The fourth wave of education finance litigation: Pursuing a federal right to an adequate education

Cornell Law Review

Volumn 95, Issue 5, 2010, Pages 989-1020

  Gillespief, Lauren Nicole ^a  

^a MIT Sloan School of Management   (United States)

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EID: 77955535253     PISSN: 00108847     EISSN: None     Source Type: Journal    
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References (240)

1. Brown v. Bd. of Educ. (Brown I), 347 U.S. 483, 493 (1954).
2. For example, in East St. Louis, Illinois, Martin Luther King Junior High School is located downwind from one of the nation's largest hazardous-waste- incineration companies. Students have been forced repeatedly to evacuate after sewage lines back-up and flood the food-preparation area and gymnasium. In an effort to save costs, the school has hired seventy "permanent substitute teachers," each earning $10,000 per year. Arguably worse than the conditions in East St. Louis is the close proximity of this school district to the affluent public school systems in Fairview Heights. There, students benefit from modern science labs, playgrounds, and libraries. For an in-depth description of the conditions in the nation's poorest school districts.
3. see Jonathan Kozol, Savage Inequalities: Children in America's Schools (1991).
4. See Quentin A. Palfrey, The State Judiciary's Role in Fulfilling Brown's Promise, 8 Mich. J. Race & L. 1, 7 & n.23 (2002) (referencing information from the U.S. Census Bureau about federal funding for the 1998-1999 school year).
5. Basing public school funding largely on local property taxes originated when the United States had an agricultural economy and rural population. The application of this property-based finance model to today's urban society creates substantial education-funding disparities.
6. See Penny L. Howell & Barbara B. Miller, Sources of Funding for Schools, 7 The Future of Children: Financing Schools, at 39, 41 (Winter 1997);
7. Michael A. Rebel), Poverty, "Meaningful" Educational Opportunity, and the Necessary Role of the Courts, 85 N.C. L. Rev. 1467, 1478 (2007). For an in-depth explanation of the variety of public school finance systems states may adopt, see Howell & Miller, supra, at 39.
8. Although Tide I of the Elementary and Secondary Education Act provides grants for educational and secondary programs for children of low-income families, the dollar amounts are low relative to the overall cost of public education. Title I allocates funds depending in large part upon the number and concentration of poor children in the state's school districts and the average per-pupil expenditure in the state. In light of the focus on existing per-pupil spending, Tide I funding. "causes the existing pattern of interstate inequality in education spending to be reproduced."
9. Goodwin Liu, Interstate Inequality in Educational Opportunity, 81 N.Y.U. L. Rev. 2044, 2095 (2006).
10. 411 U.S. 1 (1973).
11. For purposes of this Note, I accept that the money school districts gain through successful school finance litigation will improve the quality of education they provide. However, there is contentious debate as to whether increasing monetary inputs improves student achievement. This discussion arose following James S. Coleman's 1966 study on education equality in the United States. The report, "Equality of Educational Opportunity," referred to today as the "Coleman Report," found that student achievement is not highly correlated with per-pupil spending alone, but rather is a function of various inputs, particularly socioeconomic status and student background.
12. James S. Coleman et al., U.S. Dep't of Health, Educ, & Welfare, Equality of Educational Opportunity, 302-304, (1966)
13. Michael Heise, Educational Adequacy as Legal Theory: Implications from Equal Educational Opportunity Doctrine 8-10 (Cornell Law Sch. Legal Studies Research Paper Series, Paper No. 05-028, (2005), available at http://ssrn.com/abstract=815665 (summarizing the debate over the unclear relationship between educational resources and student achievement).
14. For a study criticizing the belief that "money matters," see Eric Hanushek et al., Making Schools Work: Improving Performance and Controlling Costs (1994).
15. For a discussion supporting the benefits of increased funding, see Ronald F. Ferguson, Paying for Public Education: New Evidence on How and Why Money Matters, 28 Harv. J. on Legis. 465, 488 (1991).
16. See Michael Heise, State Constitutions, School Finance Litigation, and the "Third Wave": From Equity to Adequacy, 68 Temp. L. Rev. 1151, 1153-1154 (1995).
