CHAPTER ◆ 3
Education
In October 1972, the Supreme Court heard a case that, more than any since Brown v. Board of Education, had the potential to transform the nation’s education system and create a more equal America. In San Antonio Independent School District v. Rodriguez, students from a poor school district in Texas challenged the state’s system of financing its public schools. The plaintiffs argued that the wide disparities in funding that existed between Texas’s wealthiest and poorest school districts violated the Fourteenth Amendment Equal Protection Clause.
For advocates of equal educational opportunity for all children, school finance reform was the next frontier. By the early 1970s, the nation had made considerable progress in implementing Brown’s mandate to dismantle segregation in schools all across the South. Even if the promise of Brown was fully realized, however, there would still be enormous differences in the quality of education available to the nation’s children based on the wealth of the school district they lived in. The Rodriguez plaintiffs were asking the Court to rule that when the state provided public education, it should not be able to discriminate against poor children—or, more precisely, children in poor school districts—any more than it could against black children.
Rodriguez arrived at the Court at an inauspicious time for the plaintiffs. Though they had filed their lawsuit at the height of the Warren Court, just six weeks after it unanimously struck down the man-in-the-house rule in King v. Smith, by the time the case was argued in the Supreme Court, the Burger Court was three years old, and the Nixon justices were firmly in place. The case would be decided by a Court made up of the four Nixon justices, three liberal justices—Douglas, Brennan, and Marshall—and two moderate conservatives: Stewart and White. Although the plaintiffs had considerable momentum behind them, it was not clear whether they would be able to find five votes on the new Nixon Court.
The Rodriguez plaintiffs’ path to the Court began on May 16, 1968, when four hundred students at Edgewood High School in San Antonio, Texas, walked out of their classes to protest the quality of the education they were receiving. The Edgewood School District was an impoverished Mexican American ghetto carved out of wealthier, whiter San Antonio. Edgewood’s schools were 90 percent Hispanic and 6 percent African American. The district’s median annual family income was just $4,686.
The Edgewood students who walked out had a long list of complaints. Classes were overcrowded, and there was a shortage of textbooks. Many teachers were unqualified: 20 percent lacked college degrees, and 47 percent were working on emergency teaching permits. The district had decrepit, unsafe school buildings. At the elementary school, the second and third floors had been condemned but were still being used for classes, and the fire escapes were crumbling. “I’d be afraid to get on the fire escape,” a school board official said. “That would be as much a hazard as the fire.”
The nearby Alamo Heights School District was a world away in economics and demographics. It was the wealthiest district in the San Antonio metropolitan area, with a median family income of over $8,000. It was also considerably whiter than Edgewood—its students were just 18 percent Latino and less than 1 percent black. Property values in Alamo Heights were far higher than in Edgewood, which gave the district a strong tax base to pay for its schools.
The educational opportunities available in Alamo Heights reflected the district’s greater resources. Its top teacher salaries were 25 percent higher than Edgewood’s, which attracted more qualified teachers. Alamo Heights teachers all had college degrees, and only 11 percent worked on emergency permits. Alamo Heights’ teacher-student ratio was significantly lower than Edgewood’s, and it had more and newer textbooks. The facilities were also far superior. Alamo Heights’ high school had an Olympic-size swimming pool and an air-conditioned clubhouse with a disco ball.
Edgewood’s problem was its limited tax base. Alamo Heights, with its expensive homes and prosperous businesses, had $45,095 in taxable property per student, while Edgewood had just $5,429. There were state funds that were meant to equalize the finances of poor school districts, but because of flaws in the formula, the money failed to do that. Taking all revenue into account, Alamo Heights had $594 per student per year, while Edgewood had just $356, or about 40 percent less.
The gap in school funding between rich and poor districts across the state was even larger than the gap between Edgewood and Alamo Heights. A Syracuse University professor did an analysis of statewide school finance data and found that Texas’s wealthiest districts spent an average of $815 per pupil annually. The poorest districts spent an average of just $305 per pupil.
After the Edgewood High School walkout, parents formed the Edgewood District Concerned Parents Association to work for better schools. It was clear, however, that there was little they could do locally. The state imposed a limit on local tax rates, and even if Edgewood reached that limit it would not be able to raise as much money per pupil as districts like Alamo Heights.
The Edgewood parents were also blocked at the state level, due to the legislature’s unwillingness to support meaningful reform. Governor John Connally had appointed a blue-ribbon commission that actually recommended increased state funding, with special attention to the needs of districts like Edgewood. Connally, however, would soon leave office and the commission’s recommendations would go nowhere.
The only hope, it seemed, was the courts. The Edgewood parents met with Arthur Gochman, a local civil rights lawyer, to discuss their options. Gochman told them there was a good argument to be made that Texas’s school finance system was unconstitutional. At the time, the Supreme Court had already issued many of its rulings expanding the rights of the poor, including Gideon v. Wainwright, recognizing a right to counsel, and Harper v. Virginia Board of Elections, striking down the poll tax.
While the Edgewood children and parents were rising up, a movement was forming in academia to establish that poor children had a right to equal educational opportunity. In 1965, three years before the parents’ meeting with Gochman, Arthur Wise, a University of Chicago graduate student, began formulating an argument that disparities in funding between rich and poor school districts were unconstitutional. Three years later, he published his critique of school finance systems in a book, Rich Schools, Poor Schools: The Promise of Equal Educational Opportunity. Wise believed that school funding disparities could violate the Equal Protection Clause, and his argument was gaining adherents across the country.
Courts had also been moving in that direction. In 1967, Judge J. Skelly Wright, a leading liberal on the U.S. Court of Appeals for the D.C. Circuit, had ruled that disparities in educational opportunity among the schools in the Washington, D.C., school system were unconstitutional. The Equal Protection Clause did not permit “rich and poor” to be “consigned to separate schools” that were not “run on the basis of real equality” in “their objectively measurable aspects,” he said, unless there were adequate justifications for the inequities.
On July 30, 1968, Gochman sued Texas on behalf of Edgewood parents and schoolchildren. The lead plaintiff in Rodriguez v. San Antonio Independent School District was Demetrio Rodriguez, a member of the Edgewood District Concerned Parents Association. Rodriguez’s own story reflected what was at stake. He was the son of farmworkers who had moved from the Rio Grande Valley to San Antonio when he was six, in search of a better education for their children. Rodriguez, who left school to serve in the Navy in World War II, became a sheet-metal worker on an Air Force base. He wanted a better future for his own children and did not believe that Edgewood’s schools would provide it.
Rodriguez was assigned to a special three-judge federal district court in San Antonio. There were two distinct arguments for why the court should apply strict scrutiny to Texas’s system of funding its schools. One was that the school finance system discriminated on the basis of wealth. At the time, when the Warren Court was still expanding the rights of the poor, it seemed like a promising argument. The other argument for why the district court should apply strict scrutiny was that education was a fundamental interest. The Supreme Court was establishing a list of fundamental interests under the Equal Protection Clause. It had not said that education was a fundamental interest, but it had described it in past cases in ways that suggested that it might one day. In Brown v. Board of Education, the Court had declared unanimously that “education is perhaps the most important function of state and local governments” and said that “where the state has undertaken to provide” children with a public school education, it “is a right which must be made available to all on equal terms.”
If the district court accepted either of these arguments for strict scrutiny, the plaintiffs would have a strong chance of winning. If the court applied strict scrutiny, Texas would have to show that its highly unequal school finance system was necessary to advance a compelling state interest and that it was narrowly tailored to advance that interest. It would be extremely difficult for Texas to make that case on behalf of Texas’s deeply flawed system.
About a month after Rodriguez was filed, a group of parents in California brought a challenge to that state’s school finance system. The claims in Serrano v. Priest were similar to the ones raised by the Edgewood parents, but in addition to suing under the Fourteenth Amendment Equal Protection Clause, the plaintiffs also argued that the school finance system violated the California Constitution’s own equal protection guarantee. That separate state constitutional claim would allow the California Supreme Court to strike down California’s funding system even if the United States Supreme Court ruled that systems like California’s and Texas’s did not violate the federal Constitution.
While the Texas federal district court considered Rodriguez and the California state courts heard Serrano, the school finance reform movement kept growing. Wise’s scholarship turned out to be the start of a wave of academic writing aimed at establishing a legal basis for challenging school funding disparities. In Private Wealth and Public Education, John Coons and Stephen Sugarman, two University of California–Berkeley law professors, and William Clune, a University of Wisconsin law professor, showed that there were large inequities in school budgets nationwide, and they explored how they could be shown to violate the Equal Protection Clause.
The court hearing Rodriguez put it on hold temporarily to give the Texas Legislature a chance to address the inequities the Edgewood parents and students were challenging. The legislature, however, adjourned its session in June 1971 without doing anything to equalize school funding or to direct more money to districts like Edgewood. When it was clear that the legislature had no intention of acting, the court held a trial.
