Back to School, Back to Court

The biggest thing the next president can do is something that's hardly been mentioned in this campaign: nominate federal judges who might one day toss out the system of the local funding of our schools.

The only way to really improve education, and thus ensure access to economic opportunity for all, is to end the shocking disparities in per-pupil funding in U.S. public schools. In my state, Illinois, it ranges from $5,000 per child in poor districts to almost $20,000 in blue-chip districts. Other big states are almost as bad. The state legislatures won't fix it. No Congress will fix it. The only hope is in the courts, either in state-by-state suits based on state constitutional requirements or a whole new challenge in federal court.

Yes, I know: In the 1960s and 1970s, lawyers tried but failed to knock out the system in federal court. And the bench today is even less progressive. Even so, there's a case for trying again.

First, the disparities are now worse. That's no surprise, since the disparities in school funding help to lock in income inequality. As income inequality worsens, so do the disparities. Gentrification then pushes the poor out to the low-rent, squalid suburbs, which have even less property wealth than the cities where they used to live.

Second, the old legal defense to this system no longer works. That defense held that it might be unfair, but at least it promoted a justifiable goal -- local control of the schools. But local control is gone. In the last 10 years, state boards of education have shoved the local school districts aside. The state boards set the curriculum. The state boards write up the tests. The state boards set the bar that teachers and students have to meet. The local districts just pay the bill.

This new state control turns the traditional U.S. model on its head. The model of local control was locked in by the "high school" movement, which welled up at the local level in the 19th and early 20th centuries. But by the late 1990s, state boards had begun to set learning standards. They began to preempt the local districts, long before No Child Left Behind. Now, NCLB requires states to set standards, so state control is the law in all 50 states.

We can sentimentalize local control, but it is illegal under federal law. And that removes the only constitutional justification for the disgraceful disparities of U.S. education.

Few readers may know how close we came in San Antonio School District v. Rodriguez (1973).

After the U.S. Supreme Court outlawed segregated schools in Brown v. Board (1954), lawyers attacked local funding--to argue against disparity not just on the basis of race but wealth--and to hold state governments responsible for all the costs of education. But in Rodriguez, a slightly "post-Warren Court" turned back the attack by a single vote. The switch of a single vote would have changed the country perhaps as much as Brown v. Board. That 5-to-4 vote was the Thermidor of the 1960s civil-rights revolution.

In state courts, similar equal--protection challenges met the same fate. State courts praised "decentralization," though some tried to set a minimum standard without changing the basic structure, a consistently futile path to equal opportunity. The disparities were treated as the price we pay for our tradition of "local control."

So Jonathan Kozol's 1967 book on Boston's public schools, Death at an Early Age, led to its sequels; generations of poorly educated kids kept piling up. The U.S. system became a global disgrace, all for the sake of "local control." Every year when international test scores come out and Finland or some other country is in first, there's a flurry of op-eds: "Oh, it's some Finnish thing they do with the curriculum." But no one ever says, "Hey, maybe the Finns don't have disparities of $15,000 per pupil in the schools."

In Michigan, one local district has sued not the state but the U.S. secretary of education for "unfunded mandates." The states are only too glad to deflect these suits to D.C. In fact, the local districts should be suing their states. The state boards only use NCLB as a cover to set the standards they were putting in place anyway.

Without local control, there would no longer be a constitutional basis for any disparity within a state--not a single penny. What legitimate purpose would it serve? Minimum funding is not a fix. Progressive lawyers need to recognize that there is no longer either a moral or constitutional basis for rigging the school system for the well-to-do, and they must renew the fight.