17. See Peter Enrich, Leaving Equality Behind: New Directions in School Finance Reform, 48 Vand. L. Rev. 101, 116 (1995).
18. See Michael A. Rebell, Educational Adequacy, Democracy, and the Courts, in Achieving Hich Educational Standards for All: Conference Summary 218, 221 (Timothy Ready et al. eds., 2002), available at http://www.schoolfunding.info/ resource-center/research/adequacychapter.pdf.
19. See Douglas v. California, 372 U.S. 353, 357-358 (1963) (holding that the right to appeal cannot be blocked by inability to pay for appellate representation).
20. See Enrich, supra note 9, at 117-118
21. See id. at 118.
22. However, Enrich goes on to note that there are significant differences between the forms of wealth-based discrimination the Court struck down and the wealth-based inequality in education finance. In cases like Douglas, the wealth-based deprivation was a result of the individual's personal financial circumstances, and the deprivation was an absolute, not relative, deprivation of the opportunity at issue.
23. See id. at 119.
24. See, e.g., Reynolds v. Sims, 377 U.S. 533, 568 (1964) (holding that the Equal Protection Clause requires "substantially equal state legislative representation for all citizens" in a state, regardless of where they reside)
25. Baker V. Carr, 369 U.S. 186, 237 (1962) (holding that whether a Tennessee reapportionment statute unconstitutionally violated the plaintiffs' right to equal protection was a justiciable question).
26. See Enrich, supra note 9, at 119-120 (noting that in one education funding challenge, the court characterized the plaintiffs argument as "'[o]ne scholar, one dollar'" (quoting Spano v. Bd. of Educ, 328 N.Y.S.2d 229, 235 (N.Y. Sup. Ct. 1972))).
27. See Paul A. Minorini & Stephen D. Sugarman, Educational Adequacy and the Courts: The Promise and Problems of Moving to a New Paradigm, in Equity and Adequacy in Education Finance: Issues and Perspectives 175, 179-185 (Helen F. Ladd et al. eds., 1999).
28. See John E. Coons et al., Private Wealth and Public Education 159, 201-203 (1970).
29. See Minorini & Sugarman, supra note 16, at 181.
30. See 411 U.S. 1 (1973).
31. See Rebell, supra note 10, at 221-225
32. See Rodriguez, 411 U.S. at 11-14 (noting that the average assessed property value per pupil in Edgewood was $5,960 whereas the average assessed property value per pupil in Alamo Heights exceeded $49,000).
33. See id. at 16
34. Heise, supra note 8, at 1155-1156
35. See Rodriguez, 411 U.S. at 35.
36. See id. at 16
37. (quoting Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp. 280, 284 (W.D. Tex. 1971)).
38. Id. at 23; Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp.
39. supra note 10, at 222, Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp.
40. See Rodriguez, 411 U.S. at 28.
41. See id. at 20-23
42. (describing prior cases in which the Court struck down state laws that denied indigent criminal defendants the right to a transcript or the right to court- appointed counsel and in which a substantial filing fee for primary elections was invalidated). The Court distinguished the facts in Rodriguez from its prior holdings by stating: "The individuals, or groups of individuals, who constituted the class discriminated against i our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit."
43. Id at 20.
44. See id. at 33-35.
45. Id. at 30.
46. Id. at 36-38.
47. Id. at 36.
48. Id. at 47-49.
49. Id. at 50-51
50. (citing McGowan v. Maryland, 366 U.S. 420, 425-426 (1961)).
51. See Justin J. Sayfie, Comment, Education Emancipation for Inner City Students: A New Legal Paradigm for Achieving Equality of Educational Opportunity, 48 U. Miami L. Rev. 913, 921-922 (1994).
52. See Rodriguez, 411 U.S. at 36.
53. Id. at 37.
54. 457 U.S. 202 (1982).
55. See id. at 223-224
56. See id. at 230
57. Daniel S. Greenspahn, A Constitutional Right to Learn: The Uncertain Allure of Making a Federal Case out of Education, 59 S.C. L. Rev. 755, 769 (2008) (stating that the Plyler Court applied a heightened form of scrutiny that it developed further in later years).
