Beginning in the early 1970s, over the course of slightly less than a decade, the Supreme Court explored whether the Fourteenth Amendment’s Equal Protection Clause constrained schools’ operations—beyond the racial context—on three separate occasions. First, in San Antonio Independent School District v. Rodriguez, the Supreme Court in 1973 rejected the claim that the Constitution prohibited states from funding public schools in a manner that yielded massive disparities in per pupil expenditures between areas with high property values and areas with low property values. Next, in Vorchheimer v. School District of Philadelphia, the Supreme Court in 1977 declined to forbid localities from maintaining at least some public schools that limited admission to either male or female students. Third, in Plyler v. Doe, the Supreme Court in 1982 invalidated a Texas measure that authorized localities to exclude unauthorized immigrants from attending public schools altogether. Collectively, this trio of decisions can meaningfully be understood as fleshing out both the requirements and the limitations of the nation’s constitutional commitment to school equality, most resoundingly articulated in Brown v. Board of Education.
Even taken on their own terms, however, these three cases touched on some of the most combustible issues in all of American society: fiscal inequality, sex separation, and unauthorized immigration. Perhaps predictably, then, all three of these divisive issues also elicited close divisions at the Supreme Court—as Rodriguez and Plyler v. Doe each produced 5–4 margins, and Vorchheimer left the Court deadlocked 4–4 (with one justice recused). These close divisions underscore the highly contingent nature of constitutional law, as a single changed vote in any of the cases would have altered the outcome and hence the legal framework governing public schools on a particularly volatile topic.
This equal protection trilogy merits renewed scrutiny now because each decision reveals a remarkable and underappreciated legacy of the Supreme Court’s constitutional decisions involving schools. Following Rodriguez, school finance reformers directed their litigation efforts toward state supreme courts, which have on balance proven quite receptive to those claims. The aftermath of Rodriguez reveals thus that, even if federal courts prove initially hostile to rights claims under the federal Constitution, reformers can attain victories at least sometimes by invoking state constitutional provisions. Following Vorchheimer, although single-sex public schools dwindled in the late 1970s and the 1980s, the institutions witnessed a major resurgence beginning in the 1990s that has continued through the present. This revival of single-sex public schools demonstrates that the Supreme Court, even through its refusal to stamp out a practice that appears to be vanishing, shapes the educational landscape simply by leaving an issue on the table. Recently, the issue of sex classifications in schools obliquely returned to the Supreme Court’s docket, when it agreed to hear—but did not ultimately resolve—a case addressing whether schools can exclude transgender students from accessing restrooms congruent with their gender identities. Following Plyler v. Doe, various jurisdictions around the nation have continued seeking to exclude unauthorized immigrants from public schools via both formal and informal mechanisms. Esteemed law professors in recent years have attempted to dismiss the opinion’s significance because only Texas had enacted such legislation by 1982. But this criticism misconstrues Plyler v. Doe as—properly understood—it rests among the most egalitarian, momentous, and efficacious constitutional opinions that the Supreme Court has issued throughout its entire history.
SAN ANTONIO INDEPENDENT SCHOOL DISTRICT V. RODRIGUEZ: CONTESTING FUNDING INEQUALITIES
In 1968, in a destitute neighborhood of San Antonio, Texas, called Edgewood, Demetrio Rodriguez grew dissatisfied with the education that his children were receiving at the local elementary school and devoted himself to the task of improving it. Rodriguez—a World War II veteran and third-generation Texan—had long ago received an object lesson in the importance of schooling. Although his parents were migrant farmworkers in the Rio Grande Valley, they sent six-year-old Demetrio more than two hundred miles north to live with an uncle in San Antonio, where they felt he would acquire a better education and the opportunity for a better job. The familial sacrifice paid off, as Rodriguez grew up to secure a steady position working in the sheet metal division at Kelly Air Force Base. Yet as Rodriguez now surveyed the school his own children attended, it was clear that Edgewood Elementary left much to be desired: the building itself had become severely dilapidated; classrooms lacked even basic supplies; and nearly half of the instructors relied upon emergency work permits because they lacked teaching certification.
The school’s deficiencies, Rodriguez would subsequently conclude, stemmed from Edgewood Independent School District’s comparatively low level of expenditures per pupil. Although Edgewood taxed property at the highest rate in the metropolitan area, the meager property values in the overwhelmingly Mexican American district yielded only $26 per pupil—a figure that contributions from the state and federal governments increased to $356 per pupil. Across town, in the predominantly white Alamo Heights Independent School District, the funding situation was dramatically different. Despite taxing property at a considerably lower rate than Edgewood, Alamo Heights’s affluent property values produced $333 per pupil, which state and federal contributions raised to $594 per pupil. The upshot of this financing system meant that Edgewood expended on its students only 60 percent of the amount that Alamo Heights expended on its students. Accordingly, Rodriguez agreed to join a lawsuit contending that such school-funding discrepancies—which existed not only all over Texas but across the country—violated the Fourteenth Amendment’s Equal Protection Clause. Rodriguez’s decision to contest the state’s financing method angered some of his fellow Texans, as a few co-workers hurled accusations that the lawsuit was motivated by communism and—far more distressingly—a few vandals hurled rocks through the windows of his family’s home.1
In the years preceding the Supreme Court’s resolution of San Antonio Independent School District v. Rodriguez, school finance reformers received several favorable signs regarding a legal challenge. In 1971, Newsweek noted that “many legal experts consider [it] likely” that the Court would invalidate Texas’s method of school funding.2 Notably, this understanding extended even to sophisticated analysts who dreaded this prospect, rather than dreamed of it. Writing in The University of Chicago Law Review in 1968, Professor Philip Kurland confidently—and woefully—predicted, “I should tell you…, with some assurance, that sooner or later the Supreme Court will affirm the proposition that a State is obligated by the equal protection clause to afford equal educational opportunity to all of its public school students.”3 This prediction was sound, Kurland maintained, because such a decision “is in keeping with the spirit of the times”—namely, the Warren Court’s dual emphases on “egalitarianism” and the “expansion of judicial power.”4 Following Rodriguez’s lower court victory, moreover, The Wall Street Journal thought that it spotted the same, unwelcome handwriting on the wall: “[T]here is every likelihood that the federal [judiciary] will seek to involve itself more deeply in the financing and administration of public schools, moving the locus of power still farther away from local communities. The homogenization of our society will thus have proceeded farther to the detriment of pluralism.”5 The emerging trend in lower courts offered reformers additional reason for optimism: apart from the invalidation of Texas’s school-financing method, judicial bodies had already set aside the methods in no fewer than five other states prior to Rodriguez.6
Yet proponents of school-funding reform in the early 1970s also encountered many contrary signals, instilling doubt that the Court would actually validate their efforts. The enormous scale of the requested litigation reform stood prominent among the reasons for pessimism: if the Court rejected Texas’s school-financing method, after all, that decision would have—setting aside the recent wave of lower court invalidations—upended the system in forty-eight additional states. While the Court might always be expected at least to hesitate when confronting a legal challenge to such a pervasive practice, the intricacies and uncertainties of school financing stood only to intensify the typical reservations. Even some firmly liberal voices expressed fears that invalidating school-financing schemes would both introduce novel, unknown harms and fail to improve substandard academic achievement in property-poor areas. On funding reform’s potential unintended consequences, an article in The New York Times noted, “[T]he remedies that have been proposed so far seem to have led many people to question whether they should trade the present system for a new one that might create a whole new set of problems.”7 On the potential intractability of low academic achievement, a different Times article observed, “In the view of many, the true sources of educational deficiencies are rooted in the more basic inequalities among people, and no amount of reshuffling of tax dollars, however just, is going to change that.”8
Relatedly, several observers contended before Rodriguez that reallocating school finances might yield nothing more than widespread academic mediocrity. Newsweek prominently struck this theme, as it commented, “[I]f equalization of school spending is uniformly enforced, it could well lead to uniformly mediocre education throughout the state.”9*1 This fear of mediocrity found expositors in exclusive zip codes across the country—ranging from Beverly Hills, California, to Scarsdale, New York. The mayor of Beverly Hills—which spent twice as much money per pupil as neighboring communities, even though its tax rate reached only half as high—expressed this concern succinctly: “The way to lift the bottom isn’t to drag down the top.”10 The president of Scarsdale’s Board of Education adorned this anxiety somewhat, but the underlying message remained much the same: “There’s a fundamental conflict between what’s good for everyone and the natural desire of individuals to do the best they can for their own children. We feel a responsibility for others, but we do want to protect the kind of quality our people have come to expect.”11
These conflicting stances on the desirability of school-financing reform that swirled within the larger American society can also be understood as appearing within the Nixon administration’s attitude toward Rodriguez. As a formal matter, the administration watched Rodriguez unfold from the sidelines, as Nixon’s solicitor general declined to file an amicus brief in the case. This formal silence on the case appears to have been driven not by studied equivocation but by portions of Nixon’s political oratory that veered toward fiscal egalitarianism in the educational context. Thus, in the course of demanding a moratorium on busing for purposes of racial integration in 1972, Nixon intoned, “It is time for us to make a national commitment to see that the schools in central cities are upgraded so that the children who go there will have just as good a chance to get a quality education as do the children who go to school in the suburbs.”12 While Nixon’s call for a busing moratorium sought primarily to ease suburban anxiety about the prospect of interdistrict racial integration, his attendant talk of increasing educational opportunity in the urban centers helped to prevent the position from appearing callous. Nixon did not thus sincerely intend to throw down the gauntlet for school-funding reform. But it would have been extremely delicate for his administration to file a brief rebuffing that cause only one year later, even if his sympathies did in fact align more with the status quo than with the reformers. This understanding of the Nixon administration’s official noninvolvement with Rodriguez finds support in an additional public statement that the president made as the case wound its way to the Supreme Court in 1972. Nixon announced there was “one fundamental principle with which there can be no compromise: local school boards must have control over local schools.” Astute contemporaneous observers linked Nixon’s exaltation of local control to the swelling controversy over school financing.13
In 1973, the Supreme Court in Rodriguez, by a 5–4 margin, rejected the contention that Texas’s system of school financing violated the Constitution. In a feature of the decision that garnered widespread notice, all four of President Nixon’s appointees to the Court voted with the majority to uphold the funding method.*2 Writing for the Court in Rodriguez, Justice Lewis F. Powell Jr. first rejected the contention that Texas’s method of financing schools unconstitutionally discriminated against poor people. In addition to noting that the statute contained no language expressly grouping people on the basis of wealth, Powell entertained the possibility that some indigent citizens might in fact live in property-rich school districts and vice versa. Justice Powell also resisted the contention that the Constitution protects education as a fundamental right. The Constitution protected that right, Rodriguez had claimed, because it was integrally connected to exercising the freedom of speech and to participating in a constitutional republic. But Powell found this argument unavailing—at least in the context of Edgewood’s students. “[W]e have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice,” Powell opined. “That these may be desirable goals of a system of freedom of expression and of a representative form of government is not to be doubted [but] they are not values to be implemented by judicial intrusion into otherwise legitimate state activities.”14
Despite this dismissal of Rodriguez’s fundamental right claim, Powell’s opinion did entertain the possibility that some extreme conditions may give rise to a constitutional violation. Whereas Edgewood’s students contested merely relative differences in expenditure levels, Powell noted the Constitution could at least conceivably be violated either “if a State’s financing system occasioned an absolute denial of educational opportunities to any of its children,” or if a “charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment” of speech and political participation.15 Both of these conditions would loom large in subsequent education cases.
