David Hinojosa: We don’t have education as a federal right because of the Rodriguez case, which I think we’re going to get into in a moment. But I want to start with how counterintuitive that is. I’ve gone around to many states where we’ve investigated potential educational opportunity cases. When I’m discussing this with the public, and I mention to them that we would have to file this in state court as opposed to federal courts, they’re like, “Why? What do you mean?” And I have to say, “Education is not a fundamental right under our US Constitution.” And their reaction is, “What do you mean? It’s so incredibly important. How can you succeed in life without a minimal quality of education?”

Rodriguez, despite the finding, doesn’t diminish the importance of education. Derek Black has written a lot about the importance of education during the nation’s founding by Jefferson and Adams, among others, who understood the important link between education and having an educated citizenry. And this was also examined in the Brown v. Board decision. Of course, when you look at that history, they knew that of course they were only speaking about White men with property; but they also knew that if we were going to have a true democracy, power would have to be in the people, and you didn’t want tyranny of the uneducated masses.

Bruce Baker: Derek Black has a Notre Dame Law Review piece on the originalist case, looking at all of these historical bases for why there is at the very least an implicit federal fundamental right to an education from the language of the founding fathers that you just mentioned, as well as during Reconstruction. And that kind of analysis is really missing in the majority decision in Rodriguez. It was really based on this kind of simple, explicit basis that education isn’t mentioned in the Constitution.

But even if it was there, I guess the thing that comes to me is the question: “Okay, if there was an explicit or implicit federal fundamental right, what would its interpretation be?” Because we’re still left, even with existing case law, with the fact that there may be some bare minimum educational adequacy line that falls somewhere below the Gary B. v. Snyder case about a minimum right to literacy, and outright exclusion, as in Plyler v. Doe. But we don’t have any more clarity than that.

In the state cases we have a number of different interpretations. The version that was accepted by the Kansas courts, by the New Jersey courts, and to an extent in litigation in Texas, is that all children should be afforded equal opportunity to achieve some common adequate outcome goals—that it’s not just a bare minimum set of inputs to schooling, but it is about some outcome goals. And even in that recent case in Detroit around the question of what is a minimally adequate education, it was focused on an outcome goal—literacy—as opposed to some basic sets of inputs that we never got to see because of Rodriguez.

What we never got to see was how the framing of a federal right to some level or type of education might have evolved over time. That’s what we’ve had to track across different states, where there’s been judicial interpretation of the constitutional phrasing and pressure on legislatures as to what types of remedies are required. But again, that’s been widely varied. Kansas has put the emphasis on making sure that all kids are provided with what’s needed to achieve the state-mandated outcomes. New Jersey also kind of shifted gears during the course of their litigation, focusing from around the late eighties to the mid-nineties on achieving parity across the wealthiest and poorest districts, and then moving toward this assumption that we need to drive a lot more money, resources, specific programs, and services into these particular districts for students to have equal opportunity at achieving common outcomes.

So, what that right is, how it’s laid out in the constitutional language, and then how it’s interpreted by the judicial branch and implemented in remedies—all of that matters. And Rodriguez shut down that conversation at the federal level, even though scholars right after Rodriguez were starting to write about that a little bit. What would adequacy be? How do we frame it in legal constitutional terms? But by then we had shipped it to the state courts.

David Hinojosa: How or why does it matter that education isn’t recognized as a federal right? Look at the core complaint in the Rodriguez case, which is about funding. Advocates were essentially saying, “Hey, we’re expected to offer these classes, offer these extracurricular activities; we’re expected to graduate students so they can decide whether they go on to college. And how can we do that when we don’t have the same resources as another district five or seven miles down the road?” That core issue was then passed off to the states because a majority of the Supreme Court refused to recognize that essential fundamental right. And as it shifted the conversation to the state courts, which is what Justice Marshall predicted in his dissent, questions became much more sensitive to local politics. Shifting that attention to the states opened the door to state courts offering their own arbitrary—and, in many cases, unfounded—interpretations of state education clauses.