58. See Plyler, 457 U.S. at 221-222
59. See 478 U.S. 265, 285 (1986) ("As Rodriguez and Plyler indicate, this Court has not yet definitively settled the questions whether a minimally adequate education is a fundamental right and whether a statute alleged to discriminatorily infringe that right should be accorded heightened equal protection review.").
60. See Enrich, supra note 9, at 105 ("[M]ost state constitutions contain one or more provisions that either parallel the federal Equal Protection Clause or have been interpreted to impose substantially the same limitations.").
61. See id. at 105-106 Education clauses impose a duty on states to provide a form of public education. Gershon Ratner describes these education clauses as falling into four basic groups.
62. G.M. Ratner, A new legal duty for urban public schools: Effective education in basic skills, 63 Tex. L. Rev., 777, 815, 143-46, 1985.
63. First are education clauses containing only general education language, like the provision of the Connecticut Constitution that guarantees "free public elementary and secondary schools in the state." Conn. Const, art VIII, § 1. Second are education clauses that specify the quality of public education that the state will provide. For example, the New Jersey Constitution provides for a "thorough and efficient system of free public schools." N.J. Const, art VIII, § 4. Third are those education clauses that contain a more specific mandate, like the Rhode Island Constitution's requirement that the legislature "adopt all means which it may deem necessary and proper to secure ⋯ the advantages ⋯ of education." R.I. Const, art XII, § 1. Finally, the fourth category consists of those education clauses that provide for the strongest commitment to public education. For example, the Washington Constitution states, "It is the paramount duty of the state to make ample provision for the education of all children residing within its borders." Wash. Const, art. IX, § 1.
64. See Palfrey, supra note 3, at 16-17. Where the plaintiffs relied either in full or in part upon the state constitution's education clause, they argued that the education clause itself demanded that the state provide substantially equal educational opportunities for poor and wealthy school districts.
65. John C. Eastman, Reinterpreting the Education Clauses in State Constitutions, in School Money Trials: The Legal Pursuit of Educational Adequacy, 55, 55-56 (Martin R. West & Paul E. Peterson eds. 2007) (criticizing state courts that find a new fundamental right to an adequate education based on the education clauses in state constitutions).
66. See Serrano v. Priest (Serrano I), 487 P.2d 1241, 1255-1259 (Cal. 1971).
67. See id.
68. J. Banks, Note state constitutional analyses of public school finance reform cases: Myth or methodology?, 45 Vand. L. Rev., 129, 143-144, 1992, (noting the court's emphasis on the "indispensible role of education in a modern industrial society").
69. See Serrano I, 487 P.2d at 1250, 1258.
70. See id. at 1258.
71. See id. at 1259-60.
72. Heise, supra note 8, at 1155.
73. See Serrano v. Priest (Serrano II), 557 P.2d 929, 935-37 (Cal. 1976) (summarizing the legislation the California legislature passed in light of Serrano I, Senate Bill No.90 and Assembly Bill No. 1267).
74. See id. at 929.
75. See id. at 952
76. Banks, supra note 46, at 143.
77. See Serrano II, 557 P.2d at 953, 968-969 ("The system in question⋯ suffer[s] from the same basic shortcomings as that system which was alleged to exist in the original complaint-to wit, it allows the availability of educational opportunity to vary as a function of the assessed valuation per (average daily attendance] of taxable property within a given district.").
78. See id. at 957-958
79. See Rebell, supra note 10, at 226.
80. See Id. The Texas legislature implemented this type of redistributive plan after the Texas Supreme Court struck down its earlier efforts to implement less drastic reform. See Edgewood Indep. Sch. Dist v. Kirby (Edgewood II), 804 S.W.2d 491, 496 (Tex. 1991);
81. Car-rollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist. (Edgewood III), 826 S.W.2d 489, 514 (Tex. 1992). Referred to as the "Robin Hood" plan, the financing scheme capped each school district's taxable property at $280,000 per student. The plan permitted any revenues collected in excess of the cap to be redistributed to poorer districts.