Perhaps of even greater significance than these doctrinal niceties, however, Powell’s opinion in Rodriguez emphasized his predominant themes in cases involving constitutional law and public schools, as he asserted that federal judges possessed neither the competence nor the authority to review a decision that properly belonged to local officials. “[W]e stand on familiar ground when we continue to acknowledge that the Justices of this Court lack both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues,” Powell wrote.16 Local control over school funding was paramount, Powell contended, because it meant providing an “opportunity [to participate] in the…process that determines how…local tax dollars will be spent,” and that “[e]ach locality is free to tailor local programs to local needs.”17 Striking the pose of judicial humility, Powell observed that intervening in the school finance arena would be particularly unwise where the consequences of intervention would be massive and the proposed remedies were so novel. “We are unwilling to assume for ourselves a level of wisdom superior to that of legislators, scholars, and educational authorities in 50 States, especially where the alternatives proposed are only recently conceived and nowhere yet tested,” Powell wrote.18 In closing, Powell insisted that Rodriguez “not…be viewed as placing its judicial imprimatur on the status quo,” but instead merely as indicating “the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them.”19
In dissent, Justice Thurgood Marshall denounced Rodriguez as a betrayal of Brown v. Board of Education’s robust understanding of the connection between education and the Equal Protection Clause. Although Brown arose in the context of racially segregated schools, the opinion also contained language that transcended racial inequality, including its observation that “where the state has undertaken to provide [education], it [ ] is a right which must be made available to all on equal terms.”20 Such statements enabled Marshall to contend that his colleagues in Rodriguez were unraveling his greatest achievement as an attorney: “[T]he majority’s holding can only be seen as a retreat from our historic commitment [in Brown] to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens.”21 Developing this theme linking the responsibilities of citizenship to schooling, Marshall lambasted the Court for demonstrating an unduly cramped notion of fundamental rights. Rodriguez erred by not placing the right to education in this category, Marshall asserted, even though the Court had previously issued opinions acknowledging fundamental rights that the Constitution did not explicitly enunciate—including the right to procreate and the right to appeal a criminal conviction. In a nation predicated upon the ability of citizens to govern themselves effectively, Marshall at times seemed to wonder, what could possibly supersede education’s importance? “Education serves the essential function of instilling in our young an understanding of and appreciation for the principles and operation of our governmental processes,” Marshall wrote. “Education may instill the interest and provide the tools necessary for political discourse and debate. Indeed, it has frequently been suggested that education is the dominant factor affecting political consciousness and participation.”22
Marshall further claimed that if the Court were actually committed to promoting local control over education, as Powell maintained, that consideration militated in favor of invalidating Texas’s school-funding method. As Marshall explained, that financing method safeguarded local control only for those wealthy enough to purchase it:
If Texas had a system truly dedicated to local fiscal control, one would expect the quality of the educational opportunity provided in each district to vary with the decision of the voters in that district as to the level of sacrifice they wish to make for public education. In fact, the Texas scheme produces precisely the opposite result. Local school districts cannot choose to have the best education in the State by imposing the highest tax rate. Instead, the quality of the educational opportunity offered by any particular district is largely determined by the amount of taxable property located in the district—a factor over which local voters can exercise no control.23
In a testament to the familiar adage holding that whenever God closes a door, He also opens a window, the one hundredth—and final—footnote of Marshall’s opinion insisted that Rodriguez should not be mistaken to mean that all hope was lost for judicial intervention on school financing. “[N]othing in the Court’s decision today should inhibit further review of state educational funding schemes under state constitutional provisions,” he wrote.24 This parting suggestion to seek judicial remedies in state courts, rather than federal courts, heralded the future of school finance reform.
Newspaper editorial boards across the ideological spectrum commended Rodriguez. The Wall Street Journal asserted that a contrary decision in Rodriguez “would have cast great doubt over the principle that local officials have…control over schools,” potentially triggering unwelcome and “sweeping changes in the nation’s social and political structure” that would exceed the judiciary’s authority. “[T]he High Court cannot by edict dictate social justice,” the Journal asserted. “It is such a subtle and elusive condition that it can only be achieved by honest and forthright interactions among individuals in their own communities.”25 In a particularly cynical evaluation, the Chicago Tribune praised the Court for rejecting what the newspaper dismissed as merely a ruse designed to raise teachers’ salaries.26 Praise for Rodriguez, however guarded, also appeared in more liberal publications. The New York Times, for example, commented that vindicating the school-financing claim in Rodriguez “would raise questions about the future control…of public education,” and asserted that the opinion’s critics were “too simplistic” because they “ignore[d] the complexities of school support.”27 The Washington Post added that the opinion “may be described as a very cautious one, in an issue in which caution is essential,” and that it appropriately “drew back from the lower court’s far too easy assumptions.” The Post contended that the appropriate venue for pursuing school-funding reform was the statehouse, not the courthouse, and avowed further, “Neither the Court, nor anyone else, has been able to devise a single nationwide rule of equality that would not create new kinds of injustice, and threaten new restraints on the improvement of American education.”28
Back in Texas, Rodriguez caused many observers to exhale in relief. “It’s the best news I’ve heard in many a week,” the superintendent of Dallas schools stated in reaction to the Court’s decision. “Ain’t it wonderful,” another Dallas school official rejoiced.29 In Austin, Governor Dolph Briscoe, while demonstrating greater equanimity, left no doubt that he endorsed the Court’s refusal to interfere with school funding. “I have said on many occasions that I believe that every child should have the opportunity for a quality education, regardless of where he lives,” Briscoe noted. “But I also believe in local control and participation.”30 In San Antonio, at least one person seized upon Rodriguez as an occasion to heap ridicule upon the reproductive decisions of the case’s lead plaintiff and those of other indigent citizens. In a breathtaking letter to the editor of the San Antonio Express, one Ruth Hill admonished,
Instead of the 2.2 average which has been suggested for population control, many of the “poor” have 10 and 12 children to be educated by others….Demetrio P. Rodriguez…has 5 children, 2.8 more than he should have produced for population control. Should the taxpayers be punished for his lack of restraint? After producing two offspring, parents should be taxed instead of being subsidized; then, no longer would it be “cheaper by the dozen”—for the other man to support.31
For his part, Demetrio Rodriguez pronounced himself “shocked and stunned” by the ruling and attributed the unforeseen, devastating loss to President Nixon’s influence on the Court: “I cannot avoid at this moment feeling deep and bitter resentment against the supreme jurists and the persons who nominated them to that high position. The poor people have lost again.”32
Examining Rodriguez today, more than four decades after it appeared, the opinion’s most remarkable dimensions arise from temporal considerations. Had the question of school financing reached the Supreme Court a few years before Rodriguez—at the tail end of the Warren Court—it seems probable that a majority would have voted to invalidate the measure. In comments to the San Antonio Express-News, the attorney who represented Rodriguez embraced this conclusion on the decision’s twenty-fifth anniversary: “I would never have dreamed of filing a case like that before a Supreme Court that existed when I argued before the court. When I filed the case in [district court in] 1968, the Court was not as conservative as the one that I argued before.”33 The reason that the funding reformers’ chance of prevailing dimmed over that five-year lag is, of course, attributable to the personnel changes that occurred at the Court during that period. President Nixon’s uncommonly good fortune of placing four justices on the Court—in just six years of office—seems to have been decisive in Rodriguez. If President Lyndon Johnson’s nomination of Justice Abe Fortas to fill Earl Warren’s seat as chief justice had succeeded in 1968—or even if Fortas had not been forced to resign from the Court due to a scandal in 1969—it seems virtually assured that school-funding methods around the nation would have been invalidated. Rodriguez thus casts into stark relief how the answer to significant constitutional questions can shift, even within relatively short periods of time, depending upon the Court’s composition. Conscientious jurists who bring different perspectives to the position often reach divergent conclusions about what the Constitution permits and what it requires when interpreting the document’s textually indeterminate provisions. Seldom have those competing constitutional visions been more vividly displayed than in Rodriguez.34
The passage of time, however, renders it less astonishing that Rodriguez lost his claim, and more astonishing that he managed to secure the votes of four Supreme Court justices in the first instance. Although the Court briefly contemplated serious engagement with issues of economic inequality during the 1960s, that moment now appears quite removed from the perspective of modern mainstream liberal constitutionalism. If the issue of school-funding discrepancies were to arrive at the current Supreme Court, it seems entirely plausible that challengers to those measures would find not a single justice who agreed that the Constitution prohibits arrangements resembling those contested in Rodriguez.
