Last week marked 62 years since the Brown v. Board of Education Supreme Court decision, and our public schools are by and large, as segregated as they were when the policies were banned. After all, the mandate to “outlaw segregation” is not the same thing as “have integrated schools,” and the farther a decision has to travel from courtroom to outcome, the less likely it is to deliver on its objective. And yet Brown remains a cultural touchstone with deep and consistent resonance for education professionals, civil rights activists, and attorneys.
Civil rights litigation is regarded with a reverence that is, perhaps, disproportionate to its reality. It is expensive, time consuming, fractious for communities, and emotionally exhausting. In 1976, leading critical race studies professor Derrick Bell published “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation,” challenging the mainstream celebration of school desegregation litigation and describing the problem as one of a conflict of interest between lawyers invested in challenging segregation laws and their Black clients who wanted only high-quality schools for their children. Linda Brown, the student about whom the famous case was filed, has talked extensively about feeling exploited by a process that ultimately couldn’t provide integrated schools for her own children.
When we think about the purpose and effect of impact litigation, there are two recent cases that illustrate an important distinction: In a case like Obergefell v. Hodges, a righteous court opinion changed people’s lives overnight. Recently, we heard the same sort of evocative language used by the plaintiffs in Vergara v. California, where the legal victory alone wouldn’t guarantee changes, and any changes wouldn’t be felt for years. As a former education civil rights attorney myself, I’ve thought a lot about how these types of litigation both unite and divide the civil rights community as well as the part they play in education reform. Continue reading
In August, a Texas court declared the state’s school finance system unconstitutional, and a month later Governor-elect and current Attorney General Greg Abbott filed the state’s appeal of the ruling. The words Texas, school finance, and court were enough make this national news. The ruling responded to a suit filed by a group of school districts, charter schools, parents, and others charging that Texas neither spends enough money on its public schools, nor does it spend it correctly. It’s not the first such case; the most recent was in 2005. Nor will it be the last. But while the current ruling reflects important and distressing facts about the condition of education in Texas, the reality of the legal process means that any action to address the problems will be a long time coming. In Texas, and many other states, litigation is ultimately an ineffective way to change education policy – something that should sober those hoping Vergara-style suits usher in an era of change.
The legislature will convene for its regular session in a couple of months, but if history is any guide, the district court ruling in the finance case will be ignored by those with the actual power to change the system. Instead, the legislature will wait to act for a year or more, allowing the appeals process to run its course. The wait and see approach is justified partly by the fact that the Texas Supreme Court overturned a significant portion of a 2005 school finance ruling by the same district judge. So, rather than acting immediately on a district court ruling with a $5 billion annual price tag, the legislature will pin its hopes on the markedly more conservative Texas Supreme Court for a possible reversal or at least a less costly set of marching orders.
One challenge to urgency in addressing a system that already spends the lions’ share of the state’s money is prevailing rhetoric that money is not the answer. Strong voices in Texas’ fiscally conservative policy landscape argue that increases in public education spending haven’t yielded desired results—so clearly the answer is not more money. Correcting the course of public education in Texas cannot be solely a function of funding. But, since the Texas Supreme Court asserted in 2005 that school funding was “drifting” towards inadequacy, student achievement has lagged in the face of tougher standards. And in real dollars, funding looks pretty flat.
Some highlights (lowlights) from the court’s findings on student achievement include: Continue reading