82. Edgewood Indep. Sch. Dist. v. Meno (Edgewood IV) 917 S.W.2d 717 728 (Tex. 1995). The constitutionality of the Robin Hood system was upheld after it was challenged on the basis of the Texas Constitution's requirement that the state provide "an efficient system" of public schools.
83. See id. at 725 (internal quotations omitted). However, such success was short lived. In Neeley v. West Orange-Cove Consolidated Independent School District, the Texas Supreme Court found that the education finance system was an unconstitutional ad valorem tax.
84. See 176 S.W.3d 746, 797-98 (Tex. 2005). The history of education Finance litigation in Texas illustrates many of the difficulties state legislatures face when creating a plan that is both constitutional and politically tenable. For a summary of Texas's education finance litigation history since Rodriguez.
85. see Angela Marie Shimek, Comment, The Road Not Taken: The Next Step for Texas Education Finance, 9 Scholar 531, 538-544 (2007).
86. See Rebell, supra note 10, at 226-27. In California, the trial judge in Serrano II held that interdistrict funding disparities must be reduced to insignificant amounts, defined as "considerably less than $100.00 dollars per pupil." Serrano II, 557 P.2d at 940 n.21. However, California voters followed this judicial mandate with Proposition 13, a popular initiative that amended the state constitution to cap increases in local property taxes. The effect of the equalization mandate and property cap was a leveling down of California's education expenditures. During the 1964-1965 school year, California ranked fifth in the nation in per-pupil spending, but by the 1994-1995 school year, the state had dropped to forty-second.
87. See Rebell, supra note 10, at 227.
88. See Rebell, supra note 10, at 227. In Lujan v. Colorado State Board of Education, the Colorado Supreme Court determined that neither low-income people nor low-income school districts qualified as a suspect class.
89. See Banks, supra note 46, at 134-135 The court rejected the possibility of low-income school districts constituting a suspect class by finding that because its terms embodied only personal rights, the state equal protection clause applied only to individuals.
90. Lujan v. Colo. State Bd. of Educ, 649 P.2d, 1005, 1020 (Col. 1982) (citing Shelley v. Kraemer, 334 U.S. 1, 22 (1948)). The court further found that low- income people were insufficiently distinct and insular to satisfy the requirements of equal protection analysis. Poor persons lacked common attributes or characteristics, and the plaintiff failed to demonstrate that the group was centered in low-wealth property districts. The court viewed poor persons as an amorphous group that historically has not been subject to purposefully unequal treatment.
91. See id. at 1020-22. Even equality arguments grounded in both the equal protection and education clauses of the state constitution failed. In Olsen v. State, the Oregon Supreme Court upheld the state's school finance system.
92. See 554 P.2d 139, 149 (Or. 1976). The Oregon Constitution guaranteed a "uniform, and general" system of schools. Or. Const, art. VIII, § 3. There, rather than deciding whether the state's education clause elevated education to the status of a fundamental right, the court used a balancing test, weighing the impact on the interest in educational opportunity against the state's justification for its financing system.
93. See Olsen 554 At Reviewing Substantial Evidence About The Deficient Educational Opportunities In Poor Districts 145. Court Found That The State'S Interest In Local Control Justified These Disparities T.
94. See id. at 145-149
95. See Rebell, supra note 10, at 227.
96. See Enrich, supra note 9, at 154-155.
97. See id. at 165-66
98. see also James E. Ryan, A Constitutional Right to Preschool?, 94 Cal. L. Rev., 49, 69-84, (2006) (arguing for a constitutional right to preschool based on state constitutions' education clauses as supported by education finance adequacy litigation).
99. See Martin R. West & Paul E. Peterson, The Adequacy Lawsuit: A Critical Appraisal, in School Money Trials: The Legal Pursuit of Educational Adequacy, supra note 44, at 1, 2-6 (graphing the number of states in which a court rendered a final judgment in an education finance case on equity or adequacy grounds and comparing the outcomes in equity versus adequacy cases);
100. see also Michael A. Rebell & Jessica R. Wolff, Campaign for Educ. Equity, Litigation and Education Reform: The History and the Promise of the Education Adequacy Movement 8, (2006), available at http://www.schoolfunding. info/resource-center/adequacy-history.pdf (noting that adequacy plaintiffs have prevailed in twenty-one of twenty-eight major education funding decisions by states' highest courts).