We have a really good case in point in Texas—the 1989 Edgewood v. Kirby decision, a really strong decision, that looks back at the history of the education clause. But then all of the sudden, John Cornyn came in as a Supreme Court justice in Texas and said, “Well, we’re talking about equity and education, but only up to an adequate education.” And then you had Edgewood 3, and then Edgewood 4. In the latest school finance case, the Texas Supreme Court really annihilated its prior decisions and watered them down to almost where they’re meaningless, and the only thing that changed over time is the people wearing the robes.

Bruce Baker: What if we had had more aggressive intervention on behalf of plaintiffs in Rodriguez? How would this have played out? Many states have elected supreme courts, which necessarily politicizes those courts, and also can cause them to ebb and flow in different political directions over time. A handful of states have partisan-affiliated elected supreme courts, making it that much more politicized.

In the counterfactual case, are the federal courts enough? Are they less politicized, such that they might have managed the problem better? What would the current split be in our US Supreme Court on matters of managing remedies and providing equitable and adequate funding to schools across the country? I’m not sure it’s better. I’m not confident anymore that our federal court system is sufficiently less politicized. It’s frustrating.

David Hinojosa: And you know, to be fair to that point, there might be several states—including Kansas, maybe Washington State and New Jersey, among others—that would probably be a lot worse off, because those courts have acted in a steadfast manner to ensure that basic rights are protected. And I think sometimes federal courts will have a lot more deference to educational policymakers, which is unfortunate.

Bruce Baker: I think what we would have seen more of is parallel cases. I think we would have seen federal litigation filed, and we would have seen concurrent state litigation filed under state education articles, in part with the idea that the state litigation was going to progress more rapidly and perhaps lead to a remedy more quickly.

We have one example of that that I can think of in 1999: federal litigation was filed and state litigation was filed in Kansas. The Montoy cases in Kansas were filed in state court because the state had fallen back on a remedy that it had imposed in 1992. It basically reinforced racial disparities in funding of an earlier era. So, the lawyers in Kansas creatively filed a federal case, Robinson v. Kansas, arguing that the disparities that were created were a function of the design of the formula. All of these different factors—like funding small districts so much more than large districts, and to districts with kids attending new facilities—these factors had actually been designed to drive more money into Whiter and wealthier districts. So, they filed that in federal court; they filed a racially disparate impact claim, but that was during a time period when the Supreme Court incrementally took such claims off the table. They also had an equal-protection claim, that these design features of the formula violated equal protection. Those were the federal claims, but they also filed a state case, under the state constitution education article. But they knew that the federal case, if they got a win out of it, could only get a remedy that would reconsider how these weighting factors and pieces of the formula were designed. The state case was around the education article that the legislature had to make suitable provision, and that the state board of education was setting the standards, and they knew they had been assigned a district court judge who leaned favorably toward them, and that the state supreme court was a pretty good mix for them.

At the federal district court, the state argued that these issues were all decided in Rodriguez—that you can’t bring cases challenging disparities in school funding across school districts to federal court as a violation of equal protection, because Rodriguez already decided that. The Tenth Circuit, in that case—in Robinson v. Kansas—came back, and said: No, Rodriguez only accepted disparities resulting from deference to local control, which met the rational basis test. But these disparities that were created as a function of the design of the state aid formula could be challenged. But, by that time, the state case had already made it a lot further, and the federal court actually sat on it, because the state case was moving forward. By 2003 there was a lower court ruling, and then, a few years later, a higher court ruling in the state case.

So, I think there’d be parallel threads, even if Rodriguez had been decided differently. Some states, like in New Jersey and in Kansas and elsewhere, would have probably tried to press for parallel litigation under their state constitutions, and maybe still see more success there, and the federal litigation would really only end up protecting these minimum conditions in states where there were no other options for pursuing rights. Florida adopted really strong language in its constitution in 1998, and in 2019; the Florida Supreme Court said, “Yeah, but we don’t try to enforce that.”

David Hinojosa: I will say that when you think of equity in its simplest terms, it’s from a fiscal-neutrality aspect. That’s a hell of a lot easier to enforce as a remedy compared to adequacy, because adequacy has so many different moving parts. Is it a standards-based adequacy that you’ve recognized in places like Kansas? Is there a more qualitative component to enabling students to become college ready at the end of graduation, or to become educated citizens able to participate in the democracy? If so, what do you need for that? Do you need Algebra 2? Do you need Pre-Calc? What do you need?