On August 30, 1971, while the Texas federal district court was still considering Rodriguez, the California Supreme Court ruled that California’s school finance system violated both the Fourteenth Amendment Equal Protection Clause and the California Constitution’s equal protection provision. In doing so, the court held that wealth was a suspect classification, and that California was impermissibly favoring wealthy districts. It also held that education was a fundamental interest. Serrano v. Priest was a strong endorsement of the school finance reform movement from the highest court in the nation’s most populous state. “By our holding today,” the California Supreme Court said, “we further the cherished idea of American education that in a democratic society free public schools shall make available to all children equally the abundant gifts of learning.”
About six weeks later, a federal district court ruled for plaintiffs who were challenging Minnesota’s school finance system under the federal Constitution. The district court in Minneapolis held that the state was denying students in poor school districts their rights under the Equal Protection Clause. The court said that education was a fundamental interest, noting that it had “a unique impact on the mind, personality, and future role of the individual child” and that it was “basic to the functioning of a free society.” It also decided that the state’s school finance system discriminated against the poor, and it said that the two factors “mutually reinforce” the poor students’ challenge to the system.
The school finance reform momentum continued to grow. The Lawyers’ Committee for Civil Rights became a clearinghouse for school finance challenges, backed by funding from the Ford Foundation. There would soon be more than fifty school finance lawsuits working their way through federal and state courts nationwide. A “chain of reactions” had been set off “in states throughout the country,” The Christian Science Monitor reported. “At issue is the whole structure of the financing of American education.”
On December 23, the federal district court in Texas handed the Rodriguez plaintiffs a sweeping victory. The three-judge court ruled unanimously that the state’s school finance system violated the Equal Protection Clause. The court accepted both arguments for applying strict scrutiny. It said that Texas had divided children into districts that varied significantly by wealth, and it held, citing the 1966 decision striking down the poll tax, that “lines drawn on wealth are suspect” and required a higher standard of review. The district court also recognized that education was a fundamental interest. As support, it quoted Brown v. Board of Education’s statement that “today, education is perhaps the most important function of state and local governments.”
The court held that Texas did not have a compelling interest that justified its unequal funding system. Texas had tried to justify the disparities in funding available to rich and poor school districts by invoking the principle of “local control,” which held that important decisions about education should be made at the community level. The court noted, however, that the system did not actually promote local control, since there was nothing a district like Edgewood, with its low tax base, could do to have well-funded schools.
Having ruled that Texas’s school finance system was unconstitutional, the district court had to come up with a way to bring it into compliance with the Equal Protection Clause. The court did not take control of the system or hand down specific directions for how it had to be structured. It also did not order the legislature to spend more money on education. It simply ordered the legislature to come up with a new system that provided equal educational opportunity to all of the children of Texas.
Federal district court rulings do not often make national headlines, but the Rodriguez decision did. The New York Times reported it at the top of the front page, with a subheadline that declared, “Wide Impact Foreseen.” The Wall Street Journal had its own front-page story, which advised that if the Supreme Court affirmed the ruling, it could be “the Brown vs. Board of Education of the 1970s.” The Rodriguez plaintiffs wanted “to outlaw school discrimination based on wealth,” the Journal said, the way Brown had “outlawed school discrimination based on race.”
The newspapers had good reason to believe that Rodriguez could have a broad impact. Education spending was highly unequal in every state but Hawaii, which had a single statewide school district. In many places, the disparities were even wider than in Texas. Beverly Hills, California, had a tax base of $50,885 per pupil, while nearby Baldwin Park had just $3,706 in taxable property per pupil. Beverly Hills spent more than twice as much per student as Baldwin Park did.
The Wall Street Journal story on Rodriguez warned that the decision could reach beyond education to launch a broader “revolution” that “could reshape the face of America.” The paper said that if the Supreme Court affirmed the ruling, it could lead to a “drastic revamping of property taxes to even out the school-tax burden.” That, in turn, could inspire “similar challenges to a host of vital public services, like housing, welfare and health care,” the Journal said. The Court might soon have to decide whether all citizens, regardless of the wealth of their community, were entitled to the same level of police protection or equally clean sidewalks, according to the paper. It quoted one lawyer who said that Rodriguez had opened “a very large door” to a “revolution in [public] services.”
While The Wall Street Journal contemplated how far the revolution might go, education advocates remained focused on what Rodriguez could mean for schools in poor communities. The district court’s ruling, they hoped, would be the start of a new, more egalitarian era in public education. Experts were already moving beyond the issue of liability—whether state school finance systems were unconstitutional—and on to remedy, or how the inequities could be eliminated. The days after the Rodriguez decision were heady ones for the education reform movement, as was reflected in the quote that John Coons, co-author of Private Wealth and Public Education, gave The New York Times about the ruling: “Hot diggity!”
Rodriguez was part of a rising tide of change that was sweeping the country. Two weeks before the federal district court ruled, the Wyoming Supreme Court issued its own ruling on equal school funding. A New Jersey superior court and the Michigan Supreme Court followed with decisions recognizing a constitutional requirement of equal funding. The momentum seemed almost unstoppable.
There were still holdouts resisting the idea that funds should be equalized across school districts. Wealthy districts argued that they were being unfairly penalized. The mayor of Beverly Hills, no admirer of the Serrano decision, insisted that “the way to lift the bottom isn’t to drag down the top.” Conservative education experts challenged the assumptions underlying the litigation. Chester E. Finn Jr., who would go on to become an assistant secretary of education in the Reagan administration, wrote an article in Commentary entitled “‘Serrano’ vs. the People.” In it, he made an argument that critics of school finance litigation would come to rely on: that money is not important to student outcomes. “We now have enough evidence,” he said, “to show that the kinds of expenditures” at issue in lawsuits like Serrano and Rodriguez “have very little bearing on what and how much the children actually learn.”
Most commentators, however, were on the side of reform. Journalists and academic experts largely cheered on the courts as they ordered states to restructure their school finance systems so all children were treated equally. The reason Serrano was greeted so enthusiastically was probably “the growing public eagerness for its result,” a legal scholar declared in the University of Pennsylvania Law Review. “Unlike many other societal problems in education and other areas,” he said, “the concept of fiscal equality in education is perceived as unambiguously good.”
The Supreme Court decided to review the district court’s decision in Rodriguez v. San Antonio Independent School District, and it heard arguments on October 12, 1972. This time, Gochman had the backing of an array of national organizations that submitted friend-of-the-court briefs, including the National Education Association, the AFL-CIO, and the NAACP Legal Defense and Educational Fund. Texas upgraded its legal team for the argument, retaining Charles Alan Wright, a prominent University of Texas constitutional law professor, to defend the school finance system. Wright was an outspoken conservative who, the following year, would represent Nixon in his efforts to prevent Watergate special prosecutor Archibald Cox from obtaining the White House tapes.
The Court that heard Rodriguez was very different from the one that existed when the case began. In July 1968, when Gochman filed the complaint, the Court had just struck down Alabama’s man-in-the-house rule, and nine months later it would strike down Connecticut’s durational residency requirement for receiving welfare. The Court appeared to be edging closer to recognizing the poor as a suspect class. By the time the Rodriguez case arrived, however, the Court had already decided Dandridge v. Williams, in which it made clear that it had little interest in the rights of the poor.
The membership of the Court had also changed considerably. When the case was filed, there were five justices who almost certainly would have voted for the Edgewood parents and children—Warren, Fortas, Douglas, Brennan, and Marshall—and possibly several more. It would have been hard back in the summer of 1968 to count more than two or three justices who could be expected to vote for the Texas defendants.
Now, a little more than four years later, only three of the Warren Court liberals remained—Douglas, Brennan, and Marshall. The Edgewood plaintiffs would almost certainly win the votes of those three, but it was not clear where they would find two more. The plaintiffs’ greatest hopes lay with three of the remaining justices: White, Stewart, and Powell. White and Stewart were in the Court’s center. Powell was the Nixon nominee who had come to the Court with a background as an educational leader in Virginia and purported moderate instincts.
Two weeks before the oral argument in Rodriguez, news broke that threw doubt on how sympathetic Powell would be. Jack Anderson, an investigative reporter and syndicated columnist, revealed a memorandum Powell had written for the U.S. Chamber of Commerce in the summer of 1971, just before his nomination. In “Attack on American Free Enterprise System,” Powell wrote that American capitalism was under assault, not only from radicals but from “perfectly respectable elements of society,” including the media, universities, organized religion—and the courts. The judiciary could be the “most important instrument for social, economic and political change,” he advised, “especially with an activist-minded Supreme Court.” Powell said that groups ranging “from ‘liberal’ to the far left” had been “perhaps the most active exploiters of the judicial system.” He urged big business to use the courts in a similar way to promote its own agenda.
When the Senate voted on Powell’s nomination, it did not know about the Powell Memorandum. Anderson noted in his column that the memorandum was stamped CONFIDENTIAL and that the FBI failed to turn it up when it investigated Powell. Anderson was blunt in his assessment of the memorandum and its author. It was “so militant,” he said, “that it raises a question about his fitness to decide any case involving business interests.”