101. But see Richard Briffault, Adding Adequacy to Equity, in School Money Trials: The Legal Pursuit of Educational Adequacy supra note 44, at 25, 26-27 (discussing the overlap between equity and adequacy and the difficulty of classifying a case as exclusively adequacy or equity based).
102. See Rebell & Wolff, supra note 62, at 4. Arguably the most conspicuous study was the National Commission on Excellence in Education's 1983 report entitled A Nation at Risk
103. Carr M.C., Fuhrman S.H. The Politics of School Finance in the 1990s, in Equity and Adequacy in Education Finance: Issues and Perspectives 147, 136 1989.
104. See Rebell & Wolff, supra note 62, at 4.
105. See Rebell, supra note 10, at 229.
106. See id.
107. See James E. Ryan, Standards, Testing, and School Finance Litigation, 86 Tex. L. Rev. 1223, 1227-1239 (2008) (discussing the relationship between the creation of academic standards and school finance litigation and criticizing litigants' reliance on testing and failure to adopt a comparative perspective).
108. See 790 S.W.2d 186 (Ky. 1989).
109. Heise, supra note 8, at 1163.
110. See id.
111. See Rose, 790 S.W.2d at 214.
112. Id. at 212. This detailed definition of an adequate education was the result of substantial dialogue between the Kentucky Supreme Court, the public, and the standards- based education reform movement In crafting it, the Kentucky Supreme Court heard extensive expert testimony and read an extensive post-trial brief filed by a citizens' education advocacy group. In fact, after issuing his liability decision, the trial judge withheld his remedy decision for six months. During that time, a special committee held five hearings across the state and enumerated five outcomes that it perceived as an adequate education. The trial court largely adopted the committee's findings, with the Kentucky Supreme Court including the key findings in its final decision.
113. See Rose, 790 S.W.2d at 215-216 (further holding that the legislature must monitor the state education system to prevent waste or mismanagement);
114. Rebell, supra note 10, at 235.
115. See McDuffy v. Sec'y of the Executive Office of Educ, 615 N.E.2d 516, 554 (Mass. 1993);
116. Claremont Sch. Dist v. Governor, 703 A.2d 1353, 1359 (N.H. 1997).
117. See, e.g., Unified Sch. Dist. No.229 v. State, 885 P.2d 1170, 1186 (Kan. 1994) (noting the striking resemblance between Rose's definition of an adequate education and the standards that the Kansas legislature subsequendy adopted); Claremont, 703 A.2d at 1359-1360 (rejecting an adequacy definition promulgated by the state education department and advising that the department look to the seven specific criteria from Rose as guidance)
118. Leandro v. State, 488 S.E.2d 249, 255 (N.C. 1997) (citing Rose and defining a "sound basic education" in terms of four basic skills that schools must develop in students).
119. See Frederick M. Hess, Adequacy Judgments and School Reform, in School Money Trials: The Legal Pursuit of Educational Adequacy, supra note 44, at 159, 160. For an example of how this precise concern played out in California, see supra note 57.
120. See Enrich, supra note 9, at 168-169 (acknowledging that although the reality of achieving adequacy may in fact be a redistribution of resources, the focus on betterment rather than competition among the districts nevertheless makes affluent districts more tolerant of adequacy arguments).
121. See id. at 167.
122. See id. at 169-170
123. See id. at 170.
124. See id.
125. Michael Heise, Litigated Learning and the Limits of Law, 57 Vand. L. Rev. 2417, 2440 (2004).
126. See Palfrey, supra note 3, at 13.
127. Ryan, supra note 61, at 75 ("[T]he underlying rights in [adequacy cases] need not be defined solely in terms of money.⋯ [F]unding remedies do not exhaust the scope of the underlying rights at stake in school finance cases.").
128. See Minorini & Sugarman, supra note 16, at 183-184
129. See Palfrey, supra note 3, at 13.
130. See Coons et al., supra note 17, at 317.
131. 20 U.S.C §§ 6301-7941 (2006).