Bruce Baker: We put out a report last summer that models an entirely new kind of federal aid strategy for providing equal opportunity to achieve common outcomes across all states and districts.Footnote ² We actually built out a national student need- and cost-driven foundation aid formula. A summary version of that report was in American Educator this past spring. But it’s kind of like in the dream world, where the US Supreme Court adopts the Kansas framing of what is the constitutional obligation, and, in fact, enforces a remedy to achieve that. That’s the kind of formula we would get that would actually provide the kids in Mississippi equal opportunity to achieve common outcomes with kids around the country.

But that ends up meaning you have to spend about twice as much or more than is currently being spent on kids in Mississippi, because right now they are woefully underfunded. In addition to that, they are, on average, much higher in need, and Mississippi as a state is very low in fiscal capacity to be able to raise its own money and solve its own problems. So, Mississippi would become very dependent on federal aid to help close those gaps, and it would be yet another layer of the types of policy solutions we’ve tried to impose within the state systems. You have to figure out what the cost of getting these kids to this outcome goal is. And then, how much can the state and its local districts put toward that cost on its own? And how much does the federal government now have to kick in to offset the difference? That’s not a pressure we’ve had, because there’s not been a federal right to bring kids to some common outcomes.

I think getting into those baseline equity questions might be easier with federal litigation, but those only get us so far. Rob Reich and Bill Koski did a really nice thought piece a number of years ago called “When Adequate Isn’t,” in which they talked about how even if we bring kids to some minimum bar, if we let all these other kids have that much more—knowing that so much of what we’re preparing these kids to do is, in fact, to compete with one another for slots into higher education, and later in the economy—we just leave those kids at the bottom, just as far behind, while the others continue moving further ahead.Footnote ³

David Hinojosa: I do think that suggests a little more limited notion of equity than I’m suggesting. People criticize the Serrano v. Priest decision from California, in which they established a strong equity standard. The state basically lowered the floor for everyone. But you know, when you have everyone at least on the same boat, that affords for very strong potential political alliances, as opposed to pitting one set of districts against another set of districts.

At least in my mind, when I think of equity—equal educational opportunity—it’s not, “Well, here’s a minimum floor.” Instead, I’m suggesting that whatever level of funding people have should account for weighted differences, such as compensatory education and bilingual education, students with disabilities, etcetera. And there are other characteristics that we could consider, like district size, geographic location, sparsity, etcetera. I’m suggesting we acknowledge that those factors would have to be put in play with an equity standard. I’m not suggesting that it’s just some floor.

As a matter of fact, that’s the problem with adequacy lawsuits. And that’s what was a concern with the Gary B. case.Footnote ⁴ If readers have never read a complaint, they should read it. It is astounding, and it is not something that the Detroit Public Schools could deny. But there were a lot of concerns among other advocates, including myself and others much smarter than me, about lowering the bar of an adequate education. Okay, so you have a right to literacy. What does that mean? Third grade, fifth grade, ninth grade? And at the end of it, is that actually going to push back against some of the stronger standards that have been developed in other states?

Bruce Baker: That’s something I agree with entirely. It made me very nervous that in the Gary B. case there seemed to be this feeling that getting the federal court to recognize something above zero was maybe not the best approach. We know that the court hasn’t stepped in to say what it is. What is that level other than what we have from Rodriguez? But there’s even language in Rodriguez to imply that there is some “minimum adequacy” requirement that might be articulated at a later point in time, and a lot of academic literature speaks to that. But to go at it from the standpoint that that minimum adequacy threshold is so incredibly low—to try to get that on the books—I thought was a little worrisome.

I think the fiscal-neutrality angle caused other problems that are different from the wealth-inequality definition. But these angles about solving schooling inequality that come about in Serrano, in Rodriguez seemed to me to be very intentionally not race-based, right? It comes up. But there seems to me, and I may not understand this well, like they were sidestepping it—trying to come up with a way to avoid the hot-button issue of the day. Am I missing something with that?