The memorandum also raised questions about how Powell would approach Rodriguez. Its author sounded like a conservative ideologue who believed the nation was under assault from many of the groups that were backing the Rodriguez plaintiffs. Powell warned in the memo that “labor unions, civil rights groups and now the public interest law firms are extremely active in the judicial arena,” and “their success” was “often at business’ expense.” Powell also seemed to be disturbed by the sort of equality claims that were at the heart of the plaintiffs’ case. “This setting of the ‘rich’ against the ‘poor,’” he wrote, “is the cheapest and most dangerous kind of politics.”
At oral argument, Wright said the district court had been wrong to apply strict scrutiny to Texas’s school finance system. Students in poor school districts were not a suspect class, he said, and education was not a fundamental interest. Wright urged the Court to look to Dandridge v. Williams, Lindsey v. Normet, and “cases of that kind.” He asked the Court to apply rational-basis review to the school finance system and to hold that it was justified because of the importance of local control of education. If the Court upheld the district court’s decision, he said, it would “impose a constitutional straitjacket on the public schools of fifty states.” For the plaintiffs, Gochman argued that the district court had been right to apply strict scrutiny. He emphasized that the case was about discrimination—wealth discrimination. He also underscored the “constitutional importance of education.” It was “preservative of other rights,” he said, since Americans had to be educated properly to exercise rights that are expressly mentioned in the Constitution, including free speech, voting, and serving on juries.
It was hard to tell from the justices’ questions and demeanor at oral argument how the Court would come out. The Edgewood parents and students were optimistic that the victory they had won in the lower court would be preserved and that change was coming. Demetrio Rodriguez told the Associated Press that he believed the Court would “rule in favor of all the people” and uphold the district court’s decision. “They are fair men,” Rodriguez said, “and I have faith in their judgment.”
On March 21, 1973, the Court reversed the district court and upheld Texas’s school finance system, by a 5–4 vote. The majority was composed of the four Nixon justices—Burger, Blackmun, Rehnquist, and Powell—and Stewart. Powell wrote the majority opinion rejecting the Edgewood students’ plea for greater equality of educational opportunity.
Powell said the district court in Texas had been wrong to apply heightened scrutiny. He rejected the idea that students in poor school districts were a suspect class. There was no reasonable way, he said, to define such a class, in part because the state’s poorest people did not necessarily reside in the poorest school districts. The plaintiff class was, he said, too “large, diverse, and amorphous” to merit heightened scrutiny.
Powell also insisted, despite his time as a school board chairman, that education was not a fundamental interest. What mattered in making this determination, he said, was not the “relative societal significance” of education or whether it was as important as other fundamental interests the Court had recognized, such as travel. It was, he said, a matter of “assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.”
Once Powell rejected strict scrutiny, he had no trouble upholding the finance system under rational-basis review. He accepted Texas’s argument that allowing variation in funding among school districts promoted “local control” in education. Texas’s school finance system was, Powell insisted, an example of the noble American ideal of leaving “each locality . . . free to tailor local programs to local needs.”
Powell offered weak words of consolation for children in poor school districts across the country. There was a need for “innovative thinking” about education, he said, “to assure both a higher level of quality and greater uniformity of opportunity.” These changes should come, however, from “lawmakers and from the democratic pressures of those who elect them,” he said. This, of course, was exactly what Texas’s legislature refused to do, even after the district court held its school finance system unconstitutional. Powell said his opinion should not be “viewed as placing its judicial imprimatur on the status quo”—although, as a legal matter, that is precisely what it did.
In losing the case, the plaintiffs failed to win over not only Powell but Stewart. Stewart wrote a concurring opinion that went further than the majority in saying that the educational status quo was not ideal. Texas’s school finance system, like almost every state’s, had “resulted in a system of public education that can fairly be described as chaotic and unjust,” he said. His sympathetic words, however, offered little to the Edgewood plaintiffs or to children in other poor school districts, since he provided the fifth vote to uphold the Texas system.
White wrote a narrow dissent, which Brennan and Douglas joined. He argued that it was not necessary to find that education was a fundamental interest or that wealth classifications were suspect. Even under rational review, he said, the Texas school finance system had to be struck down because it was not rational. It did not allow for true local control, he said, because districts like Edgewood, with impoverished tax bases, could not choose to fund their schools adequately.
Marshall wrote a more impassioned dissenting opinion, which Douglas signed, that reflected the personal history he brought to the Court. Marshall had grown up in segregated Baltimore, the son of a steward in an all-white club on the Chesapeake Bay. After graduating from Howard Law School, he became a leading civil rights lawyer in Baltimore and later director-counsel of the NAACP Legal Defense and Educational Fund. President Kennedy nominated Marshall to the New York–based U.S. Court of Appeals for the Second Circuit, and he was confirmed over heated opposition from southern senators. President Johnson appointed Marshall solicitor general and then nominated him to the Court.
Marshall was the preeminent civil rights lawyer of his time. He was the movement’s chief legal strategist, and he argued many of the most important civil rights cases before the Court, including ones that invalidated racial restrictions in house deeds and ended all-white primary elections. Some of Marshall’s most important cases involved discrimination in education, including, most famously, Brown v. Board of Education.
In his dissent in Rodriguez, Marshall said the district court had been right to apply heightened scrutiny. He agreed with Gochman that education was a fundamental interest, because of its “close relationship” with “some of our most basic constitutional values.” He also argued that children in poor school districts were a class that was entitled to more than mere rational-basis review.
Marshall compared the students in poor school districts like Edgewood to the kinds of students he represented as a lawyer, who had been forced to attend all-black schools that had far fewer resources than the all-white schools. Just as his clients had not asked to attend these educationally impoverished all-black schools, he said, “it is difficult to believe that, if the children of Texas had a free choice, they would choose to be educated in districts with fewer resources.” The Court’s decision to uphold the Texas school finance system, he said, could “only be seen as a retreat from our historic commitment to equality of educational opportunity.”
Marshall was not impressed by the majority’s hope that legislatures would address the problem. He had a different suggestion about where reform might come from. He ended his dissent by noting that there was nothing in the Court’s decision to prevent state courts from striking down campaign finance systems under their own state constitutions, as courts in California, New Jersey, and Michigan had done. If the Court would not provide children in the nation’s poor school districts with equal educational opportunity, Marshall suggested, they should look for other courts that would.
The New York Times once again reported the Rodriguez decision on its front page. It emphasized how close the Court had come to ordering a revolution in American education. “If a single Justice had shifted his vote, reversing the Court’s ruling, the school system of every state except that of Hawaii would have been materially affected,” the Times noted, “with residents of richer districts paying more taxes to help support comparable standards in poorer districts.”
To civil rights groups and anti-poverty advocates, the decision was “a crushing blow,” the Los Angeles Times reported. As a result of the Court’s ruling, a whole wave of lawsuits in lower courts around the country would be dismissed. The academic experts who for years had been doing the theoretical work underlying the litigation suddenly saw their visions for the future crushed. “It hurts,” John Coons said, “especially because the vote was so close.”
In the Texas Legislature, there was palpable relief. The chairman of the House Revenue and Taxation Committee told The Austin Statesman that he was “very surprised” by the outcome. The chairman of the House Education Committee expressed gratitude to the Court, which he credited with freeing the state from the “huge tax bill that probably would have resulted.” Texas governor Dolph Briscoe said he was pleased that his state would not have to reform its education system “under the pressure of court edicts.”
Edgewood, which had its hopes raised by the district court’s decision, was despondent about its loss. The Austin Statesman reported that the school district was “depressed.” Edgewood’s deputy superintendent, Mauro Reyna, said the ruling meant that a bad financial situation would continue or quite possibly get even worse. “We’re left holding the empty bag,” he said.
The plaintiffs felt the loss most keenly of all. At the end of its story on the ruling, The New York Times appended a short report from San Antonio on Demetrio Rodriguez’s reaction. He said he could not avoid “feeling deep and bitter resentment against the supreme jurists and the persons who nominated them to that high position.” Rodriguez declared that “poor people have lost again, not only in Texas but in the United States.” The Times ran the report under the headline “Plaintiff Is Bitter.”
Rodriguez was an education revolution that nearly occurred, and there are many ways it could have. If the Edgewood plaintiffs had filed their lawsuit a few years earlier, the Warren Court would have decided it, and they would almost certainly have won. Alternatively, if President Johnson had succeeded in replacing Warren with a liberal chief justice, there would have been enough votes for the plaintiffs to prevail.
The real ghost haunting Rodriguez, however, was Abe Fortas. Fortas would have been on the Court in 1973 if Nixon had not misused the power of the presidency to drive him off. If Fortas had still been serving, he would doubtless have provided the plaintiffs with the fifth vote they needed to win. It is little appreciated how profoundly Nixon’s lawless campaign against Fortas changed constitutional law and public education. Poor school districts and the children who attend school in them have paid the price ever since.