Consider the assessments of only two of the many prominent legal liberals who can be viewed as accepting—to varying extents—the bottom-line appraisal that the libertarian-inclined professor Richard Epstein recently offered: “The wisdom of [Rodriguez] seems beyond question.”35 In a radio interview from 2001, the then state senator (and University of Chicago Law School lecturer) Barack Obama described the Court in Rodriguez as “basically slap[ping] those kinds of [funding] claims down and say[ing], ‘You know what—we as a court have no power to examine issues of redistribution and wealth inequalities with respect to schools. That’s not a race issue, that’s a wealth issue, and something we can’t get into.’ ” Although that description may initially sound pejorative, Obama proceeded to make clear that he firmly endorsed Rodriguez’s rationale that issues of wealth inequality belonged in statehouses. “Maybe I am showing my bias here as a legislator as well as a law professor,” Obama said, but “the [judiciary] just isn’t structured that way.”36 In 2006, five years after Obama’s statements, Professor Goodwin Liu published an article in The Yale Law Journal contending that public-school-funding disparities ought to be alleviated but charging Congress—rather than the federal judiciary—with chief responsibility for undertaking that mission. Liu, who joined the California Supreme Court in 2011, contended that the enforcement power conferred on Congress by Section 5 of the Fourteenth Amendment obligated the legislative branch to enact a law “ensur[ing] a meaningful floor of educational opportunity throughout the nation.”37
Some readers may object that both Obama and Liu staked out these positions when they had their sights trained on attaining higher offices. On this skeptical account, their statements should be discounted because they reflect not their genuine constitutional views but different sorts of political calculations. Even if we concede this account’s accuracy, however, it is nevertheless revealing that both men—whose career prospects depended on remaining in good standing with the tenets of mainstream legal liberalism—took Rodriguez as granted, rather than as an affront.
Although Rodriguez succeeded in closing the federal courts to funding challenges for the next few decades, those suits eventually found a more receptive home in state supreme courts, where plaintiffs successfully invoked state constitutional provisions involving education to require more egalitarian school financing. In 1989, the Texas Supreme Court issued one of the nation’s many such decisions in a case that originated in Edgewood. Demetrio Rodriguez found the long-awaited day declaring Texas’s school-financing method invalid to be an emotional, even melancholy, experience. Speaking to a rally at an Edgewood high school, Rodriguez, who was by then a grandfather, stated, “I cried this morning because this is something that has been in my heart….My children will not benefit from it….Twenty-one years is a long time to wait.”38 In 1991, two years after Rodriguez’s speech, Professor Mark Yudof offered the following witticism: “[S]chool finance reform is like a Russian novel: it’s long, tedious, and everybody dies in the end.”39
In truth, however, the battle over school finance reform in Texas’s state courts had only just begun. The issue returned on what seemed to be a near-constant basis for decades thereafter because of the judicial approach adopted by the Texas Supreme Court. Rather than imposing any particular formula, the Texas Supreme Court—as was true in many of its sister institutions around the nation—simply invalidated the current financing scheme and required the legislature to devise a new approach.40 In 2005, this dynamic prompted Demetrio Rodriguez to contend that the legal quest for school-financing reform was a job that “you never get finished with.”41 Ten years later, the Texas attorney general similarly called the saga “a never-ending cycle of perpetual litigation.”42 Over time, however, dissatisfaction with the school-financing system has shifted from property-poor areas to property-rich areas, whose residents frequently deride the Texas legislature’s revised financing method as the “Robin Hood” plan.43
Some observers have questioned whether the legal victories school finance reformers achieved in state courts have translated into improved educational outcomes for students in previously underfunded schools. To be clear, those legal victories have frequently made a massive difference in per pupil expenditures in many states. In Texas, for example, beginning in the 1990s, the state’s revised method of allocating money for public education succeeded in dramatically narrowing the gap between expenditures per pupil in Edgewood and in Alamo Heights; indeed, in 2008, Edgewood spent slightly more per pupil than Alamo Heights. Yet some observers emphasize that this altered financial landscape has not meaningfully improved the educational prospects for Edgewood’s students. In this vein, Professor Richard Schragger recently contended, “[S]tudents who attend schools in Alamo Heights and Edgewood are in about the same place as they were in 1968. The chances of a high school student from Edgewood attending college is under ten percent; the chances of a high school student from Alamo Heights attending college is ninety-six percent.”44
Other observers counter, however, that these sorts of comparisons place an inordinately high burden on school finance reformers to demonstrate success. A great number of factors shape students’ academic performance, and increased funding alone should not be expected to cure—as if by magical elixir—all that ails students at low-achieving schools. Even if school-funding reform does not completely eliminate performance gaps between students at public schools that once had large financing disparities, these observers further insist, it would nevertheless be valuable if reform reduced the gap between these two groups, by lifting the academic performance of students at the formerly ill-funded schools. Consistent with this narrative, two of the most sophisticated studies of school financing recently found that increasing funding to previously underfunded schools yielded statistically significant academic benefits.45
Still other observers insist that long-standing debates about the efficacy of school finance reform are wholly irrelevant to the basic legal question. In this argument’s strongest form, these observers assert that even if students at formerly underfunded schools demonstrate not one iota of improved academic performance as a result of a more equitable funding arrangement, that would in no way mean that these deserving students were less entitled to the increased expenditures. Proponents of this non-consequentialist position sometimes advocate for this view by posing a rhetorical question: Would the Supreme Court in Brown v. Board of Education have affirmed racially segregated schools if the leading sociologists and psychologists of the day suggested that Jim Crow schools did not actually harm black children? The question’s force is meant to suggest that school finance reform—like racial segregation—should be evaluated squarely as a legal issue rather than being permitted to dissolve into a referendum on imperfect, hotly disputed social science.46
Although school-financing issues have predominantly appeared in state courts post-Rodriguez, the question of whether public schools can operate so poorly as to render them unconstitutional recently returned to federal court. In September 2016, a group of students who attend woefully performing public schools in Detroit, Michigan, sued Governor Rick Snyder in federal district court, contending that the Constitution protects a fundamental right to literacy. The students asserted that Michigan has deprived them of this fundamental right by sending them to public schools equipped with inadequate desks, textbooks, teachers, and even heat (among many other maladies), which combine to produce abysmal pupil outcomes. At one particularly grim Detroit elementary school, for instance, not a single sixth-grade student could read at a minimally proficient level. The lawsuit seeks to capitalize upon Rodriguez’s language allowing that schools may infringe upon a fundamental right if they fail to “provide each child with an opportunity to acquire the basic minimal skills necessary for” participation in democratic society.47*3 Michigan has shirked its responsibility for public education in Detroit’s overwhelmingly black schools, the students contend, even though students in other, whiter parts of the state receive first-rate educations. Although the district court has yet to resolve the lawsuit, it has already garnered high-profile media attention, and some eminent legal scholars—including Geoffrey Stone and Laurence Tribe—have deemed the students’ constitutional claim persuasive. But whatever the district court judge determines, the dispute seems almost certainly headed to the federal appellate court and may even ultimately be taken up by the Supreme Court. And if the Court acknowledged a fundamental constitutional right to literacy, that decision could well have momentous consequences for failing public schools, not only in Detroit, but around the country.48
VORCHHEIMER V. SCHOOL DISTRICT OF PHILADELPHIA AND THE RETURN OF SINGLE-SEX PUBLIC SCHOOLS
In the spring of 1974, when Susan Vorchheimer completed the ninth grade at a junior high school for gifted pupils in Philadelphia, Pennsylvania, she not only received the designation of “most outstanding student” but also earned awards in a host of individual subjects—including English, geometry, history, and science. After she had amassed such a spectacular record, one might think that Vorchheimer would have been guaranteed admission to Central High School, the city’s most elite public school. Vorchheimer dutifully toured Central as a ninth grader to ensure that the institution felt like the right fit, and she emerged convinced that she would thrive within its rigorous academic atmosphere. Central was, by all accounts, an easy school to admire. Its legacy extended back to 1836; its exceptionally well-credentialed faculty would embarrass those at even many private boarding schools; its science program held particular renown, as Central became the first high school in the country to feature its own planetarium; its graduates received not mere diplomas but bachelor of arts degrees as symbols of their academic achievement; and its alumni base included distinguished artists, lawyers, economists, and industrialists. But this august institution rejected Vorchheimer’s application for the simple reason that her sex rendered her ineligible to attend the all-male school. District officials observed that Vorchheimer could instead decide to attend the Philadelphia High School for Girls—the city’s only school other than Central that received the “academic” designation. Vorchheimer’s tour as a prospective student of the all-female alternative to Central, however, left her deeply apprehensive. “I just didn’t like the impression [Girls High] gave me,” Vorchheimer declared. “I didn’t think I would be able to go there for three years and not be harmed in any way by it.” Accordingly, Vorchheimer opted to attend a high school that, while it lacked the “academic” marker, did at least enroll members of both sexes. In addition, Vorchheimer elected to challenge the school district by filing a lawsuit contending Central’s exclusion of female students violated the Equal Protection Clause.49
Publicity surrounding this litigation unleashed a tsunami of abuse upon the Vorchheimer home in the form of harassing phone calls and missives. Vorchheimer’s father, for instance, fielded prank callers questioning the “real sex” of his child. One menacing postcard addressed to Vorchheimer, purporting to be sent by “Central High Alumni,” stated, “Welcome to our school, and we hope you break your goddamn neck, you fresh, little trouble maker.” Although this postcard’s origins were uncertain, the actual alumni association did send Vorchheimer an unwelcoming (if far more restrained) message, as the nine-thousand-member organization formally opposed her admission, claiming it threatened Central’s “proven ability” to provide “quality education…[to] young men, many of whom become prominent in our society.” For his part, Central’s principal, Howard Carlisle—who in the school’s idiosyncratic parlance used the title “President”—justified his opposition to admitting Vorchheimer by contending the school’s pedagogical approach required an all-male student body. “Our program is geared to a man-to-man relationship,” Carlisle explained. “Our English students, for instance, read Chaucer in the unexpurgated edition, and I’m not sure that would or could be done with Susan in the class. We try to treat our boys as adults and in a coed class, there is certain language that just could not be used.”50*4 Carlisle did not, however, attempt to explain how Central’s female instructors—who made up nearly one-fifth of the school’s total faculty—went about establishing “a man-to-man relationship” with their students.