132. See Rebell, supra note 10, at 224.
133. See Mclnnis v. Shapiro, 293 F. Supp. 327, 330-331 (N.D. 111. 1968) (involving a state funding system that provided each student with a minimum foundation financing level of $400);
134. Rebell, supra note 10, at 228.
135. See McLinnis, 293 F. Supp. at 335-336
136. See id., Mclnnis , 293 F. Supp., 331-336.
137. The plaintiffs offered two possible solutions: first, that all students across the state receive the same dollar appropriation; or second, that the state eliminate all variations in local property values but continue to allow districts to set their own tax rates.
138. See id at 331-32.
139. Rebell, supra note 10, at 224-225.
140. Mclnnis v. Ogilvie, 394 U.S. 322 (1969).
141. See Rebell, supra note 10, at 225.
142. See id. at 221-224
143. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 56 (1973).
144. See id. at 43, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S.
145. B. Levin, The courts, congress, and educational adequacy: The equal protection predicament, 39 Md. L. ev., 187, 190, (1979), ("The Supreme Court's reluctance to find that education is a fundamental right entided to special protection was at least in part due to the Court's fear that there are no judicially manageable standards for determining what amount of education is constitutionally guaranteed.").
146. See Rebell & Wolff, supra note 62, at 10-11.
147. See id. at 10.
148. As Michael Rebell and Jessica Wolff explain, "[t]here is widespread agreement that an adequate system of education is one that 'will equip students for their roles as citizens and enable them to succeed economically and personally.
149. Id. at 11
150. Vincent v. Voight, 614 N.W.2d 388, 396, (Wis.2000)
151. See supra notes 73-74 and accompanying text.
152. See Rebell & Wolff, supra note 62, at 11 (giving the full consensus definition of an adequate education).
153. See id. at 11 n.49 (quoting seven state courts' definitions of an adequate education).
154. See id. at 14
155. (describing state adequacy cases as the best current example of Justice Brandeis's formulation of federalism in which states serve as " 'laboratories'" for innovation in public policy).
156. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 55 (1973) (stating that the alternatives to Texas's funding scheme were "only recently conceived and nowhere yet tested").
157. See David J. Hoff, Federal Law Bolsters Case for Aid Suits: Experts Warn States of Greater Exposure, Educ. Week, Oct. 1, 2003, at 1.
158. See 20 U.S.C. § 6301 (2006).
159. See James S. Liebman & Charles F. Sabel, The Federal No Child Left Behind Act and the Post-Desegregation Civil Rights Agenda, 81 N.C. L. Rev. 1703, 1706 (2003) (noting that because NCLB contains no enforcement mechanisms, courts will be forced to generate judicially manageable standards, the absence of which had previously prevented courts from desegregating public schools).
160. See Kimberly A. Murakami, Annotation, Construction and Application of No Child Left Behind Act, Pub. L. No.107-110, 115 Stat. 1425 (2002) (Codified at 20 U.S.C.A. §§ 6301 et seq.), 4 A.L.R. Fed. 2d 103 (2005).
161. On March 13, 2010, Present Barack Obama announced that he would send an "education blueprint" to Congress. This education-reform proposal seeks to change and strengthen many aspects of NCLB-such as rewarding the academic growth of students rather than continuing the current Act's pass-fail system-while retaining some aspects of the federal law, such as required annual reading and math tests. One of the proposed changes includes evaluating schools' success in narrowing the achievement gap between affluent and poor students.
162. Sam Dillon, Obama Proposes Sweeping Change in Education Law: Readiness for College; Continued Testing, but Less Interference for Well- Run Schools, N.Y. Times, Mar., 14, 2010, at Al.
163. See Michael Salerno, Note, Reading is Fundamental: Why the No Child Left Behind Act Necessitates Recognition of a Fundamental Right to Education, 5 Cardozo Pub. L. Pol'y & Ethics J. 509, 536-37 (2007) (quoting 20 U.S.C. § 6319(b)(3)(C)).