The movement to equalize school funding did not end after Rodriguez. As Marshall pointed out in his dissent, the Court’s ruling was only an interpretation of the U.S. Constitution, and state courts were free to hold that their own state constitutions prohibited unequal school funding. These state claims were generally stronger than the federal constitutional claim as a matter of constitutional interpretation, since virtually every state constitution contained an express education provision in its text, something the U.S. Constitution does not have.
Coons advocated shifting the battle to state courts, though he said it would at best be a “consolation prize.” The state court route had significant disadvantages, starting with the amount of work required. Rather than winning a single national victory, as the civil rights plaintiffs had in Brown v. Board of Education, advocates for poor children would have to bring a separate lawsuit in every state except Hawaii. Each would have to be brought under a different state constitution, which had its own text and history, and argued to a different state supreme court.
Even if some lawsuits prevailed, it was almost inevitable that others would not and that some schoolchildren would lose out. After Brown, the right to desegregated education was a national one, guaranteed to every child in America. As the state school finance cases proceeded, by contrast, the result would be a legal patchwork in which students in some states would have the right to an equally funded education while students in others would not.
In the decades that followed, some state challenges did succeed. From 1973 to 2019, plaintiffs won school finance lawsuits in twenty-five states, including California, New York, Ohio, and Pennsylvania. In the same period, lawsuits failed in twenty-one other states, including Illinois, Virginia, and Florida. The Louisiana Supreme Court, in rejecting a school finance equalization lawsuit, declared that, with only limited exceptions, “the legislature has control over the finances of the state.”
In Texas, after Rodriguez, poor school districts moved into state court. They prevailed under the state constitution, and the court ordered Texas to direct more funds to districts like Edgewood. The system became less unequal, but, even after decades of litigation, court orders, and legislative plans, it fell short of actual equality. In 2016, the all-Republican Texas Supreme Court unanimously upheld a school finance system that still directed more funds to wealthy districts. A lawyer who represented a group of school districts called the ruling “a dark day for Texas school children.”
In many other states where school funding lawsuits have prevailed, poor districts have had difficulty making the courts’ orders a reality. In New York, a school finance lawsuit was settled in 2006, but in 2018 education advocates said the state was underfunding the schools that won the lawsuit by more than $4 billion. The fight to equalize school funding in New Jersey has gone on for nearly forty years.
If the Court had ruled for the Edgewood parents and students, school funding would be far more equal across the country today. It would have required all fifty states to adopt a school finance system that did not discriminate against some school districts. Even in states where state funding lawsuits have prevailed, a ruling from the Court would likely have been more effective in bringing about reform. If the Court had put its power and prestige behind equal school funding and not left equality up to the vagaries of individual state courts, it might well have been more difficult for state legislatures to resist making school finance formulas equal across districts. The Court would have had more vigorous enforcement tools at its disposal than state courts have, including the ability to order Congress to use federal education funding to compel states to equalize their school funding.
If the plaintiffs had prevailed in Rodriguez, there no doubt would have been more school finance lawsuits, and the Court could eventually have moved beyond equal funding across school districts. It could have held that the Equal Protection Clause requires “equitable” school funding, meaning funding formulas in which money is allocated based on the difficulty of the educational challenges a school district faces. The Court could have recognized that poor school districts that have students who are on average more expensive to educate, because they come to school less prepared to learn, needed more funding per student than districts in which students arrive with greater advantages.
In time, the Court might have gone further still and recognized a right to not only an equitable education but an adequate one. The Kentucky Supreme Court did this in 1989, when it declared the Kentucky school finance system unconstitutional. The court held that the Kentucky Constitution’s mandate that the state “provide an efficient system of public schools” required it to operate schools that were adequately funded. The court also identified a set of educational “capacities” that Kentucky should have the goal of providing to every child. Unlike other rulings, the Kentucky decision addressed the kind of education that had to be provided, not merely how it should be funded.
The following year, the legislature adopted the Kentucky Education Reform Act of 1990, a major overhaul of school finance, curriculum, and other aspects of the state education system. The reforms were designed to provide equal educational opportunities for all schoolchildren and to ensure that education throughout the state met minimum standards of adequacy. The new law narrowed the funding gap between rich and poor school districts and produced substantial educational gains across the state. After the reforms took effect, reading and science scores increased significantly, the dropout rate declined, and Kentucky rose in the national educational rankings from forty-third, in 1992, to thirty-fourth, in 2005.
If the Supreme Court had ruled in favor of the Rodriguez plaintiffs on their equal funding claim, it could have been the start of a new and robust constitutional right to an education. Even if the Supreme Court had only equalized school funding within states, and steered clear of recognizing a right to an “equitable” or an “adequate” education, it would have dramatically changed the nation’s education system and increased the quality of education for millions of students in poor school districts. It would also have sent an important message: that in the eyes of the government, all children are equal and entitled to the same opportunity to succeed in life.
The year after Rodriguez, the Court decided another landmark case that had the potential to transform the nation’s schools and equalize educational opportunity for all children. The issue in Milliken v. Bradley was not school funding but racial segregation. The Court heard the case at a time when significant progress was being made in desegregating schools in the South but schools in the North were becoming more segregated. A new racial geography was emerging in large metropolitan areas: the overwhelmingly black and Hispanic big-city school system surrounded by overwhelmingly white suburbs. The Milliken lawsuit was an attempt to bring integration to the North, in a place where segregation was particularly pronounced—the Detroit metropolitan area.
Milliken began, as Rodriguez had, with a school walkout. In 1966, more than two thousand students at Detroit’s Northern High School left school to protest educational conditions. In another era, when it was overwhelmingly white, Northern High School had been highly regarded. By the mid-1960s it was an important black institution, whose alumni included Aretha Franklin and Smokey Robinson, but its academic quality had declined. To members of the black community, the issue was not only Northern High School’s academic weaknesses but the disparities that existed between it and Detroit’s majority-white high schools in resources, teacher quality, and college preparatory courses.
The walkout at Northern High School occurred at a time of growing frustration among blacks in the North, many of whom were beginning to feel that, in terms of education, they had it even worse than blacks in the South. By 1966 the South had made substantial progress in desegregating its schools. It had been slow going for a number of years after Brown v. Board of Education: in the 1962–63 school year, not a single black child in Alabama, Mississippi, or South Carolina attended an integrated school. In 1964, a decade after Brown, just 1.2 percent of black schoolchildren in the South attended school with whites. Congress, however, increased the pressure by passing the Civil Rights Act of 1964, which authorized the attorney general to file desegregation lawsuits and the secretary of education to collect data to monitor progress. The 1964 act brought about what one civil rights scholar called “the first serious implementation of Brown.” In the decade after the law passed, school integration in the South increased so significantly that before long its schools would be more integrated than schools in other parts of the country.
While the South was combining all-white and all-black schools into integrated school systems, white and black students in the North were moving further apart. In the early twentieth century, schools in the North had been overwhelmingly white. That began to change with the Great Migration, in which millions of southern blacks fleeing racism and poverty moved to northern cities like Chicago, Cleveland, and Detroit. Whites kept their distance from the growing black population, either by working to keep their neighborhoods white or by leaving for the suburbs. White flight was helped by an array of government programs, including subsidized Federal Housing Administration (FHA) and Veterans Administration (VA) home loans, which favored whites moving into non-integrated areas, and large-scale highway construction, which spurred the growth of new suburbs.
Detroit was a textbook case of how school segregation emerged in the North. In 1910, it was overwhelmingly white, with just 5,741 blacks, who made up 1.2 percent of the population. In each successive census, blacks constituted a larger percentage of the city, increasing from 4.1 percent in 1920 to 28.9 percent in 1960. As more blacks arrived, whites used an array of methods to reinforce neighborhood racial boundaries, from restrictive covenants—which barred nonwhites from buying homes in certain areas, until the Supreme Court invalidated them in 1948—to physical barriers. The most well known of those was the Eight Mile Wall, a six-foot-tall concrete barrier built in 1941 along a black-white border on the north side of Detroit.
Many Detroit whites fled to the suburbs. From 1950 to 1960, the population of the Detroit suburbs soared by nearly 80 percent. White flight continued in the 1960s, particularly after the 1967 Detroit riot, four days of unrest that resulted in forty-three deaths, more than a thousand injuries, and $200 million in property damage. With the riot, a city history notes, “what had been a gradual white exodus turned into a stampede.” By 1970, the black population in the city had increased to nearly 44 percent, and it was still rising.
Detroit’s demographic changes were even more pronounced in its public schools, which were significantly more black than the city population as a whole. In 1970, Detroit’s public schools were nearly 64 percent black. There was considerable racial segregation within the city school system, with white students concentrated in heavily white schools in white neighborhoods. The greatest racial disparity, however, was between the city and suburban schools. Some of the school districts in the Detroit suburbs were more than 98 percent white.
The 1966 Northern High School walkout was the start of a larger drive by the black community to demand greater educational opportunity. The next year, the newly formed Inner City Parents Council issued a report enumerating the shortcomings of the Detroit schools, which it charged were preparing blacks only for military service in Vietnam or welfare. In early 1968, the Detroit High School Study Commission, which was established after the Northern High School protest by prominent black and white leaders, declared that Detroit’s schools, particularly the ones with majority-black student bodies, “are becoming symbols of society’s neglect and indifference.”