Although Vorchheimer prevailed in district court, a divided panel of the U.S. Court of Appeals for the Third Circuit reversed that decision in 1976 and upheld Central’s all-male policy. Writing for the majority in Vorchheimer v. School District of Philadelphia, Judge Joseph Weis opened the opinion by framing the legal question presented in the most sweeping terms available. Rather than endeavoring to answer the comparatively narrow question of whether Philadelphia’s most prestigious public high school could exclude qualified female applicants, Judge Weis opened, “Do the Constitution and laws of the United States require that every public school, in every public school system in the Nation, be coeducational?” The Third Circuit proceeded to answer that broad query in the negative and portrayed itself as defending the ability of school boards to offer a diverse set of schooling arrangements to students and their families. Granting Vorchheimer’s desire to attend Central would expand her “freedom of choice,” Weis allowed, but it would simultaneously contract the options available to students interested in selecting a single-sex learning environment. “If she were to prevail, then all public single-sex schools would have to be abolished,” Weis maintained. “The absence of these schools would stifle the ability of the local school board to continue with a respected educational methodology. It follows too that those students and parents who prefer an education in a public, single-sex school would be denied their freedom of choice.”51 Weis depicted Central and Girls High as equivalent institutions, at least in broad strokes, though even he conceded that Central’s science facilities were superior. Finally, Weis rejected any analogy between sex segregation and racial segregation in the educational context, because the former, unlike the latter, has “its basis in a theory of equal benefit and not discriminatory denial.”52
In dissent, Judge John Gibbons wrote an impassioned opinion where he repeatedly likened the validation of Central’s exclusionary admissions policy to the Supreme Court’s validation of racially segregated railcars in Plessy v. Ferguson. Invoking Brown v. Board of Education’s repudiation of Plessy in 1954, Gibbons vented, “I was under the distinct impression…that ‘separate but equal’ analysis, especially in the field of public education, passed from the fourteenth amendment jurisprudential scene over twenty years ago.”53 Gibbons further contended that students who attended either Central or Girls High only on a “voluntary” basis should hardly be relied upon to preserve Philadelphia’s arrangement. “Vorchheimer’s choice of an academic high school was…‘voluntary,’ but only in the same sense that Mr. Plessy voluntarily chose to ride the train in Louisiana,” Gibbons wrote. “Philadelphia, like the state of Louisiana in 1896, offers the service but only if Vorchheimer is willing to submit to segregation. Her choice, like Plessy’s, is to submit to that segregation or refrain from availing herself of the service.”54
Although the Supreme Court accepted Vorchheimer’s petition to address her exclusion from Central, the Court ultimately proved unable to do so. In April 1977, after hearing oral argument a few months earlier, the Court announced that it had deadlocked 4–4, with Justice William Rehnquist recused—apparently because he missed oral argument. As is customary when the Court divides equally, it produced no written opinions in Vorchheimer’s case and simply issued an order leaving the decision below intact that created no binding precedent at the Supreme Court level. Prior to disclosing the Court’s deadlock, Chief Justice Burger wrote a note to his colleagues urging them instead to schedule the matter for re-argument—when Justice Rehnquist’s participation would presumably prevent another tie—because a nondecision here could be “valid[ly] critici[zed] as an institutional failure to meet our obligations.”55 Burger might have in fact pursued re-argument in Vorchheimer primarily because he believed that Rehnquist would join him in voting to uphold the validity of Central’s policy, thus breaking the deadlock in a direction that suited him. But whatever his actual motivations, Burger’s larger critique has accumulated potency over time. More than three decades later, this institutional obligation remains unfulfilled, as constitutional law scholars eagerly await the Court directly resolving the legitimacy of single-sex public schools.56
While the Court has yet to answer this question definitively, that inaction should not be misinterpreted as indicating that the landscape of single-sex public schools remains unchanged since the 1970s. In Philadelphia, for example, a state court decision in 1983 invalidated Central’s male-only policy and threw open the school’s doors to female students. On the basis of a more thoroughly developed factual record than existed in the earlier, federal case, the state court determined that Central’s facilities and educational opportunities materially surpassed Girls High’s along numerous dimensions—including library acquisitions, faculty qualifications, advanced course offerings, student test scores, and college acceptance rates. At Girls High, meanwhile, the situation has in recent years grown somewhat murkier. By 2010, Girls High discontinued its official policy limiting enrollment to females, and its website offered a nongendered mission statement of “graduating students who will treat others compassionately and live lives of personal integrity.”57 Yet no male has ever enrolled at Girls High, nor—evidently—has any student who enrolled as a female ever transitioned gender identity while attending the school.
Philadelphia’s abandonment of Central as an all-male school and its preservation of Girls High as a de facto all-female school can be viewed as consistent with the Supreme Court’s most recent guidance on single-sex education. In that case, which arose in the higher education context, the Supreme Court in an opinion by Justice Ruth Bader Ginsburg invalidated the all-male policy of the Virginia Military Institute (VMI) in 1996. Ginsburg predicated her opinion on the notion that VMI had a lengthy history of providing its cadets with an elite collegiate experience in highly austere circumstances, as she concluded that excluding interested women from this exceptional educational opportunity could not be squared with the Equal Protection Clause’s requirement that sex-based classifications occur only if they stemmed from an “exceedingly persuasive justification.”58 While many women would be uninterested in enduring the arduous physical and psychological strain that formed a central part of VMI’s student experience, Ginsburg noted, many men would also be uninterested in enduring that same strain. For Ginsburg, the essential point was that some women affirmatively sought out VMI’s distinctive experience, and it was impermissible for the state to exclude women from educational opportunities based on sex stereotypes. Ginsburg further noted that the state’s recent effort to establish an all-female military college—in the form of the Virginia Women’s Institute for Leadership—did not come close to matching VMI in terms of its program, prestige, faculty, and alumni.