David Hinojosa: I will say I’ve been fortunate enough to be one of the rare civil rights lawyers who has worked both in school desegregation and school finance, both in public education and higher education, and I’ve seen the confluence of factors that are implicated here based on race and income and zip code. I have not done any deep analysis on this, but the attorneys for Demetrio Rodriguez and Alberta Sneed, and other parents who filed the lawsuit in 1968—they did recognize that relationship between race and zip code, right? They are on the west side, which is a predominantly Mexican American neighborhood, and they look across town to Alamo Heights and see a very strong majority-White population over there. And the attorney that they retained, Arthur Gotchman, is a great attorney. But he wasn’t necessarily a noted civil rights lawyer. And so that might have been an issue.

Yes, there certainly are correlations between the racial history, and I’ll share a little bit from our Texas case in 2004 about that. But remember that this was tied to property values, and you had property-poor districts that were majority White in Texas, and which were grossly underfunded as well, next to their neighbors who were oil-rich districts. I think that complicated things.

I’ve been to so many conferences and spoken in educational opportunity and school finance cases, and I’m always the one, you know, waving the flag about race, and I wasn’t the only one, but I’m waving it. In the Texas school finance case, the West Orange-Cove litigation, we represented property-poor districts. We called two witnesses, one who was a historian of racial discrimination in Texas, both in voting and education, among other areas—Dr. Andrés Tijerina. Then we called a social demographer, Dr. Christine Drennan, who looked at Bexar County and the number of districts in the county, and she found that way back in the 1940s, and preceding years, it wasn’t just about racial redlining issues. So yes, the federal government was saying, “Let’s put the poor Black people over here on the east side of San Antonio. Okay, let’s put the poor Mexicans over here on the west side. Wait, they don’t fit. Let’s put them on the south side also.” As they’re directing families to those neighborhoods, people in the White neighborhoods have deed restrictions, and it says they cannot be passed along to Black families or Mexican or Mexican American families—specific deed restrictions. Those kind of discriminatory provisions in private deeds from one seller to the next compounded these issues; and so, during their testimony, the State of Texas gets up and they object, and they’re like, “Wait a second, this has nothing to do with how districts are funded today.” And we argued against that. And the judge allowed us to continue with the testimony.

This is still going on today. Whether you want to call it de facto segregation, or de jure segregation, the fact is that neighborhoods are continuing to be divided along race, and that has heavy implications in terms of school funding and generating local property taxes. So, there’s definitely a huge issue. And I’ll just add one more issue from North Carolina’s Leandro court case. That case focuses on the state’s constitutional mandate to provide all children a basic education. In the Leandro litigation, which is the North Carolina litigation which the Lawyers’ Committee for Civil Rights and myself are involved in representing interveners; when we intervened into that lawsuit, yes, we had issues with their underfunding of low-income students and English learners—students who were in at-risk circumstances, essentially. But, we also had issues with Charlotte-Mecklenburg Schools and how they were dividing resources and sending resources to certain schools within the district that had recently desegregated. They had changed their whole scheme around funding local-allocation dollars, so we had raised issues in that case specifically about the district’s own intra-district allocation and how that might be race-based, and that issue that had been parked for a number of years in the case. But it is just an example of how these issues can be mixed.

Bruce Baker: A couple of follow-up points here: If I go back to the Kansas attorneys who filed the Robinson v. Kansas case, they did make the equal-protection argument and included racial discrimination claims under equal protection, but, with respect to the racial disparities, we were more focused on the Title VI argument, that these policies that had racially disparate impact were in violation of Title VI. It was within the same timeframe of their case being heard that we had other cases, like Alexander v. Sandoval, that came down and said, “Well, you don’t have an individual right of action to challenge a policy that has racially disparate impact.” So, they get tossed on a legal technicality.

The equal-protection claim was intact, but we didn’t have strong evidence of racial intent, which is required for heightened scrutiny in that claim. At the time I wrote my reports in the case and was deposed, I hadn’t learned enough about the history of racially discriminatory housing policies on which so much of school funding inequality remains built—often quite intentionally and by design—in order to make the argument that the disparities were in fact intentional and by design, not merely disparate in their effect. What we write about in our recent report on housing discrimination and school funding, including San Antonio, is equally about the role of racially restrictive covenants governed by private homeowners’ associations.