Similar conclusions were being drawn all across the country. In 1967, after riots broke out in major cities—and while the Detroit riot was still under way—President Johnson appointed a National Advisory Commission on Civil Disorders to investigate the causes of the violence and recommend responses. In February 1968, the commission, which was named for its chairman, Illinois governor Otto Kerner, released a bestselling report that made the famous declaration “Our nation is moving toward two societies, one black, one white—separate and unequal.” One of the primary causes of the recent civil disorders, the Kerner Commission found, was the nation’s highly segregated and deeply unequal education system, particularly in large cities. “The bleak record of public education for ghetto children is growing worse,” the report declared. “In the critical skills—verbal and reading ability—Negro students are falling further behind whites with each year of school completed.” The commission declared integrated education “essential to the future of American society.”
The Kerner Commission increased pressure on the nation to confront the growing racial segregation in the schools. In March 1970, the Detroit School Board developed an integration plan that called for moving more blacks into majority-white schools and more whites into majority-black ones. When the newspapers wrote about the still confidential proposal, which they called a “sweeping integration plan,” white parents organized to combat it. Despite strong white opposition, the school board adopted the plan at a contentious public meeting, which was followed by bomb scares and death threats against the school board president.
White parents had greater success with the state legislature. It enacted a law, Public Act 48, that nullified Detroit’s integration plan and created a mechanism for white students in neighborhoods that were becoming more black to transfer to whiter schools. In the city, whites petitioned to recall the four school board members who voted for the integration plan. On Election Day, August 4, powered by heavy turnout in white neighborhoods, 60 percent of the voters supported recall. None of the new board members who replaced them supported integration.
Since the city and state had rejected desegregation, and the federal government was not working to combat school segregation in the North, supporters of integrated education had no choice but to go to court. On August 18, 1970, the NAACP sued the State of Michigan on behalf of Detroit students and parents, including Ronald and Richard Bradley and their mother, Vera. The lawsuit contended that Public Act 48, the state law designed to block integration, was unconstitutional and that Detroit’s schoolchildren were being denied the right to a desegregated education. Bradley v. Milliken, which was named for Ronald Bradley and Michigan governor William Milliken, had the same goal as the school desegregation lawsuits in the South. The NAACP would, however, face significant legal challenges that did not exist when it sued for desegregation in the South.
The first problem concerned proof. In civil rights law, segregation came in two varieties. There was de jure (“by law”) segregation, which resulted from laws and government actions that explicitly discriminated on the basis of race. In the South, where the law established separate school systems for whites and blacks, de jure discrimination was not hard to prove. There was also de facto (“in fact”) segregation, which was racial separation that came about without direct government action, because of housing patterns and other factors. The writer James Baldwin said that de facto discrimination meant “Negroes are segregated, but nobody did it.” Courts regularly ordered desegregation when they found de jure segregation, but not when they found de facto segregation. Unless the courts changed the law of de facto and de jure segregation, the NAACP would have to find a way to prove that the school segregation in Detroit was a product of explicit discriminatory government action.
The NAACP did have evidence that Detroit’s school segregation was de jure. New schools had been built in locations designed to reinforce racial lines. Detroit also engaged in discriminatory school assignment practices, such as transporting blacks from overcrowded black schools to other black schools, going past closer white schools that had room for more students. The state’s adoption of Public Act 48 was another official act designed to prevent racial integration. It was not as straightforward a case as the ones the NAACP regularly made in southern school districts, but it could be a winning one.
The NAACP’s second problem concerned remedy. Even if the Detroit schoolchildren won, it was not clear how the court could provide them with an integrated education. With the percentage of black students in the public schools approaching 70 percent and rising, even if a court ordered black and white students to be distributed evenly in schools across the city, black students would still attend heavily black schools. Such an order would also almost certainly cause many white parents to take their children out of the Detroit school system, making integration even more elusive.
There was, however, a possible solution. Since the metropolitan area’s student population was overwhelmingly white, a desegregation order that included both the Detroit and the suburban school systems could allow all of the students in the Detroit metropolitan area to attend integrated schools. That would, however, require the court to order busing of students among as many as eighty-six school districts, which were located not only in Wayne County, which contained Detroit, but nearby Macomb and Oakland Counties. A “metropolitan area” remedy of this kind, which moved students across the city-suburban line, would be new terrain for a desegregation case, and it was not clear that a judge would order it or that it would be upheld on appeal.
Bradley v. Milliken was assigned to Judge Stephen J. Roth, of the federal district court in Detroit, which was not particularly good news for the plaintiffs. Roth, who had been nominated to the bench by President Kennedy, was a former prosecutor and no great liberal. He had immigrated from Hungary as a child, and he grew up in an integrated neighborhood in Flint, where southern and northern whites, blacks, and immigrants all lived together. As a result of his upbringing, he said, he did not understand the idea of segregation. During the Milliken trial, which lasted three and a half months, the plaintiffs put on extensive evidence about the segregated education they were receiving and the roles Detroit and the State of Michigan had played in making it segregated. It made a strong impression on Roth, who later said that “all of us got an education during the trial.”
On September 27, 1971, Roth ruled in favor of the plaintiffs, holding that they were being denied a racially integrated education, in violation of the Fourteenth Amendment Equal Protection Clause. Roth held that the NAACP had proven that Detroit and the State of Michigan had engaged in de jure segregation. In an array of ways, the government had, Roth said, “acted directly to control and maintain the pattern of segregation in the Detroit schools.”
There was still the matter of coming up with a remedy. In June 1972, Roth issued a metropolitan remedy order that included Detroit and fifty-three districts in the surrounding suburbs. The Detroit schools could not be desegregated, he concluded, “within the corporate geographical limits of the city.” Roth was not concerned about whether the suburban districts had engaged in affirmative acts of racial segregation. What mattered was that the students in Detroit were victims of de jure racial segregation by the State of Michigan, which oversaw all of the state’s school districts. The Court had made clear since Brown v. Board of Education, he said, that the remedy for de jure segregation was “prompt and maximum actual desegregation of the public schools by all reasonable, feasible, and practicable means available.” That, he insisted, required a metropolitan-area-wide remedy.
Roth did not impose a specific plan for desegregating Detroit and the fifty-three other suburban districts. Instead, he laid out general principles for the remedy. All of the schools and classrooms in the fifty-four school districts should be roughly reflective of the racial composition of the metropolitan area as a whole, which was about 70 to 80 percent white. Also, the plan should limit as much as possible the amount of time students spent on buses. Roth appointed a committee, with representatives of the state, the city, the suburbs, and the plaintiffs, among others, to work out the specifics.
Whites in the Detroit metropolitan area responded to Roth’s ruling with outrage. Demonstrators converged on the federal courthouse to denounce what they regarded as forced integration. The protesters targeted Roth personally, with bumper stickers declaring ROTH IS A FOUR-LETTER WORD, as well as death threats. The response in the suburbs was similar to the South’s massive resistance to Brown v. Board of Education. A Birmingham, Michigan, policeman was quoted in a newspaper story saying, “I’ll go to jail before my kids go to Central High School in Detroit.” In the state’s May 1972 Democratic primary, voters shocked the nation when George Wallace, Alabama’s segregationist governor, who was running on an anti-busing platform, coasted to victory, winning more votes than any candidate ever had in a Michigan presidential primary.
Michigan appealed the case to the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit, which affirmed Roth’s decision, including his order of a metropolitan-area remedy. District lines are not “sacrosanct,” the appeals court said, and Roth had the power to “disregard such artificial barriers.” Given the demographics of the Detroit metropolitan area, it said, a desegregation plan that included both Detroit and the suburbs was “essential to a solution of this problem.”
Michigan asked the Supreme Court to review the Sixth Circuit’s ruling, and the Court accepted the case. The Burger Court that would be deciding it, despite the changes in membership since the Warren era, had not abandoned school desegregation the way it had quickly turned against the poor. In a 1969 case, the first major desegregation ruling after Burger arrived as chief justice, the Court continued to insist that segregated school districts in the South integrate “at once.” In 1971, in a case from North Carolina’s Charlotte-Mecklenburg School District, the Court gave specific directions on how desegregation should proceed, including, for the first time, expressly endorsing school busing as part of a desegregation remedy.
Although the Court had not abandoned its commitment to enforcing Brown v. Board of Education across the South, at least so far, a critical question was how it would approach what civil rights leaders saw as the next phase of school desegregation: the drive to bring it north. The year before it heard the Milliken case, the Court ordered desegregation in Denver, a city that, like Detroit, had never had a school system that was segregated by law. The Court found enough official acts promoting segregation to support a desegregation order. That decision, which came on a 7–1 vote, seemed on the surface like an encouraging sign for the Milliken plaintiffs.