Based on this analysis, it seems virtually certain that—even had a Pennsylvania state court not invalidated Central’s all-male policy in the 1980s—modern constitutional doctrine would require the high school to include female students in its first-rate educational environment. Indeed, Central’s place at the summit of public secondary education in Philadelphia occupies an analogous position to VMI’s elite status among students interested in pursuing higher education within a military atmosphere. Justice Ginsburg’s public commentary following the judicial rejection of VMI’s admissions policy underscored the connection between these two redoubtable institutions. Ginsburg, who as head of the ACLU’s Women’s Rights Project during the 1970s helped to draft the Supreme Court brief challenging Central, stated after authoring her triumphant judicial opinion that eliminated a bastion of all-male privilege, “To me, it was winning the Vorchheimer case twenty years later.”59
While the Court’s opinion rejecting VMI’s exclusion of women would thus seem to have required Central to open its doors to female students (had it not already done so), it was far less certain that the opinion should be interpreted as requiring Girls High to admit male students. In portions of the opinion that were not essential to the Court’s conclusion, Ginsburg’s reasoning suggested that it may not be necessary for all single-sex schools to become coeducational. “[D]iversity in educational opportunities is an altogether appropriate governmental pursuit and…single-sex schools can contribute importantly to such diversity,” Ginsburg wrote in one footnote. “[I]t is the mission of some single-sex schools to dissipate, rather than perpetuate, traditional gender classifications….We do not question the Commonwealth’s prerogative evenhandedly to support diverse educational opportunities.”60 This passage can be understood in at least two ways regarding Girls High’s exclusion of males. On the one hand, if the existence of Girls High were viewed as undercutting, instead of reinforcing, sex-based stereotypes, then its exclusion of male students may well be deemed constitutional. On the other hand, if Philadelphia’s failure to offer an all-male “academic” high school were viewed as failing to comply with the requirements of evenhandedness, then Girls High’s exclusion of males may well be deemed unconstitutional. The uncertainty surrounding what this language means likely accounts for Girls High’s equivocal approach to its all-female student body.
Perhaps surprisingly, Justice Ginsburg’s allowance in 1996 that single-sex public schools could even conceivably pass constitutional muster represents a departure from how she approached that issue in the wake of the Court’s nondecision in Vorchheimer. During that era, she portrayed single-sex public schools as fundamentally incompatible with the Equal Protection Clause. As late as 1983, Ginsburg published an essay that construed Vorchheimer as challenging not only Central’s admission policy but single-sex schooling as a general proposition—a stance that if successful would have required Girls High to admit males. Thus, in Ginsburg’s telling, Vorchheimer “[p]resented…the question whether Philadelphia could maintain sex-segregated secondary schools for academically gifted boys and girls.”61 Even more starkly, Ginsburg at that time portrayed a hypothetical Supreme Court opinion upholding Philadelphia’s schooling arrangements as a “ruling condoning ‘separate but equal’ public school education in the context of sex.”62*5
Which of Ginsburg’s competing visions of single-sex public schools is more compelling: the earlier one that held the institutions as uniformly unconstitutional, or the more recent one holding that they may—at least in certain circumstances—pass constitutional muster? In my view, Ginsburg had it right the first time: critics of single-sex public schools make the more persuasive case that such schools violate the Equal Protection Clause, as they tend to promote stereotyped sex roles.
The case against permitting all-male public schools is rather straightforward. Admittedly, as the Third Circuit majority opinion emphasized in Vorchheimer, creating some all-male public schools within a larger coeducational school system increases the sorts of educational environments available to students. That enlarged set of educational options, however, cannot counteract the undesirable message that flows from maintaining all-male public schools in a society that is rife with sexism. As Christopher Jencks and David Riesman argued in the context of higher education in 1968,
The pluralistic argument for preserving all-male [schools] is uncomfortably similar to the pluralistic argument for preserving all-white [schools]….The all-male [school] would be relatively easy to defend if it emerged from a world in which women were established as fully equal to men. But it does not. It is therefore likely to be a witting or unwitting device for preserving tacit assumptions of male superiority—assumptions for which women must eventually pay.63
Educational endorsements of male superiority may be at their most pernicious when elite schools are reserved exclusively for males. But it would be mistaken to believe that those messages disappear altogether when even non-elite all-male public schools exist within our larger sex-stratified culture.
The closer constitutional question involves the legitimacy of all-female public schools. Proponents of such schools generally contend that they foster valuable social and academic atmospheres in which many young women thrive. Supporters often suggest that females receive superior classroom instruction in single-sex schools, both because teaching strategies can be tailored to address how female students actually learn and because any pro-male attitudes that teachers harbor can find no outlet in the biased treatment of students based on sex. The absence of male students, advocates further maintain, guarantees that female students will assume leadership positions within the school. Relatedly, proponents contend that the absence of male students increases the likelihood that (heterosexual) female students will exert themselves to their full academic potential because they neither fixate on their physical appearances in an effort to attract male attention nor fear that exhibiting intellectual firepower will repel that attention. As Professor Susan Estrich—who graduated from Wellesley College before becoming the Harvard Law Review’s first woman president—memorably proclaimed in defending all-female academic environments, “Sometimes separate isn’t equal; it’s better.”64
While some of these arguments undeniably contain appeal, the countervailing arguments even more compellingly suggest that all-female public schools cannot be squared with the demands of the Equal Protection Clause. The notion that females receive superior classroom instruction in single-sex schools is objectionable for at least two distinct reasons. First, separating students on the belief that females—as a sex—have a distinctive learning style from males masks variation within an individual sex and perpetuates the concept of inherent cognitive differences between the sexes. Wendy Kaminer, who graduated from Smith College, has forcefully asserted that single-sex schools “reinforce regressive notions of sex difference” and contended, “The sexism in girls’ and women’s schools is insidious. Whether manifested in feminine decor or in an approach to teaching that assumes a female penchant for cooperative, or ‘connected,’ learning, stereotypical notions of femininity often infect institutions for women and girls.”65 Second, even allowing that teachers’ sexism harms coeducational classrooms, it is far from clear that sequestering female students in their own academic institutions provides the optimal solution to that problem. As Rebecca Bigler, a psychologist at the University of Texas, recently objected, “You say there’s a problem with sexism, and instead of addressing the sexism, you just remove one sex.”66
The alleged benefits that all-female schools confer upon their students due to the absence of males also collapse upon close examination. Given that sex-based stereotypes continue to pervade society, achievements at all-female schools may well send the regrettable, and false, message that female students cannot compete effectively against their male counterparts—a signifier that diminishes and taints accomplishments, no matter how significant. Professor Gary Simson has suggested that though all-female schools are often meant to “affirm[ ] girls’ abilities and potential,” the very creation and maintenance of such institutions risks communicating “to both girls and boys that girls are in some sense inferior to boys—whether that means more needy, less adaptable, more fragile, or some other disempowering comparative generalization.”67*6 In a similar vein, Professor Nancy Levit has contended, “[S]tate-sponsored sex exclusivity is unlikely to vest segregation with new meaning. Sex segregation with connotations of inequality is of too recent vintage—indeed, it never left us. Equality of opportunity requires boys and girls to live and to learn together, because life outside the classroom is coed.”68 Furthermore, supporting all-female schools so that their students can focus on learning without worrying about male students’ perceptions incorrectly accommodates, rather than challenges, the male gaze and—less loftily—propagates the wrongheaded notion that intelligence and attractiveness cannot coexist within the same female body. As Kaminer has suggested, single-sex schools “encourage heterosexual women and girls to separate their social and intellectual lives, reinforcing the dissonance bred into many achievement-oriented females.”69 By enabling “students to exercise the choice of being smart on weekdays and pretty on weekends,” Kaminer contended, single-sex schools provided their students with a false choice: “The prospect of being intellectually assertive and [physically attractive] simultaneously, every day of the week, was barely considered or, perhaps, even desired.”70
Assessing the legitimacy of single-sex public schools today does not involve a question solely of abstract significance, because, while such schools verged on extinction during the mid-1990s, they have become surprisingly commonplace in recent years. In 1995, only one year before the Court invalidated VMI’s all-male policy, Philadelphia’s Girls High was one of only three single-sex public schools in the entire country. Although Justice Scalia dissented from the majority opinion involving VMI, and decried the Court for leaving single-sex public education “functionally dead,” those institutions—not long thereafter—came roaring back to life in elementary and secondary schools.71 By 2005, thirty-four single-sex public schools existed—a more than tenfold increase from one decade earlier. But the truly spectacular growth occurred during the next decade, following the issuance of new federal guidelines by President George W. Bush’s administration indicating single-sex public schools were valid, at least provided that students enrolled in them only on a voluntary basis.*7 The most recent Department of Education statistics, collected in 2014, revealed that some 850 public schools feature single-sex student bodies.72 This rebirth of single-sex public education transpired even though polling data indicated that no groundswell of national support embraced the practice. In 2002, a Gallup poll found that 67 percent of respondents opposed making single-sex schools an option in their communities, and only 31 percent supported doing so. When Gallup isolated the responses of public school students’ parents, moreover, the level of opposition surged to 74 percent.73
