People sue the government for discriminating against them all the time. The Trump Administration was recently sued by a handful of states after the attempted travel ban, claiming religious discrimination. The owners of Hobby Lobby sued the Obama Administration arguing that the Affordable Care Act (ACA) violated their religious freedom by requiring the company’s insurance to pay for contraception.
Lawsuits against state governments for school funding inequities are commonplace. In February Chicago Public Schools (CPS) sued Illinois Governor Bruce Rauner claiming that the state school funding system and its teacher pension system discriminate by underfunding low-income students and students of color. They have a point: a recent study found that Illinois operates the most inequitable school funding system in the country. CPS educates around 20 percent of the children in the state, yet it receives roughly 15 percent of state funding. While the judge recognized that Illinois’s school finance system is obviously broken, he nevertheless threw out the case.
So what can affected children and families do now?
The short answer is nothing. Although Judge Franklin Valderamma is allowing the plaintiffs to refile their case, the efficacy of school finance litigation, regardless of a court’s ruling, depends entirely on the state’s willingness to right a wrong of its own creation. In other words, those treated unjustly by a state school finance system must hope that their abusers change their ways without any way for the state to be held accountable.
This latest case in Chicago raises the specter of San Antonio v. Rodriguez from 1973, in which the U.S. Supreme Court ruled that there is no Constitutional right to education. The court also ruled that wealth (economic status) is not a protected class, unlike race or religion, and therefore is not subject to the strict scrutiny test, the most demanding form of judicial review. This means that the constitutional rights’ of low-income people are not afforded the highest level of protections when weighed against the government’s interest.
There are several serious consequences of Rodriguez. First, state courts are more likely to rule in the state’s favor even if the system discriminates against low-income students. Second, the hands of the federal government are basically tied when it comes to inequitable state school finance systems. Thus, if a state ignores a court order to improve its school finance system, families have no recourse. They are stuck. Third, school funding systems based on local property taxes, which comprise virtually every system in the country, are constitutional, even though they produce class-based disparities.
Due in large part to Rodriguez, there have been over 40 years of school finance litigation that struggle to produce sustained results increasing equity. Texas has been in and out of court since Rodriguez was decided. The state took action in response to a court order, and then rolled back those policies. The pattern continues to this day.
For a more recent example, consider the victory of the Campaign for Fiscal Equity in New York. The plaintiffs won a strong pro-equity ruling, and the state of New York responded positively. Good news. The problem, however, was that shortly thereafter, the state’s commitment wavered and eventually buckled. Now students are back in the same situation they were in previously.
The problem is similar in Washington State, where the state supreme court held the legislature in contempt of court for failing to comply with their order. And when the legislature has proposed changes, the court has continuously rejected them as far too insufficient to repair their broken education finance system. The court is doing the right thing here, but the buck stops with the legislature.
And although there is no silver bullet that could suddenly end disparities in school funding, overturning Rodriguez would provide a significant boost for equity. The federal government would then be able, as it does with voting rights, to ensure that all students have equitable access to the necessary resources for a high-quality education.