The Court’s lopsided vote in the Denver case, however, was a misleading gauge of its enthusiasm for school desegregation in the North. Burger was in the majority, but he had nearly dissented, and he only concurred with the outcome, not with any of the majority’s reasoning. Powell wrote a separate opinion that expressed his affection for neighborhood schools and his dislike of busing. Rehnquist went further, with a sharply worded solo dissent that confirmed civil rights groups’ concerns about his confirmation. For years, going back to Brown, the Court had worked hard to be unanimous in its school desegregation rulings, to make clear to recalcitrant school boards that it was united in its commitment to racial equality. That consensus had now broken down. The real question, however, was what the Court would do when confronted with a large-scale urban-suburban desegregation order that, if accepted, would likely become the model for major metropolitan areas all across the country.
The following year, on July 25, 1974, the Court overturned Roth’s decision by a 5–4 vote, handing the Michigan defendants a sweeping victory. The Court broke down along the same lines as it had in Rodriguez, with the four Nixon justices—Burger, Blackmun, Powell, and Rehnquist—and Stewart in the majority. As he had in Rodriguez, Stewart wrote a concurring opinion that seemed to chart a more moderate course while still rejecting the plaintiffs’ claims. Milliken, which was almost entirely the work of justices Nixon had placed on the Court, came down just two weeks before Nixon resigned the presidency in disgrace over Watergate.
Burger, writing for the majority, focused not on whether the Detroit schoolchildren’s rights had been violated, but on whether the metropolitan-area remedy Roth had ordered was legal. He emphasized the importance of respecting school district lines. “No single tradition in public education is more deeply rooted than local control over the operation of schools,” he wrote, echoing Powell’s opinion in Rodriguez. While Roth had focused on the black children in Detroit, Burger was more moved by the plight of the white suburbs, which he viewed as innocent bystanders. Upholding Roth’s order would impose a desegregation order on “outlying districts” that had not been “shown to have committed any constitutional violation,” he said.
Burger, a proud son of Minnesota, rejected the civil rights movement’s contention that school segregation in the North and the South were comparable. The South had dual school systems for white and black students in the same district, a clear equal protection violation, he said, while Michigan had not created separate schools for whites and blacks. Unless Michigan “drew the district lines in a discriminatory fashion, or arranged for white students residing in the Detroit District to attend schools in” the surrounding suburbs, Burger said, it was “under no constitutional duty to make provisions for Negro students to do so.”
Stewart, in his concurrence, sounded more troubled that the Court was consigning black children in Detroit to a racially segregated education. He insisted, however, that despite what Roth and the court of appeals had said, the government was not in any way responsible for the de facto segregation they were living with. Stewart focused on the heavy concentration of blacks in Detroit schools, and he said it had been “caused by unknown and perhaps unknowable factors such as in-migration, birth rates, economic changes, or cumulative acts of private racial fears.” It was a more elaborate way of saying what James Baldwin had: “but nobody did it.”
There were several dissenting opinions, but Marshall wrote the most heartfelt one, which all four dissenters—Marshall, Douglas, Brennan, and White—joined. In his description of the underlying facts of the case, Marshall challenged the idea that “nobody did it.” There was a great deal of evidence that affirmative steps had been taken to segregate black and white students in Detroit, Marshall said, and the responsibility for those acts lay with both the Detroit Board of Education and the State of Michigan. Since the state was partly responsible, he insisted, the remedy order could include all parts of the state—including the suburban school districts outside Detroit, which were part of the state school system.
The key point in the case for Marshall was that, because the Detroit school district was so heavily black, desegregation could not be achieved without including the suburban districts. That meant, he said, that there was no choice but to make the suburbs part of the remedy order. The Equal Protection Clause required, Marshall said, that when de jure segregation exists, “school authorities must, to the extent possible, take all practicable steps to ensure that Negro and white children, in fact, go to school together.” That is, he said, “in the final analysis, what desegregation of the public schools is all about.”
As Marshall saw it, the Court’s reversal of Roth’s order was nothing less than a betrayal of Brown v. Board of Education. It had been almost exactly twenty years since that civil rights landmark, and now, he said, the Court was taking “a giant step backwards.” Marshall sounded an alarm about where the Court was leading the nation. “In the short run,” he said, “it may seem to be the easier course to allow our great metropolitan areas to be divided up each into two cities—one white, the other black—but it is a course, I predict, our people will ultimately regret.”
Milliken was to a striking degree a repeat of Rodriguez. The Court was once again reviewing a district court ruling that interpreted the Equal Protection Clause to require that all students receive equal educational opportunity, no matter where they lived. In both cases, the state asked the Court to reverse the district court and uphold a status quo in which disadvantaged students received worse educations than other students. The states’ position in both cases was that better-off people had a right to separate themselves in zones of privilege, in part because of their right to “local control.” The outcomes of the two cases were also the same: the four Nixon justices and Stewart provided the five votes to reverse the lower court.
There was one more important similarity: in Milliken, as in Rodriguez, had it not been for Nixon’s having driven Fortas off the Court, the schoolchildren almost certainly would have won. There were now two monumental ways in which Nixon’s abuse of the powers of his office to take control of the Court had hurt the nation’s most disadvantaged schoolchildren: it denied them equally funded schools, and it prevented them from receiving a racially integrated education.
The heavily white school districts around Detroit celebrated their victory. “Joy Is Expressed in the Suburbs,” declared one headline. “Many White Parents Now See Their Children as Safe,” reported another. Conservative commentators lauded the ruling. The Wall Street Journal, in an editorial, praised the Court for resisting “the notion that a federal judge or bureaucrat could reach into a community . . . and overturn its local school system.”
Civil rights advocates saw Milliken as not only wrong on the law, but an indication that the nation’s resolve to address segregation was winding down. A New York Times editorial declared that “in refusing to fashion a remedy sufficiently broad to correct the constitutional wrong which it found, the Court’s majority has made us all, not just the black children of Detroit, the losers in the long run.” Judge J. Skelly Wright, in Washington, D.C., who had issued his own ruling about unequal educational opportunity in that city’s schools, lamented that the Court had “abandoned the ideals of Brown at the sign reading ‘City Limits.’”
Detroit schoolchildren and their supporters felt abandoned. Vera Bradley, whose family gave their name to the lawsuit, said she was “in a state of shock for a few minutes” when she heard the news. William Serrin, a former Detroit Free Press reporter, wrote an op-ed in The New York Times attacking the Court’s decision. “Integration is now a matter for Detroit only,” he said. “Thus it will be of little concern to the people of wealth and power, who live elsewhere.”
Milliken brought an end to the Brown era. As the South desegregated, the biggest obstacle to integrated education nationwide had become the district lines in the North that separated urban and suburban school districts. If the nation’s schools were ever to become truly integrated—so that, as Marshall put it, “Negro and white children” would, “in fact, go to school together”—orders like Roth’s would be necessary not only in Detroit but in Chicago, New York, and other large cities. The Court, however, had now declared that to be impossible.
If the Court had upheld Roth’s order, there undoubtedly would have been resistance, as there had been to Brown. Roth, however, had crafted a remedy order that should have done a great deal to address the white community’s concerns about busing. All of the schools and classrooms in the metropolitan region would have student bodies that were roughly reflective of the racial mix of the Detroit metropolitan area. So apprehensive white parents could be reassured that their children would, even after desegregation, attend schools that were 70 to 80 percent white. There would also be as little busing as possible. About 300,000 students in the area covered by the remedy order already took a school bus every day, and the order would have raised that to only about 310,000. The increase in actual busing was so minimal that it was hard to avoid the conclusion many blacks had already reached: that, as a saying in the black community went, “it’s not the bus, it’s us.”
Had the Court upheld Roth’s order, after the initial protests died down, the ruling might even have become popular over time. Busing to achieve racial integration was often met with outspoken opposition, but polls showed that the parents of the schoolchildren involved actually gave it high marks. A Harris poll in 1981 found that, among families whose children were bused to achieve racial integration, 54 percent of the parents said the experience was very satisfactory, 33 percent said it was partly satisfactory, and only 11 percent said it was not satisfactory. The highest levels of opposition were among people who did not have children who were bused. “It seems that the idea of busing to achieve racial balance is unpopular,” poll taker Louis Harris said. “And yet, those whose children have experienced busing report that it was a satisfactory process that worked out well in the end.”
Milliken and Rodriguez powerfully reinforced each other. Many of the nation’s most disadvantaged students were victims of both rulings: they were trapped in highly racially segregated school districts that received less than their fair share of funding. The Court had rejected their claims to equal educational opportunity in two different ways in a period of a little more than a year, each time by a 5–4 vote. When it was done, the Court had condemned millions of American schoolchildren, as Marshall said, to a “separate and inherently unequal education.”
In the following decade, the Court issued two rulings that helped disadvantaged students, both of them important but limited. In 1978, in Regents of the University of California v. Bakke, the Court upheld affirmative action in university admissions. The plaintiff, Allan Bakke, challenged a University of California–Davis Medical School admissions policy that designated places in the entering class for minority applicants. Powell, who wrote the controlling opinion for a fractured Court, said admissions policies that considered race were subject to heightened scrutiny under the Equal Protection Clause. While it was constitutional to consider race holistically as one of a group of factors, he said, setting aside specific positions for racial groups violated equal protection. Powell cited Harvard College’s admissions policy as one that used race constitutionally.