Legal scholars often suggest that the Supreme Court’s decisions invalidating unusual measures contain little significance, because those practices would have either died out on their own or been repealed through democratic means. But the dramatic revival of single-sex public schools during the last decade undermines such tidy narratives. If an unusual measure gains sufficient popularity within particular pockets of society, the absence of a judicial opinion foreclosing that practice’s adoption can have major consequences.74
Importantly, single-sex public schools are not evenly spread in various sorts of communities throughout the country. Instead, they appear overwhelmingly in inner-city neighborhoods, with high poverty rates and high percentages of racial minorities. Beginning in the 1990s, frustration with the abysmal record of academic achievement and alarming rates of social dysfunction that plague many urban areas prompted reformers to introduce single-sex schools in a desperate effort to try something—anything—that might improve the situation. In perhaps the most prominent dispute over a single-sex public school, the ACLU’s Women’s Rights Project (the litigation outfit formerly headed by Ruth Bader Ginsburg) sought in 1996 to require the newly created Young Women’s Leadership School in Harlem to accept male students so that they too might take advantage of the small class sizes and college preparatory programs that distinguished it from most other New York City public schools. Professor Derrick Bell—in a New York Times op-ed titled “Et Tu, A.C.L.U.?”—ridiculed the litigation effort as unwisely seeking to extinguish a valuable experiment in urban schooling: “We need to give innovative educational initiatives a chance before intervening with legal actions that—even when they succeed—do no more than maintain a woeful status quo.”75 Five years earlier, in 1991, a similarly heated—though lower-profile—controversy occurred when Detroit announced its intention to create three academies for black male students that would offer a special curriculum, featuring Afrocentric lessons and a “Rites of Passage” class. When a Detroit mother joined an ACLU-backed lawsuit attempting to gain access to one of the academies for her young daughter, the harassing phone calls and claims of community betrayal became so intense that she felt compelled to withdraw.76
Frustration with the wretched state of public schools in urban America is certainly understandable—indeed, I share that sentiment myself—but it is far from clear that the dire circumstances confronting those communities should suffice to render this new wave of single-sex education constitutionally permissible. While the public schools in many predominantly minority neighborhoods are broken, no persuasive evidence indicates that their coeducational status plays even an incidental role in their failure. Accordingly, it is difficult to understand how the state’s creation of such single-sex schools, even if attendance at them is voluntary, can qualify as “an exceedingly persuasive justification,” the Court’s governing test for assessing gender classifications.77
Apart from lacking a sound evidentiary basis for their creation, moreover, single-sex educational environments in urban areas demonstrate a distressing propensity for disseminating precisely the sorts of gendered stereotypes that Justice Ginsburg once convincingly contended violate the Equal Protection Clause. Thus, for example, The New York Times recently reported that in one Florida school district, male students learn in classrooms lined with images of football players and race cars, whereas the decor for female students includes hot-pink desk caddies, walls bordered with cheetah and zebra prints, and a list of rules that instructs, “Act pretty at all times!”78 Perhaps more disconcertingly, schools serving only black male students routinely offer patriarchal lessons of racial uplift—instructing that their community’s well-being is predicated on their becoming the “strong Black men” needed to head both their families and the race.79
Even in the absence of promoting such retrograde messages, however, an independent reason remains for doubting their legitimacy. Brown v. Board of Education demonstrated awareness that schooling arrangements sometimes communicate objectionable messages to marginalized groups about their status within the community, and the heavily skewed demographics of single-sex public schools today could also well be understood to convey an untoward message about the status of indigent racial minorities. As Professor Verna Williams has explained,
The fact that so much of the discourse surrounding single-sex education is about Black children in troubled urban school districts is cause for concern. Put another way, there generally is no concomitant rush to segregate public schoolchildren based on sex in predominately white Grosse Pointe, Michigan, a suburb of Detroit,…for example. If sex segregation were the silver bullet that its proponents suggest, one might expect more school districts across the board to jump on the bandwagon. But that is not the case. Sex segregation appears to be the remedy for what ails public schools peopled…by low-income students of color.80
Thus, the very prevalence of single-sex public schools found in areas serving poor, minority students can itself be viewed as suggesting that this population is so damaged that they require a highly abnormal form of schooling—one virtually unknown in modern American public schools that serve other populations.*8
TRANSGENDER STUDENTS AND ACCESS TO RESTROOMS
Perhaps the single most polarizing education case that the Supreme Court has agreed to address in recent years involved whether schools can legally prohibit transgender students from accessing restrooms consistent with their gender identities. As the Court contemplated whether to hear a lawsuit posing that question in 2016, an article in The New York Times posited that “the most fiercely contested territory in America right now [may be] the bathroom.”81 Consistent with this claim, Texas’s lieutenant governor, Dan Patrick—who opposed granting trans students access to requested restrooms—asserted the matter was “the biggest issue facing families and schools in America since prayer was taken out of public schools.”82 Supporters of permitting trans students such access agreed that the legal question was momentous, even as they disdained Patrick’s underlying position. For example, Chirlane McCray—spouse of New York City’s mayor, Bill de Blasio—contended that granting the requested restroom access boiled down to a matter of basic human decency: “No child should face humiliation and embarrassment because of their gender identity, especially during such a private moment.”83
The lawsuit that reached the Supreme Court grew out of events that began in 2014, when a rising tenth-grade student named Gavin Grimm informed school officials in Gloucester County, Virginia, that he wished to be referred to with masculine pronouns and addressed by his newly adopted legal name. The path leading to this request, however, started many years earlier. Ever since Grimm first appreciated the distinction between boys and girls, he felt that he was a transgender male—even if his vocabulary then lacked that terminology. At age six, Grimm began rejecting traditional feminine attire. When Grimm’s parents required him to wear a dress on one occasion—to attend a family wedding—he found the experience so traumatizing that it rendered him “catatonic,” because as he later explained, “It [was] like my self wasn’t really living.”84 Years later, when Grimm came out as trans to his parents, they were initially stunned, as neither of them had ever previously encountered the transgender concept, let alone an actual person who so identified. But they educated themselves about the subject and soon resolved to assist with their child’s transition. Grimm’s parents, in addition to facilitating his name change, would help him secure hormonal treatments to lower his voice and to provide him with a more traditionally masculine appearance.85
Despite this affirming parental response, Grimm feared how school officials would react to news of his transition. In Gloucester County, a sparsely populated area within Virginia’s tidewater region, many residents evinced deep religiosity and an almost instinctual aversion to anything that appeared to contravene local customs, according to Grimm. His trepidation, however, initially proved misplaced, as Gloucester High School’s leadership not only accepted Grimm’s request to recognize his male gender identity but even pledged its support. As Grimm recalled, “[The school] assured me that teachers and administrators would call me Gavin, and use male pronouns when referring to me, and if anyone gave me any kind of trouble, it would be resolved right away.”86 Roughly one month into the school year, Grimm sought and received permission from Gloucester’s principal to begin using the boys’ restroom, rather than the single-occupancy restroom located in the nurse’s office that he had been using. Going to a separate part of the school—isolated from fellow students—to relieve himself caused Grimm to feel embarrassment and extreme discomfort. Due to the unusual arrangement, he explained, “I have this neon sign above my head that says I’m different from my peers.”87 After receiving school authorization, Grimm used the boys’ restroom without incident for seven weeks. But this period of tranquillity would not last.
When adults in Gloucester County learned that Grimm was using the male bathroom, the school board held two separate meetings, where many community members attacked the arrangement. At the first meeting, several speakers emphatically used feminine terms, including “girl” and “young lady,” to refer to Grimm. Yet that first meeting was positively decorous compared with the raucous second meeting. The nadir occurred when one speaker called Grimm “a freak” and likened him to a person who, believing he is actually a canine, attempts to urinate on fire hydrants.88*9 Grimm, who attended both meetings, pleaded with the school board, “All I want to do is to be a normal child and use the restroom in peace.”89 By a 6–1 vote, the board rejected Grimm’s request, and enacted a policy requiring “students with gender identity issues” to use separate, private facilities from their classmates.90 In response to this change, Grimm sought to avoid using the restroom at school altogether and consequently developed several urinary tract infections.91 He also decided to mount a lawsuit contesting the school board’s policy.
