Much is being made this year in education law circles and elsewhere about the fiftieth anniversary of Brown v. Board of Education.' The Brown decision has certainly left an indelible mark on schools and other institutions in the United States. But last year the thirtieth anniversary of another major Supreme Court opinion passed largely without comment, despite the fact that it may be the most significant decision regarding public schools since Brown. In 1973, the U.S. Supreme Court, in San Antonio Independent School District v. Rodriguez, concluded that education was not a fundamental right and that disparities in school funding among school districts do not violate the federal constitution. The Court's decision in Rodriguez effectively closed the door on plaintiffs who wished to use the federal Constitution and the federal courts as a vehicle for achieving greater equity in school funding. Yet Justice Marshall, in his dissenting opinion in Rodriguez, noted that "nothing in the Court's decision today should inhibit further review of state educational funding schemes under state constitutional provisions.'
Battles over school funding have been waged on many fronts nationwide including efforts to influence public opinion and attempts to pass federal and state legislation. When these efforts fail to provide adequate remedies, funding equity advocates turn to litigation. Following Justice Marshall's cue, plaintiffs looked to state courts and state constitutions for school funding remedies.
The litigation that followed the Supreme Court of California's landmark school funding equity decision in Serrano v. Priest has touched every state to some degree, with most states experiencing full scale legal challenges to their systems of funding public schools. To date, the highest courts in thirty-six states have issued opinions on the merits of funding litigation suits, with nineteen courts upholding state funding systems and seventeen declaring the systems unconstitutional." Some states have experienced protracted serial litigation that has extended for decades. Litigation has been filed and is still pending in many more states.
This Article examines how the landscape of school funding litigation has changed over the three decades since Serrano and Rodriguez. The first part of the Article sets forth the history of school funding litigation since, Serrano and Rodriguez and unravels the legal theories that have driven the school financing cases, explaining past dispositions and pointing out likely future trends. At first blush it would appear that the attorneys seeking social change through greater equity in school funding are litigating similar issues in each state. Yet judges have approached these matters from different directions with results that vary significantly from state to state and from case to case. Plaintiffs have unveiled a number of legal theories based on a state constitution's equal protection clause or education clause. As the litigation has evolved over time, issues of equity in funding have given way to increased attention to funding adequacy and, more recently, accountability.
The second part of this Article examines the role of the courts in school funding litigation and analyzes the extent to which judges in these cases have become involved in matters that are traditionally left to the legislature and local control. School funding litigation raises some knotty issues when a court mandates specific remedies for funding inequities and expressly outlines what will constitute an adequate education under the relevant state's constitution. Some state courts have also been willing to "set the table" for funding plaintiffs, while other state courts have been more hesitant, deferring to the political process to resolve the funding inequities. This section will also explore the political issues that arise in school funding cases in which state judges, in contrast to federal judges, are subject to direct public opinion and majoritarian pressures - including popular elections, review by the electorate, and recall votes.
John Dayton and Anne Dupre,
School Funding Litigation: Who's Winning the War?,
57 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol57/iss6/8