The Bakke decision helped minority students by upholding admissions policies that were bringing them into selective schools in larger numbers. If the Court had invalidated those policies, it would have become significantly more difficult for black and Hispanic applicants to gain admission, and for many poor students as well, because of the correlation between race and wealth. Bakke did not, however, offer disadvantaged students anything new. It merely allowed voluntary affirmative action policies to continue, and it did not even fully do that. As a result of the decision, many policies that were in effect—including the one at University of California–Davis Medical School that Bakke challenged—were no longer constitutional.
In 1982, the Court issued a ruling that expanded the rights of immigrant students. In Plyler v. Doe, undocumented immigrants challenged a Texas law that denied state funds to school districts for students who were not “legally admitted” to the United States and that allowed districts not to enroll those students. As a result of the law, undocumented students were charged tuition, and many families could not afford to send their children to public school.
The Court struck down Texas’s law, with Brennan writing for a 5–4 majority that again included Powell. The Court did not recognize undocumented immigrants as a suspect class, and it did not hold education to be a fundamental interest. It did say, however, that education was more important than most government benefits, because of its “pivotal role in maintaining the fabric of our society,” and that Texas did not have sufficient basis for denying it to a class of children who were not responsible for their status. Brennan also noted the harm the law would do to society “by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime.”
The right the Court recognized in Plyler, of undocumented children to attend public school for free, has made an important difference in the lives of these children. Although Texas was at the time the only state with a law barring funds for their education, if it had prevailed, other states would likely have adopted similar ones. Plyler was also, however, a narrow decision, which expressly did not hold that children have a constitutional right to education.
It was not long, however, before the Court returned to rejecting claims of students seeking greater educational opportunity. In Kadrmas v. Dickinson Public Schools, a poor rural family challenged a North Dakota law that allowed school districts to charge for transportation to school. Sarita Kadrmas, who was nine years old, attended a school sixteen miles from the family’s home. The district began to charge a $97 transportation fee for her school bus, which the Kadrmases had trouble paying. When the bus no longer stopped for Sarita, the family sued, arguing that the district’s refusal to grant fee waivers violated the Equal Protection Clause.
On June 24, 1988, the Court ruled against the Kadrmases, by a 5–4 vote. It rejected their argument that the mandatory fee violated the Equal Protection Clause, either by interfering with access to education or because of its effect on poor students. The majority opinion rejecting the Kadrmases’ claim was, to the surprise of some observers, written by Sandra Day O’Connor, the first woman to serve on the Court.
O’Connor had an unusual background for a justice. She had grown up on her family’s Arizona ranch, driving tractors and branding cattle. When she reached school age, her parents sent her to live with her grandmother in El Paso. O’Connor went on to Stanford and Stanford Law School, where she graduated third in the class Rehnquist graduated first in. O’Connor, whose only law firm job offer was to be a secretary, joined a county attorney’s office and then became an Army lawyer when her husband, John Jay O’Connor III, a Stanford classmate, did military service. The O’Connors settled in the Phoenix area, and Sandra was elected to the Arizona Senate, eventually rising to majority leader. She was elected Maricopa County trial court judge, running as a “law and order” candidate, and later appointed to the Arizona Court of Appeals.
O’Connor served eighteen months on that midlevel state court before she was nominated to the U.S. Supreme Court. In the 1980 campaign, Reagan had promised that one of his first nominees to the Court would be a woman, and when Stewart announced his intention to retire, Attorney General William French Smith assembled a list of four women. O’Connor had the most modest credentials, but she had the support of Barry Goldwater, still an influential conservative, and Rehnquist. She also charmed President Reagan at her White House interview, where she spoke about her childhood on the ranch. He announced her nomination on July 7, 1981, and the Senate confirmed her 99–0.
Although she was undeniably conservative, there were reasons to believe O’Connor might be sympathetic to the Kadrmases’ case and might give the liberal justices the fifth vote they needed for a majority. O’Connor had faced obstacles the other justices had not, especially in her early career as a lawyer. Some scholars also expected that the first woman justice would be sympathetic to women, children, and marginalized people in general. Suzanna Sherry, who was then a University of Minnesota law professor, argued in a 1986 Virginia Law Review article that O’Connor brought a “feminine voice” to constitutional adjudication. Drawing on the writings of feminist psychologist Carol Gilligan, Sherry argued that O’Connor’s discrimination rulings in her first few years revealed a “reluctance to accept conduct that condemns groups or individuals to outsider status.”
In her Kadrmas opinion, O’Connor showed no such reluctance. She said the Court’s previous rulings had made clear that poverty was not a suspect class and education was not a fundamental interest. The Plyler decision was of no help to the Kadrmases, she said, because the Court had limited it to its own “unique circumstances.” There was therefore, she said, no reason to apply heightened scrutiny to North Dakota’s law.
Like many justices who spent their entire lives in economic comfort, O’Connor exhibited little sympathy for the plight of people struggling to survive. Mr. Kadrmas worked only “sporadically” in the North Dakota oil fields, and the family’s income was around the official poverty level for a family of five. The Kadrmases were also heavily in debt. O’Connor said she had “no reason to doubt that genuine hardships were endured by the Kadrmas family when Sarita was denied access to the bus.” It was still “difficult to imagine,” she said, why the Constitution would require schools to offer transportation, even to the poorest students, “for free.”
In dissent, Marshall said Sarita had a right to a fee waiver. Even if poverty was not a suspect classification, a battle that had been lost long ago, wealth classifications still had “a measure of special constitutional significance,” he said. Similarly, even if education was not a fundamental interest, its “extraordinary nature,” he insisted, “cannot be denied.” Against these factors, Marshall argued, the district’s interest in saving a little money by denying the Kadrmas family a waiver was minimal. The Fourteenth Amendment Equal Protection Clause had been adopted, he pointed out, “to abolish caste legislation.” A law that erects barriers to education for the poor can trap them in “their current disadvantaged status,” he said, and threatens to create “a discrete and permanent underclass.”
The Kadrmas ruling was widely criticized as not only wrong, but cruel. The Washington Post’s Mary McGrory, in a column headlined “The Court Missed the Bus,” said it made “the court and North Dakota look bad.” Even North Dakota attorney general Nicholas Spaeth, the lawyer who won the case, had deep misgivings. “I wish the Court had never taken it,” he said when the decision came out. “Now they have stated some conclusions I do not agree with. An awful precedent has been set.”
At the time Kadrmas was decided, few school districts imposed transportation fees. In the years since, they have become more common. In at least thirteen states, including such large ones as California and Texas, school districts impose transportation fees, which in many cases were adopted in times when budgets were tight. A Boston Globe investigation found that in Massachusetts, a number of districts imposed transportation fees after the Great Recession began, in 2008. In some parts of the country, the fees can be more than $500 per student each school year, and some districts do not allow waivers for poor families, although there is sparse data on the subject. When researchers for the Florida Legislature interviewed six school districts across the country that charged transportation fees to students who did not live within walking distance of their schools, they found that four gave waivers to poor families, one charged reduced fees, and one charged full fees. There is considerable anecdotal evidence that school districts are imposing fees on families that cannot afford them. In some states, schools use professional bill collectors to go after parents who cannot pay. One single father in San Diego told a local newspaper that he was nearly driven into bankruptcy when the school district referred a bill for his son’s transportation to collections agents.
In the years that followed, the Court returned to the issue of school desegregation and it began to take a more aggressive stance against. Instead of merely refusing to extend Brown v. Board of Education’s principles to segregation in the North, it started to unravel the progress that had been made in integrating once segregated school systems. In 1991, in Board of Education of Oklahoma City v. Dowell, the Court made it easier for segregated school districts that had been ordered to desegregate to get their orders lifted. In a 5–3 decision, it said that desegregation orders could be dissolved as long as districts had taken all “practicable” steps to eliminate segregation—even if they remained segregated. The Court’s opinion, written by Rehnquist, was an invitation to school districts nationwide to ask courts to lift the desegregation orders against them, and it helped usher in a new era of resegregation in the South. From 1990 to 2009, 45 percent of districts under court oversight were released from their desegregation orders. That included large districts like Miami-Dade County, whose obligation to desegregate ended in 2001. After the orders were lifted, racial segregation in these districts increased significantly.
In 2007, the Court delivered a new blow to school desegregation: it went after plans that school districts had adopted voluntarily. Parents Involved in Community Schools v. Seattle School District No. 1 was a challenge to integration programs that Seattle and metropolitan Louisville, Kentucky, had put in place without any court ordering them to. Both programs used race as one factor in making school assignments, in order to promote diversity. This was not “court-ordered busing,” which conservatives had long railed against. It was communities choosing diversity in education on their own.