The U.S. Court of Appeals for the Fourth Circuit vindicated Grimm’s claim in April 2016. In so doing, it yielded to the Obama administration’s interpretation of regulations regarding Title IX of the Education Amendments Act of 1972. This statute prohibits discrimination “on the basis of sex” for educational entities that receive money from the federal government.92 While Title IX contains regulations that permit sex-segregated bathrooms, the Obama administration instructed schools generally to treat trans students in accordance with their gender identities for purposes of those regulations, meaning that it would be impermissible to exclude Grimm from the boys’ restroom. The Fourth Circuit found that the regulatory terms contained sufficient ambiguity that—in accordance with binding administrative law precedent—the executive branch’s interpretation deserved deference. The Supreme Court then agreed to review the Fourth Circuit’s opinion. Shortly before the Court was scheduled to hear oral argument in the case, however, the Trump administration rescinded the Obama administration’s guidance. Several Trump administration officials defended the action by invoking the familiar justification that the federal government should not enter this sensitive schooling question that is better left to states and localities.*10 Following the withdrawal of the Obama administration’s regulatory interpretation, the Supreme Court remanded the case to the lower courts for an assessment of whether Grimm should prevail even amid the transformed legal landscape. The choice to remand did not surprise close Court watchers, because the institution strongly prefers to avoid weighing in on legal questions that involve moving targets. Instead, the Court prefers to render a decision after it has the benefit of an appellate court opinion that has passed on the precise legal question, presented in the same basic posture, and briefing that parses the appellate opinion.*1193
While Gavin Grimm graduated from high school before the Supreme Court ever definitively addressed his claim, it seems improbable that even if it does not hear Grimm’s individual case, the institution will be able to avoid resolving his central legal question for long. One estimate suggests that there are somewhere between 165,000 and 555,000 transgender students attending various elementary and secondary schools in the United States, and many of them do so in jurisdictions where educational authorities treat them adversely. If the issue does soon return to the Court, moreover, it could quite plausibly pose a question not in the statutory and regulatory domain but in the constitutional domain.94
Only days after the Trump administration rescinded the previous administration’s guidance, a district court judge in western Pennsylvania relied upon the Equal Protection Clause to reject a school board’s efforts to prohibit three transgender students from accessing restrooms congruent with their gender identities. The Supreme Court’s extensive jurisprudence interpreting the Equal Protection Clause to reject sex classifications, Judge Mark Hornak reasoned, provided protection to transgender students in this context: “[D]iscrimination based on transgender status in these circumstances is essentially the epitome of discrimination based on gender nonconformity, making differentiation based on transgender status akin to discrimination based on sex for these purposes.”95 With this foundation established, the school district’s policy appeared tantamount to unconstitutional discrimination on the basis of transgender status. “The Plaintiffs are being distinguished by governmental action from those whose gender identities are congruent with their assigned sex,” Judge Hornak wrote. “The Plaintiffs are the only students who are not allowed to use the common restrooms consistent with their gender identities.”96
In Judge Hornak’s view, the school district fell well shy of demonstrating that its restrictive restroom policy stemmed from an “exceedingly persuasive justification,” as required by the Court’s precedents involving sex discrimination.97 As in Gavin Grimm’s case, the Pennsylvania high school in question had initially permitted transgender students to use their requested bathrooms before the school board enacted a measure eliminating that access. Prior to the district’s new policy, Judge Hornak noted, the school experienced neither bathroom disturbances nor intrusions upon student privacy. As to the latter point, Judge Hornak emphasized that the school’s restrooms had locking bathroom stalls and that the urinals in the boys’ restrooms were separated by partitions. Permitting transgender students to use only the various single-occupancy bathrooms located around the school did not, according to Hornak, satisfy transgender students’ rights under the Fourteenth Amendment. This point might have been pressed further still by observing that if some students feel uncomfortable using a restroom in the presence of a trans student, those uneasy students could easily avail themselves of the single-occupancy facilities.98*12
While it is predictable that many conservatives would disparage opinions vindicating transgender students’ claims as ignoring and even eroding long-standing social distinctions between males and females, it may be surprising to learn that some commentators can be understood to denigrate such opinions from the left. For these critics, opinions such as Hornak’s are mere half measures because they serve to bolster distinct bathrooms on the basis of sex, granting transgender people access to what effectively remain sex-segregated spaces. According to this radical critique, the notion that a human being can somehow use the “wrong” bathroom is itself profoundly wrong. Indeed, a few prominent legal scholars have in recent years contended that it has grown increasingly difficult to justify sex-segregated bathrooms, redolent as they are of heteronormative assumptions and stereotypes holding that dainty females must be isolated from boorish males when they execute the same bodily functions.99 Grimm’s attorney expressly disavowed such a goal, stating that his client “is not trying to dismantle sex-segregated restrooms. He’s just trying to use them.”100
Whatever Grimm’s precise objectives, though, surely some trans people would regard abolishing sex-segregated bathrooms as an important victory, even if they also acknowledged it is one that seems unlikely to materialize in the current climate.*13 The trans community, like all communities, holds varied ideals and aspirations. As Jennifer Finney Boylan—author of a best-selling autobiography titled She’s Not There: A Life in Two Genders—has memorably expressed this point, “If you’ve met one trans person, you’ve met…one trans person.”101 In one form or another, then, it seems possible the restroom will remain a contested social space in schools—and the larger society that contains them—for many years to come.
PLYLER V. DOE AND PERSISTENT EFFORTS TO EXCLUDE UNAUTHORIZED IMMIGRANTS FROM PUBLIC SCHOOLS
In 1974, Humberto Alvarez departed Mexico City and headed north in search of a better way of life for his spouse, Jackeline, and their four young children. After crossing the U.S. border without authorization, Alvarez ended up settling in Tyler, Texas, a small city located roughly one hundred miles southeast of Dallas that branded itself the “Rose City of America.” Alvarez secured work at a local meatpacking plant and then sent for his family, who joined him in Tyler two years later. The Alvarez children enrolled in the local public schools and set about the business of learning English, along with the other cultural components of their new country. One year after the Alvarez children arrived, however, Tyler education officials declared that unauthorized immigrants had effectively been banished from the schools. Relying upon a statewide law that refused to allocate funds to localities for the education of noncitizens and even permitted their exclusion from public schools, Tyler announced that unauthorized immigrants would be required to pay one thousand dollars in tuition annually for each child who attended school. From Humberto Alvarez’s perspective, the thousand-dollar tuition fee—which amounts to slightly more than four thousand dollars in today’s figures—might as well have been a million dollars. Tyler’s school superintendent, James Plyler, contended that the state’s new policy imposed serious financial strain on the district and called the excluded students “a burden.” But this explanation seems difficult to credit as, according to Plyler’s own testimony, unauthorized immigrants accounted for only twenty-four of the sixteen thousand students in the district. After Alvarez witnessed his children stay home from school day after day after day at the beginning of the 1977 school year, he finally decided to join three other families in filing a lawsuit contesting the constitutionality of Texas’s exclusionary law under the Equal Protection Clause. Alvarez’s decision required genuine bravery because he felt that doing so substantially increased the risk of deportation for him and his family. The federal trial court in Tyler—in a decision written by Judge William Wayne Justice—rewarded Alvarez’s risk by requiring the schools to readmit the excluded students.102*14
In 1982, the Supreme Court in Plyler v. Doe endorsed that assessment by deeming Texas’s exclusionary measure unconstitutional in a 5–4 decision. Justice William Brennan’s opinion for the Court rested on three primary, overlapping justifications. First, Brennan emphasized that the Texas law penalized minors not because of their own conduct but because of their parents’ unlawful actions. Plyler v. Doe repeatedly referred to targeted students as “innocent children” and observed further that “legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”103
Second, Brennan contended that the measure’s absolute exclusion of unauthorized immigrants from school imposed a severe burden on this vulnerable group. Although the Court as a formal matter did not disavow Rodriguez’s refusal to acknowledge education as a constitutionally protected fundamental right, Plyler v. Doe did acknowledge that it would be improper to treat education as “merely some governmental ‘benefit.’ ”104 The complete absence of even a basic education, Brennan observed, would “impose[ ] a lifetime hardship” on young unauthorized immigrants because “[t]he stigma of illiteracy will mark them for the rest of their lives”—irredeemably harming not only their own individual economic prospects but also their ability to contribute to the nation’s civic life.105
Third, Brennan suggested that upholding Texas’s law would also damage the United States as a whole. Upholding the Texas statute, Brennan maintained, threatened to intensify the isolation of a “shadow population” and also “raise[d] the specter of a permanent caste of undocumented resident aliens.”106 The measure brought those unappealing scenarios to the fore, Brennan advised, by imprudently curtailing access to American public schools—traditionally, an invaluable aid in sociocultural assimilation to the United States. “[E]ducation has a fundamental role in maintaining the fabric of society,” he wrote. “We cannot ignore the significant costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.”107 Brennan explained that the Texas law represented a betrayal of the nation’s deepest constitutional commitments: “The existence of [a permanent unauthorized] underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.”108 Elaborating upon this point, Brennan stated, “[D]enial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit.”109
Chief Justice Burger wrote a dissenting opinion, joined by three other justices, portraying the Texas statute as a valid (if misguided) exercise of constitutional authority, and disparaging the majority opinion as a paragon of “unwarranted judicial action,” one that exemplified a troubling tendency “to become an omnipotent and omniscient problem solver.”110 Burger left no doubt that he found the law under review imprudent, at least from a policymaking standpoint. “Were it our business to set the Nation’s social policy,” he wrote, “I would agree without hesitation that it is senseless for an enlightened society to deprive any children—including illegal aliens—of an elementary education.”111 Nonetheless, Burger insisted that this measure violated no constitutional provision. “The Constitution does not provide a cure for every social ill, nor does it vest judges with a mandate to try to remedy every social problem,” he contended. Echoing the position that Justice Felix Frankfurter espoused in the compulsory flag-salute cases of the 1940s, Burger construed the judiciary’s intervention in Plyler v. Doe as sapping vitality from the democratic experiment itself. “[W]hen this Court rushes in to remedy what it perceives to be the failings of the political processes,” Burger explained, “it deprives those processes of an opportunity to function. When the political institutions are not forced to exercise constitutionally allocated powers…, those powers, like muscles not used, tend to atrophy.”112 Burger did draw at least some measure of solace, however, from Plyler v. Doe because the opinion “rests on such a unique confluence of theories and rationales that it will likely stand for little beyond the” educational context.113
Plyler v. Doe elicited divergent assessments in prominent media outlets. In perhaps the sunniest appraisal, The Boston Globe suggested that excerpts of Justice Brennan’s opinion should “be framed and hung in every American school house.”114 Likewise, The New York Times contended that the decision “struck a blow for minimal decency” and that “any other result would have been a national disgrace.”115 The Washington Post, however, viewed the opinion with skepticism, essentially endorsing Burger’s dissenting position. While deeming Texas’s exclusionary policy “unwise,” the Post resisted concluding that its flaws rendered it unconstitutional: “In sorting out society’s responsibilities for those who are in this country without permission and in violation of law, the courts would be wise to attach greater weight to the decisions of elected legislatures.”116 Going further, The Wall Street Journal panned the opinion, observing that “local communities are in a better position than the Supreme Court to judge how much they should discourage illegal immigration,” and lamenting that the judiciary “has taken yet another decision out of local hands.”117
When the Court decided Plyler v. Doe, no state in the country other than Texas had enacted legislation eliminating unauthorized immigrants’ access to education. This legislative background has, in recent years, motivated some sophisticated constitutional scholars to dismiss Plyler v. Doe as an insignificant opinion that invalidated merely an “outlier” statute. On this account, the Court’s decision is understood as eliminating a blatantly outrageous measure—one that would not have gained traction outside the Lone Star State, where an outlandish cowboy mentality prevails. Accordingly, scholars who subscribe to this mindset maintain, it would be sorely mistaken to understand Plyler v. Doe as providing a meaningful contribution to America’s constitutional legacy of protecting minority rights, because the opinion simply ratified the prevailing view across the nation. When the justices issue outlier-suppressing opinions, this scholarly approach posits, they do not shape society’s foundations; instead, they merely tweak society’s edges.118
But such dismissive assessments of Plyler v. Doe are erroneous. Rather than some trivial event in the nation’s constitutional history, it seems far more accurate to understand the opinion as preventing the Texas measure from spreading to other states, and thus forestalling what was an isolated measure from becoming the dominant approach. Although initially rejecting a policy located only in Texas, the decision has enjoyed broad applicability throughout the nation, and has served as a vital bulwark against widespread efforts to deprive unauthorized immigrants of access to education. Accordingly, Plyler v. Doe can persuasively be understood as providing a momentous contribution to the nation’s constitutional legacy. Indeed, it is difficult to identify many opinions in the Supreme Court’s entire history that have had more profound consequences, in more vital arenas, than Plyler v. Doe’s guaranteeing that the schoolhouse doors cannot be closed to one of modern society’s most marginalized, most vilified groups. The opinion has single-handedly enabled innumerable children to use education to expand both their minds and their horizons.
