutory right" and emphasized that this statutory right was actually a sign of progress given the previous legal status of education. (11)

Based on this precedent and perception, advocates have abandoned federal litigation as a strategy for improving educational quality and equity. (12) This Article posits that the time has finally come to revisit a federal strategy. Various scholars have posed theories by which the federal courts could intervene in these matters, (13) but all have been largely premised on overturning San Antonio Independent School District v. Rodriguez, in which the Court held that education is not a fundamental right under the Federal Constitution. (14) Given the Supreme Court's current composition and general legal trends, a direct repudiation of Rodriguez is unlikely. (15) Other scholars have posed federal legislative agendas, but legislation alone cannot guarantee long term assurance of educational funding, equity, and quality. (16) Rather, mere legislation would leave education subject to the same political pressures that plague it now. Moreover, passing new legislation, or even a constitutional amendment, would require far more political will and public outrage than what seems to currently exist. (17)

This Article demonstrates that neither sweeping legislation nor an explicit reversal of Rodriguez is necessary. Rather, federal courts are in the position to intervene without any change in constitutional law or enactment of new legislation. The states have already made the necessary changes. However, many national advocates and scholars fail to account for the educational revolution in the states, focusing instead on federal law. In the years following Rodriguez, and the last two decades in particular, state constitutions and supreme courts have recognized education as a constitutional and/or fundamental right with substantive dimensions. (18) Moreover, states have expanded their statutory structures beyond simply compelling students to attend school. They now also guarantee students a particular curriculum and a level of quality therein. (19) When Rodriguez was decided, none of this had occurred. The Court was evaluating what appeared to be a mere gratuitous state benefit.

While a state may have the discretion to permit numerous inequities in gratuitous public benefits, a state does not have discretion to afford some citizens full access to a state constitutional right while denying it to others. Federal equal protection would heavily scrutinize inequities in state constitutional rights. Because education was but a basic public benefit with no substantive content, the Court in Rodriguez had no standards by which to evaluate education and, in any event, was unwilling to evaluate it closely. (20) Today education is a fully evolved state constitutional right. (21) Thus, the Court's analysis of that right would be far different. Unless it was simply blind to these changes, the Court could not permit many of the vast disparities and inadequacies that continue to persist.

This strategy would not render education the federal fundamental right that some seek. Nor would it obligate the federal government to provide additional funding or raise the quality of education beyond the level to which a state has already committed itself. But unlike other theories, this Article's strategy is immediately within advocates' reach. Moreover, although it would not inherently bring federal dollars to schools, it would bring federal enforcement power to schools. (22) Additional federal involvement in and responsibility for education would also provide the practical and theoretical basis for eventually recognizing education as a fundamental right. Without these incremental steps, there is little sign of achieving full recognition of educational rights at the federal level. (23)

For these same reasons, federal equal protection has the capacity to produce some results that have escaped litigation in state courts. Not only does the federal government inherently have larger enforcement capacity, its involvement could resolve the problems that have stymied some state litigation, such as separation of powers tensions between state courts and state legislatures (24) or judicial elections that cause state courts to reverse or retreat from earlier decisions. (25) Most important, there are troubling signs that state courts may be reaching their exhaustion point and need assistance.

School finance, adequacy, and inequity cannot be resolved in a single case or year. Equity and adequacy in one year does not ensure the same the following year. Lasting success requires yearly evaluations and continued commitment as legislatures pass new budgets and schools develop different needs. The inherent nature of litigation, both state and federal, is to resolve a finite issue and terminate. Neither litigants nor courts are designed to be perpetual monitors. (26) Yet state constitutional cases have asked this of courts. The most successful of all has been in New Jersey, which for thirty-six years has continually forced the state to meet students' needs. (27) However, this past year, for the first time, the Supreme Court of New Jersey held...