Parents Involved arrived at the Court not long after Roberts became chief justice and Alito replaced O’Connor, who had been more moderate than he was in cases involving race. The Court ruled 5–4 that the voluntary plans violated the Equal Protection Clause. Roberts, writing an opinion signed only by the four most conservative justices, said that using race positively to promote diversity was essentially no different from using it negatively to create the segregated school systems that the Court had struck down in Brown. He ended by declaring that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Kennedy, who provided the necessary fifth vote for the conservative majority, wrote a concurring opinion allowing that race could be used in school assignment in limited circumstances, if the programs were sufficiently “narrowly tailored”—a test he said Seattle and Louisville had not met. Still, even with Kennedy’s qualification, the ruling was a major setback to efforts by localities trying to voluntarily integrate their schools.
It was notable that in Parents Involved the Court had abandoned the reverence for local control of education that it had expressed in Rodriguez and Milliken. Breyer, writing for the four dissenters, reminded the Court that it had emphasized in those education-law landmarks “the importance of acknowledging that local school boards better understand their own communities and have a better knowledge of what in practice will best meet the educational needs of their pupils.” Now that localities were using their control over education to promote integration rather than fight it, the Court no longer deferred to school district decisions.
Stevens, in a separate dissent, underscored just how extreme the majority’s position was. He said it was his “firm conviction” that not a single “member of the Court that I joined in 1975 would have agreed with today’s decision.” It was a striking statement, given that Rehnquist and Burger—Nixon’s idea of two extremely conservative justices—were on the Court that Stevens had joined.
It is remarkable, from today’s vantage point, to realize how close the Rodriguez and Milliken plaintiffs came to winning. If they had filed their cases just a few years earlier, if Johnson had gotten his chief justice nominee confirmed, if Humphrey had won the 1968 election, or if Fortas had not resigned, the Court almost certainly would have ruled in favor of both sets of plaintiffs. If it had, American education would likely look very different.
If the Court had ruled for Demetrio Rodriguez and the other Edgewood parents and children, all fifty states would have been required to have equal funding across their school districts. Had they done so, students in poor school districts would have been considerably better off. The U.S. Department of Education has estimated that 6.6 million students nationwide are receiving less educational opportunity than they would if school funding were equalized. On average, wealthy districts across the country receive nearly 16 percent more state and local funding than poor districts to spend on teachers, facilities, and supplies. There are also profound differences by race: a recent study found that school districts that mainly serve students of color received $23 billion less a year than majority white districts, even though they served the same number of students.
There have been many studies describing the financial disparities that exist today between school districts within the same state, which are often quite large. In Connecticut, the average expenditures per student were recently $16,988, but on a district level, spending ranged from $12,828 in Danbury to $35,155 in Cornwall. In Pennsylvania, Bryn Athyn, a suburb of Philadelphia, recently spent $26,675 per student on school operations, more than three times the $8,660 spent by Mount Carmel, in the state’s coal region.
As large as the differences in funding are, they understate the gap in educational opportunity. Districts with the least money to spend often have the most expensive students to educate. Poor children are less likely than other children to start school with the necessary skills. A Brookings Institution study found that 75 percent of children from high- and moderate-income backgrounds are ready for school at age five, as compared with just 48 percent of poor children. Poor districts generally also have greater needs for bilingual educators, social workers, and other expensive specialized personnel. If school district funding levels were adjusted for the additional cost of educating higher-need students, the disparities would in most cases be significantly larger.
Journalists have written compelling portraits of how finance gaps between school districts translate into differences in educational opportunity. One Washington Post investigation of Pennsylvania’s schools, which it pronounced “the nation’s most inequitable,” found dramatic differences between a Philadelphia high school and a suburban one ten miles away. Martin Luther King High School, which is inside the city limits, had a textbook shortage. It solicited donations for music and dance classes, and only sixty of its twelve hundred students could take them. Although many students suffered from deprivation and trauma, there was no social worker. At suburban Lower Merion High School, which had 75 percent more funding, textbooks were not used much, since every student had a school-issued laptop. The arts program included photography, ceramics, and jewelry-making classes. Lower Merion also had a social worker, though the need for one was not as great.
There is evidence that school finance reform, when it does occur, has a measurable impact on student achievement and life outcomes. One study by economists at the University of California–Berkeley and Northwestern University compared test scores in twenty-six states that had increased funding for poor districts with twenty-three states that had not. It found that states that directed more money to poor districts showed significantly greater academic improvement. The impact was at least twice as much per dollar than from another popular reform, decreasing early-grade class sizes. Greater educational spending has also been shown to have a positive effect on students’ futures. One study found that for students from low-income families, a 20 percent increase in per-pupil spending for all twelve school years was associated with nearly a year more of completed education and a 20-percentage-point reduction in the annual incidence of adult poverty.
If Milliken had come out differently, it might have changed the nation’s racial trajectory. If Roth’s remedy order had been implemented, it could have ended the widespread model of overwhelmingly minority urban school districts surrounded by largely white suburban ones. States would have been forced to draw up assignment plans that ensured that all children attended schools that reflected the racial composition of their overall metropolitan area. The result could have been decades of integrated education across the country.
The best evidence that a transformation of this kind could have been done successfully is that it has been. While Detroit’s metropolitan-area plan was being overturned by the Court, there was a similar court-ordered plan for Louisville. The Louisville plan combined the city school system, which was about evenly divided between black and white students, with suburban schools that were overwhelmingly white. In the new urban-suburban school district, elementary schools were required to be between 12 and 40 percent black, and secondary schools to be between 12 and 35 percent black.
Louisville’s plan, which was implemented in 1975, required 23,000 students to be bused to achieve racial balance. There was resistance, including protests by the Ku Klux Klan, but the plan was carried out. It worked the way its supporters had hoped, and black achievement increased substantially, by a wide variety of measures. From 1975 to 1977, black second graders’ reading scores improved from the twenty-fifth to the thirty-fourth percentile and black fifth graders’ scores rose from the twenty-fifth to the thirty-sixth percentile. The Louisville integration order set the Louisville schools up for success, particularly for the most disadvantaged students, while Milliken set the Detroit schools up for continued failure.
If the Court had upheld Roth’s order, the whole country would have had to redraw school districts in the way Louisville did. It would have meant taking seriously the Constitution’s promise of racial equality and applying Marshall’s standard for success: that “Negro and white children, in fact, go to school together.” The transformation would not have been easy, but it would have charted an alternative path for American public education.
The combination of Milliken, which prevented school desegregation litigation from moving north, and the Court’s unraveling of desegregation in the South in cases like Board of Education of Oklahoma City v. Dowell, has helped to produce America’s current reality: extremely high levels of school segregation. Racial isolation is higher, by some measures, than at the time of the civil rights movement. One study calculated that in 1970–71, the average black student was in a school that was 32.0 percent white. By 2009–10, the average black student was in a school that was 29.2 percent white.
There is evidence that school desegregation, like higher spending levels, affects student achievement. A study by University of California–Berkeley economist Rucker Johnson found that black students who were affected by court-ordered desegregation in all twelve of their school years had an increase in educational attainment of about a full year. They were also significantly more likely to graduate from high school. For black students, attending integrated schools was also associated with attending a higher-quality college, being in better health as an adult, and being less likely to end up in prison, among other positive outcomes. The study found that, by these same measures, desegregation has minimal to no negative effects on whites.
In his Rodriguez dissent, Marshall warned that the Court was taking the nation away from its “historic commitment to equality of educational opportunity” and toward a system that deprives children of “the chance to reach their full potential.” Decades after Rodriguez and Milliken, the nation has ended up where he feared. American education today is marked by large disparities not just in educational opportunities, but also in outcomes.
The socioeconomic achievement gap, which the Rodriguez plaintiffs wanted to eliminate, remains large. Family income is still one of the strongest predictors of how well children do in school. Racial achievement gaps—which the Milliken plaintiffs hoped to end—have also persisted. These gaps exist by a wide array of measures. White children score significantly higher than black and Latino children on elementary and high school reading and math tests. They are also doing considerably better in one educational measure that is particularly critical to positive life outcomes: graduating from high school.
These socioeconomic and racial gaps carry over to college. In families with incomes in the top one-quarter, 58 percent of children earned bachelor’s degrees by the age of twenty-four, according to a University of Pennsylvania study. In families in the bottom one-quarter, just 11 percent did. There are also large gaps by race, with blacks and Hispanics significantly less likely than whites to earn a bachelor’s degree.
These large and growing educational disparities are helping to drive inequality in America. The World Inequality Report 2018, which was produced by a team that included Thomas Piketty, cited “massive educational inequalities” as one of the two primary causes of the United States’ “income-inequality trajectory.” Educational inequality is of particular concern because of the powerful impact it has not only on the present but on the future. In a study of the academic achievement gap between high- and low-income Americans, Stanford University education professor Sean Reardon identified a “feedback mechanism” that decreases intergenerational mobility. “As the children of the rich do better in school,” he said, “and those who do better in school are more likely to become rich, we risk producing an even more unequal and economically polarized society.”