164. (quoting 20 U.S.C. § 6319(b)(3)(C)
165. See Rebell, supra note 4, at 1489.
166. See Salerno, supra note 106, at 536-537 (quoting 20 U.S.C. § 6319(a)).
167. See Hoff, supra note 102. Present Obama's proposal for revising NCLB would require states to create rating systems for teachers and principals based largely on their students' performance. Currently, many school districts do not have the capacity to do so, but if such studies were required, these ratings would provide additional data upon which a court could evaluate the adequacy of the education a school district provides to its students.
168. Editorial Afr., Obama and No Child Left Behind, N.Y. Times, Mar., 18, 2010, at A24.
169. This discussion of No Child Left Behind is, of course, not a suggestion that the congressional statute define the substance of the constitutional right to an adequate education. C.f. City of Boerne v. Flores, 521 U.S. 507, 519-520 (1997) (holding that Congress cannot define by statute the content of a constitutional right). Nonetheless, federal courts in search of judicially manageable standards can refer to No Child Left Behind in deciding the contours of the right.
170. See Sayfie, supra note 34, at 933 (describing the Court's past decisions as focusing on educational ends-such as the amount of knowledge the student obtained, rather than upon education means, such as the amount of money spent or the types of programs implemented-and characterizing this as an "educational-attainment context").
171. 347 U.S. 483 (1954) (Brown I).
172. 339 U.S. 629 (1950).
173. H3 Id. at 633-634
174. Brown I, 347 U.S. at 494.
175. See Rebell, supra note 4, at 1493-1494
176. 414 U.S. 563 (1974).
177. See Rebell, supra note 4, at 1496.
178. Lau, 414 U.S. at 566.
179. See Sayfie, supra note 34, at 933.
180. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 30-31, 35-36 (1973).
181. Rodriguez, 411 U.S. at 49.
182. (quoting Wright v. Council of Emporia, 407 U.S. 451, 478 (1972) (Burger, C.J., dissenting)).
183. The Court also expressed the magnitude of the federalism principles the case put at stake: "While '[t]he maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which this Court examines state action,' it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State."
184. Id. at 44
185. Allied Stores of Ohio v. Bowers, 358 U.S., 522, 532, 1959, (Brennan.J., concurring)).
186. U.S.C. § 1400 et seq. (2006).
187. See Salerno, supra note 106, at 538-39. Although technically any state is free to ignore NCLB if it is willing to forgo federal education funding, this possibility is not a reality because public schools are fiscally dependent upon federal assistance. See id. at 538. President Obama's education initiative "Race to the Top" further increases federal involvement in education. For states that undertake drastic school improvement initiatives, the program rewards those who apply and whose proposal is rated most highly with federal grants totaling nearly four billion dollars. During the first round of competition, Delaware was awarded $100 million of federal grant money and Tennessee was awarded about $500 million. Secretary of Education Arne Duncan plans to divide the remaining $3.4 billion among the second-round winners. President Obama has requested an additional $1.3 billion to extend the competition for 2011.
188. Sam Dillon, Delaware and Tennessee Win U.S. School Grants, N.Y. Times, Mar., 30, 2010, at A15.
189. See supra notes 104-109 and accompanying text.
190. 20 U.S.C. § 1412(a)(1), (4).
191. see also Ann K. Wooster, Annotation, What Constitutes Services that Must Be Provided by Federally Assisted Schools Under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C.A. §§ 1400 et seq.;, 161 A.L.R. Fed. 1 (2000).
192. Id. § 1401(9), (14), (29)
193. Remarks on Submitting the Education Reform Plan to the Congress, 1 Pub. Papers 11, 12 (Jan. 23, 2001)
194. see Salerno, supra note 106, at 539
195. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 58 (1973) (describing the "wisdom of the traditional limitations on this Court's function").
196. Id. at 42., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S.
197. See 20 U.S.C. § 1415(a), (i)(l)-(2);
198. Rebell, supra note 4, at 1534.
199. See 550 U.S. 516, 527-528 (2007) (citing 20 U.S.C. § 1415(a)).
200. See Rodriguez, 411 U.S. at 37.
201. See Greenspahn, supra note 39, at 771 (noting that some commentators have distinguished education from other benefits because it is the only government benefit for which attendance is compelled).
202. Id.
203. 457 U.S. 202, 221 (1982).
