the evolving right to an education in the united states william s. koski professor of law and...
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The Evolving Right to an Education in the United States
William S. Koski
Professor of Law and Professor of EducationStanford University, California, U.S.A.
Legal Norms: Ensuring the Right to an Education
Oslo, Norway
April 26 & 27, 2012
Today, education is perhaps the most important function of state and local governments. . . . . It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
-Brown v. Board of Education (1954)
The Evolving Right to an Education in the United States
Overview
1. The law’s struggle with the meaning of equality of educational opportunity among diverse groupsa. The meaning of Brown v. Board of Education
b. Equality of educational opportunity for diverse groups
2. From racial equality to resource equality to the qualitative right to an educationala. The concept of equality of educational opportunity
b. The three “waves” of educational finance reform litigation
3. The future of educational rights litigation
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The law’s struggle with the meaning of equality of educational opportunity among diverse groups
Brown, racial equality, and schools Equality of educational opportunity for
diverse others
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The “Separate, but equal” era (1849-1954)
Roberts v. City of Boston (Mass.1849) “Separate, but substantially equal”
Plessy v. Ferguson (U.S. S.Ct. 1895) Efforts to enforce “separate, but equal”
Cummings v. Richmond Board of Education (U.S. S.Ct.1899)
NAACP Campaign (primarily graduate and professional schools)
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The meaning of Brown v. Board of Education
Anti-subordination rationale Anti-classification rationale The centrality of education rationale
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Implementing Brown
1954-1966: Massive Resistance 1964 Civil Rights Act 1965: Elementary and Secondary
Education Act, Title I Green (1968): Affirmative integration
(Atlanta, Georgia) Swann (1971): Busing (Charlotte, North
Carolina)
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Implementing Brown (Part II)
The Dayton and Columbus, Ohio cases De jure vs. de facto segregation
Keyes (1973): Latinos and proving segregative intent (Denver, Colorado)
Milliken I (1974) and Milliken II (1977) (Detroit, Michigan): De facto segregation and educational resource remedies
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The resegregation era
Board of Education of Oklahoma City v. Dowell (1991) (Oklahoma City, Oklahoma) Compliance with the Green factors
Freeman v. Pitts (1992) Good faith efforts and temporary/partial compliance
Missouri v. Jenkins (1995) (Kansas City, Missouri) Educational outcomes don’t matter
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“Second Generation” Discrimination
Discriminatory effects Policy areas
Tracking and course assignment School discipline High-stakes testing
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Still separate
Desegregation of black students, which had increased from the 1950s to the late 1980s, has now receded to levels not seen in three decades
Whites are the most segregated racial group – somewhat less in the South and West than the Northeast and Midwest
A rise of what Harvard Civil Rights Project calls “apartheid schools” – all-white schools
Latinos are the most segregated minority group
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Still unequal (ctd.)
Black-white, Latino-white achievement gap, though having closed somewhat over recent decades, remains wide
Replicated in graduation rates: HCRP/Urban Institute Study using 2001 data Only 50% of all black students; 51% of Native American; and
53% of Hispanic students graduated from high school within four years
Black, Native American, and Hispanic males fare even worse: 43%; 47%; and 48%, respectively
Compares to about 75% of all white high school students
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Equality for other groups
Women and Girls (Title IX of the ESEA) English Language Learners
Lau v. Nichols (1974): “Affirmative steps” Castenada v. Pickard: (5th Cir. 1981)
Children with Disabilities (Section 504 & Individuals with Disabilities Education Act)
Lesbian, Gay, Bisexual, Transgender Youth
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The Evolving Right to an Education in the United States
From race to resources: Educational finance litigation and the qualitative right to an education
The political, legal, and scholarly roots of educational resource litigation
The dissatisfaction with desegregation Perceived “failure” White flight, busing’s backlash, and the Black
Community Coons, Clune & Sugarman, Private Wealth and
Public Education (1971) Arthur Wise, Rich Schools, Poor Schools (1968) Poll taxes, prisoners’ rights, and Brown
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The Evolving Right to an Education in the United States
Equality of Educational Opportunity: Educational Resource Distribution Principles
The distributional object: What should be equalized?
The distributional principles: How should we distribute the distributional objects?