During this same timeframe when this Kansas case was going on, a sociological scholar who did his dissertation on this, Kevin Fox Gotham, wrote a piece on the role of racially restrictive covenants in the Kansas City metro area, about all these restrictions that were still in the deeds.Footnote ⁵ In related work, Preston Green and I had developed this incredible record to present on the issue, showing that it really was intentional.

In an attempt at a grandstanding moment at the Kansas trial, the outside attorney hired for the state who was questioning me about these disparities (knowing I had hedged on the racial intent issue in my deposition) walked away, turned around, and boldly got in my face and said: “Dr. Baker, you don’t believe these disparities are intentional, do you?” I looked at him and said, “Yes, I do.” And he tried to stop me right there. But Judge Bullock turned to me and said, “No, I’d like to hear more of this,” and we had a wonderful historical sidebar on the role of racially restrictive covenants.

There are certainly other intersections between desegregation litigation and the school funding litigation that pop up, but they run in parallel worlds. The Missouri v. Jenkins case, for instance, really led to a boost in funding in St. Louis and Kansas City, but it was put on the backs of local property taxpayers. But both communities had robust commercial and industrial tax bases to draw on. Certainly, Sheff v. O’Neill, a state desegregation case in Connecticut, led to a boost in funding to support the magnet school programs in Hartford and New Haven, which is actually really similar to the remedies in Missouri v. Jenkins. It was about, basically, all the funding we got to put into these districts so they can implement remedies that get us around Milliken, because we have to find some way to draw students in from neighboring districts. So those had significant financial implications that then actually, in some ways, complicated making the broader school-funding equity cases and state courts where they didn’t perceive they had a funding equity problem, because these major urban centers were getting additional funding as a function of de-seg cases—forgetting about all the other high-poverty districts around the state that were just suffering from inadequate funding.

David Hinojosa: I think that’s touching upon the issues also that not only can be potentially litigated, but also supported by research, including new research that needs to be done in this area around the history of the education clauses themselves, as well as the history of the funding systems and the evolution of funding systems and respective states. How and why are certain decisions made? In Texas, for example, they had cost studies that showed that the funding for English learners should be at least 40 percent above the basic allotment and they arbitrarily reduced it to 10 percent.

Secondly, to your point, Bruce, Texas has a hell of a lot more money than it pretends it does. But I do think that it raises these issues about what potential areas can be ripe for additional research—looking at these segregated patterns that were supported by both the federal and state actors at the local levels, and the recruitment of businesses to help draw upon or build up the property revenue that often contributes to education funding. I also think there’s still more to be written on the importance of why money matters. It’s something that, of course, you research. But as we continue to fight against the narratives from Eric Hanushek and others on this that still gain traction, it’s imperative that we continue to establish the critical link between funding and educational quality and opportunity.

Bruce Baker: At my core, it bothers me to see that states would put forth so much effort to defend their opportunity to not provide kids an adequate education. That much energy, that much money. And we know the plaintiffs in the context of these cases are always substantially outgunned in terms of what the state is willing to throw out there.

In terms of future research on this, one of the things that’s really hit me lately is that there are two parts to this. I think HEQ readers will especially like one part, which is that historical analysis beats the most complicated econometric model any day. The other is that I have grown to understand that racially derived and racially focused policies are, in fact, the cause of the underlying economic disparities, and therefore really the cause of most of which flows from it.

I would encourage—even for those trying to come up with the complicated, causal, econometric, empirical model—to study the history behind those zeros and ones a little more. There are a lot of studies that talk about whether a school finance reform or a high court ruling as a “0” or “1” moment in time results in changes in school funding. I would love to see economists and policy scholars—my own peers—learn more about the history and be willing to go into historical document analysis for showing causation. Also, because legal causation and empirical, statistical causation are two different things, and I think legal causation is better supported by that deep historical analysis, and then a kind of metric model as well.