204. 515 S.E.2d 535 (S.C. 1999).
205. 406 U.S. 715 (1972).
206. See generally Susan H. Bitensky, Theoretical Foundations for a Right to Education Under the U.S. Constitution: A Beginning to the End of the National Education Crisis, 86 Nw. U. L. Rev. 550, 553 (1992) (analyzing a right to education under substantive due process, the First Amendment, the right to vote, and the Privileges and Immunities Clause, and providing principles of constitutional construction that further support a positive right to education derived from international agreements, the Ninth Amendment, international human rights law, and historical evidence of original intent);
207. Goodwin Liu, Education, Equality, and National Citizenship, 116 Yale L.J. 330, 334 (2006) (arguing that the Citizenship Clause of the Fourteenth Amendment requires Congress to ensure a meaningful floor of educational opportunity).
208. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 36 (1973). The possibility of a constitutionally protected minimum floor of education has been preserved in subsequent federal education litigation. See supra notes 34-41 and accompanying text.
209. See Rodriguez, 411 U.S. at 24.
210. Ratner, supra note 43, at 831 & n.233 (concluding that in light of the state's pleadings, when the Court used the phrase " 'absolute deprivation of education,' it implicitly defined education as adequate education" (footnote omitted)).
211. See Rodriguez, 411 U.S. at 36.
212. See id. at 36-37.
213. See id. at 37.
214. See Briffault, supra note 62, at 38 (noting that in school finance litigation, adequacy has developed as a theory of "equity plus").
215. 515 S.E.2d 535 (S.C. 1999).
216. NJ. Const, art. VIII, § 4.
217. See supra note 43 and accompanying text (describing the four categories of education clauses in state constitutions).
218. S.C. Const, art. XI, § 3.
219. See Abbeville, 515 S.E.2d at 539.
220. See id. at 540.
221. See id. (citing the seven-factor definition of an adequate education the Kentucky Supreme Court articulated in Rose v. Council for Setter Education, Inc., 790 S.W.2d 186 (Ky. 1989)).
222. See Salerno, supra note 106, at 510-11 & n.14 ("[T]he objective indicia of national consensus here-the rejection of the juvenile death penalty in the majority of States ⋯ - provide sufficient evidence that today our society views juveniles ⋯ as 'categorically less culpable than the average criminal.
223. (quoting Roper v. Simmons, 543 U.S. 551, 567 (2005))).
224. See Ratner, supra note 43, at 823-828
225. See id.
226. 406 U.S. 715, 738 (1972).
227. See Ratner, supra note 43, at 826 (noting that while the Supreme Court itself has not explicitly addressed whether Jackson requires a state mental institution to provide treatment where a criminal defendant has been committed for the purpose of treatment, the United States Court of Appeals for the Fifth Circuit so held in Wyatt v. Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974)).
228. See id. at 828.
229. See id.
230. See Rebell, supra note 10, at 228 ("In light of the U.S. Supreme Court's rejection of plaintiffs' claims in Rodriguez and the difficulties experienced by the state courts that issued remedial decrees in the early years, it is remarkable that advocates and state court judges continued to seek new ways to ensure fair funding and meaningful educational opportunities for poor and minority students.").
231. Dominion Hotel, Inc. v. Arizona, 249 U.S. 265, 268 (1919).
232. Even in light of these advantages, there are substantial limitations on the Court's power. If the Court were to recognize a positive right to a minimally adequate education, realizing such a holding would require much work on the part of the political branches and education experts. See generally Heise, supra note 80.
233. See Rebell, supra note 4, at 1540.
234. See Bitensky, supra note 138, at 552-553
235. See id.
236. See Carnegie Found, for the Advancement of Teaching, An Imperiled Generation: Saving Urban Schools xiv-xv (1988) (stating the need for a "unified response" to the urban school crisis);
237. Banks, supra note 46, at 153-155 (describing the lack of predictability in state court responses to education litigation because of each state's unique constitutional provision and various equal protection analyses).
238. Palfrey, supra note 3, at 40.
239. Carnegie Found., supra note 165, at xv.
240. Rebell, supra note 4, at 1540.