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The Evolving Right to an Education in the United States
Equality of Educational Opportunity: The Theories
Distributional object Inputs (money and the things
money can buy) Processes (curriculum,
tracking) Outcomes (attainment,
achievement)
Distributional principle Adequacy Horizontal equity Vertical equity
Weak humane Strong humane
Neutrality Arbitrary characteristics Proposition 1/fiscal
neutrality Merit? Effort?
The Evolving Right to an Education in the United States
Some history of school finance in the U.S.
Local property taxes as primary funding source Why? State funding: virtually none until the early 1900s Federal funding: none until the 1960s categorical programs
(still only 7-8%) The states’ role in funding:
Strayer-Haig/Foundation Plans Per pupil per classroom
Categorical funding Debt financing Private contributions to public education
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The Evolving Right to an Education in the United States
The three “waves” of litigation
The First Wave (~1971-1973) Federal Equal Protection The “equity” standard
The Second Wave (1973-1989) State Equality Provisions and Educ. Articles The “equity” standard
The Third Wave (1989-present) State Education Articles The “adequacy” standard
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The Evolving Right to an Education in the United States
The “First Wave” Legal Theories
Strict scrutiny analysis Education as a “fundamental right”
Brown’s language The importance of education to the exercise of other
fundamental rights such as the right to vote and freedom of expression
Poverty as a “suspect class” Indigent prisoner cases Poll tax cases
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The Evolving Right to an Education in the United States
The First Wave (~1971-1973)
The legal hook: Equal Protection Clause
The early federal cases: needs-based standard
Serrano v. Priest (California Supreme Court) Education as a fundamental right Fiscal neutrality standard
Rodriguez (U.S. Supreme Court): No fundamental right to an education Poverty not a suspect classification
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The Evolving Right to an Education in the United States
The Second Wave (1973-1989)
Robinson v. Cahill: State Education Articles What do state constitutions have to say about education? Textual bases
Establish a system of public schools Some quality characteristic like “thorough,” “efficient,” or “uniform” A high level of quality: “paramount duty,” “excellent”
Does it matter what the constitution says?
Serrano v. Priest (revisited): State Equality Provisions
The evidence of inequity: how do we establish a violation of the constitutional principles? Statistical analyses Qualitative comparisons
The litigation strategy (Ford Foundation)
Plaintiffs’ record: 7-15 22
The Evolving Right to an Education in the United States
The Problems with Equity and Equal Protection
The hallowed status of “local control” Does money matter?
Education production function literature Battle of experts
What is equality of educational opportunity? Fiscal equity Fiscal neutrality Student needs
Political backlash to “Robin Hood” schemes and “leveling down” Buse v. Smith: the “negative aid” districts California
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The Evolving Right to an Education in the United States
The qualitative right to an education: the modern “adequacy litigation movement
The concept of adequacy Politically acceptable: who could be
against a “sound, basic education” for all kids?
Grounded in the constitutional text Clarity that equity lacked?
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The Evolving Right to an Education in the United States
The Third Wave (1989-Present)
Rose v. Council for Better Education (Kentucky 1989) The educational policy climate: standards-based reform
and accountability The Adequacy Standard
Vague and broad: civic and economic Specific, though abstract capacities Dovetail with standards-based reform and accountability
The evidence of inadequacy Outcomes: achievement (proficiency, state comparisons) Meeting state-established standards
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The Evolving Right to an Education in the United States
The challenges of adequacy
The judiciary as educational policy-maker Institutional limitations of the judiciary Tied to the constitutional text Politically agreed-upon outcomes
More clarity? Outcomes (achievement, proficiencies)? Inputs and the uncertain technology of education Minimums vs. high expectations
The bottomless pit of leaving no child behind Should we be decoupling the rich from the poor?
The tenacity of equity.
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Robles-Wong v. California
The context The parties The theory The status
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The Evolving Right to an Education in the United States
Where are we headed?
Standards-based reform and adequacy (OTL) Educational accountability and efficiency Discrete educational resource litigation
California cases Teacher quality as a right Early childhood education as a right
Vouchers and choice as a remedy Inter-state, intra-state/inter-district, and intra-district
inequality Courts getting fatigued?
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