Academic portrayals of Plyler v. Doe as an insignificant decision have flourished in part because legal scholars have expended too little effort placing the case in historical perspective. Examining the opinion in context, however, renders its major contributions to the American legal landscape unmistakable.
The Supreme Court itself in no way construed the Texas statute as a jarring legislative innovation that inexplicably found traction in a single state. Although the Court might have plausibly cast the statute as an idiosyncratic departure from long-standing practice, Justice Brennan’s opinion instead expressly noted that unauthorized immigrants “now live within various States” and framed the decision as holding nationwide implications.119 Similarly, in a concurring opinion, Justice Lewis F. Powell Jr. opened by emphasizing that Texas was far from alone in feeling the effects of unauthorized immigration and observed, “This is a problem of serious national proportions.”120 In addition, it seems worth recalling that four Supreme Court justices voted to uphold the Texas statute, hardly suggesting that Texas’s statute was viewed as incomprehensible from a national perspective. During the Court’s internal deliberations, moreover, Justice William Rehnquist referred to unauthorized immigrants as “wetbacks.”121 That a Supreme Court justice would use such inflammatory language in discussing a closely divided case with colleagues vividly attests to the unvarnished animus directed toward unauthorized immigrants—even on the national stage, even in the most rarefied environments. Perhaps even more tellingly, though, only one of Rehnquist’s colleagues—Justice Marshall—appears to have voiced objection to the incendiary epithet.
Outside the Court, Texas’s exclusionary measure was perceived as neither trivial nor eccentric in the early 1980s. In The New York Times, Linda Greenhouse’s preview of the Court’s upcoming term profiled Plyler v. Doe as the single most significant case for her readers. The civil rights community likewise viewed the case as momentous, not least because they feared that a decision upholding the Texas measure would provoke other states to entertain analogous statutes. Irma Herrera, an attorney for the Mexican American Legal Defense and Educational Fund, articulated this very concern after the Court vindicated her organization’s position. “Had we lost,” Herrera said, “many other states would have attempted to pass [similar] legislation.”122 It seems erroneous to dismiss Herrera’s statement as merely an advocate’s paranoia, as disinterested commentators both at the time and in more recent years have reached this same conclusion.123 On the other end of the spectrum, a young lawyer working in the Reagan administration named John Roberts—who would, of course, go on to become chief justice of the United States in 2005—viewed the Plyler v. Doe decision as a missed opportunity. In his capacity as special assistant to Attorney General William French Smith, Roberts co-authored a memorandum in 1982 bemoaning the Department of Justice’s failure to file an amicus brief in the case supporting Texas’s position because he speculated doing so might have prompted the Court to uphold the measure.124
Although no public opinion polling data gauged the contemporaneous reaction to Plyler v. Doe, it hardly seems implausible to maintain that a national majority would have supported Texas’s effort to exclude unauthorized immigrants from public schools. Two years after the opinion, a Gallup poll found that 55 percent of the public deemed unauthorized immigration a “very important” problem, and respondents in states bordering Mexico expressed that view only slightly more frequently than respondents in other states. In May 1995, when Gallup conducted the first nationwide poll asking respondents whether they favored or opposed “providing free public education, school lunches, and other benefits to the children of” unauthorized immigrants, 67 percent expressed opposition and only 28 percent expressed support.125 If this question were asked today—more than twenty years later and amid the current wave of nationalist fervor—it seems eminently plausible that an even higher percentage of respondents would wish to exclude unauthorized immigrants from schools. Even though many Americans no doubt disagree with Plyler v. Doe—or, rather, precisely because of this broad disagreement—the opinion should be appreciated as making a vital contribution to closing the expansive gap that too often separates the nation’s lofty rhetoric from its lowly realities.
Texas might have been the first state to adopt this legislation, moreover, but it was far from the last jurisdiction seeking to ban unauthorized immigrants from school. Voters in California during the 1990s and legislators in Alabama two decades later enacted their own versions of these initiatives, as supporters of both measures hoped to spark a reassessment of Plyler v. Doe. Predictably, in both instances, lower federal courts swiftly applied the precedent to invalidate those measures. In the absence of a Supreme Court precedent on the question, though, it seems virtually guaranteed that many additional states (and even local communities) would have enacted similar measures during the intervening years. Consistent with this theory, civil rights lawyers have utilized Plyler v. Doe in communities around the nation to prevent school districts from adopting measures that demand information from enrolling students that unauthorized immigrants cannot provide. Those enrollment practices are not confined to school districts located in either southern states or states that border Mexico. Instead, such practices have arisen in a wide variety of states—including Illinois, Indiana, Maryland, Michigan, Nebraska, New Jersey, and New York. In recent years, civil rights groups have motivated state education officials in all of those jurisdictions to warn school districts against requiring information from enrolling students that would force unauthorized immigrants to disclose their immigration status. The Department of Justice, under President Barack Obama, joined the chorus condemning these enrollment practices by invoking Plyler v. Doe to inform school administrators that the practices violated federal law.126
Fully examining Plyler v. Doe requires addressing the case’s underlying racial dimensions. Given that the Texas legislature’s measure sought to exclude unauthorized immigrants from school, and that the overwhelming percentage of students touched by the law would have hailed from Mexico, some readers today may understand the law as stemming purely from Anglos’ animus toward their brown-skinned neighbors. During the 1980s, some commentators condemned the measure using racially inflected language. For example, Ruben Bonilla, leader of a prominent Latino civil rights organization, asserted in 1980 that the statute stemmed from “the Alamo mentality” and Texas’s long-standing desire “to keep the Mexicans out.”127 In a similar vein, Newsweek depicted the Mexican American community in Texas as united in opposition to the law.
While it is impossible to ascertain with any degree of certainty how large a role such racialized sentiments figured in motivating the statute, the available evidence complicates the notion that Anglos were the only Texans who supported the measure. In fact, the statewide exclusionary measure mimicked a local ordinance enacted by a small town on the U.S.-Mexico border, where Mexican Americans accounted for 95 percent of the population. After the statewide measure’s adoption, moreover, some of its most vocal support originated in Brownsville, Texas, a city in the Rio Grande Valley where more than 90 percent of students traced their origins to Mexico. Brownsville’s school superintendent, Raul Besteiro, adamantly supported the exclusionary measure and hardly sounded as though he ailed from “the Alamo mentality.” Besteiro—who described himself as “Mexican-American and…proud of it”—reported harboring no “animosity” toward unauthorized immigrants and sympathetically allowed, “I know these kids need an education.”128 Besteiro further observed, “They’re looking for a better life. You can’t blame them for trying.” Nevertheless, Besteiro surveyed Brownsville’s severely overcrowded classrooms, even with the addition of forty portable classroom units per year, and reasoned that the 1,400 students from unauthorized immigrant families were “diluting” the quality of education for the other 28,100 students.129 Besteiro contended that Brownsville’s residents, who were overwhelmingly Mexican Americans of limited economic means, demonstrated no appetite for raising their taxes to assist unauthorized immigrants. To be clear, I do not mean to suggest that racism played no role in marshaling support for Texas’s measure, as immigration-related laws and racial anxieties enjoy a lengthy, sordid history in the United States. I do mean to suggest, however, that support for Texas’s law should not be dismissed as stemming exclusively from racial animus toward brown-skinned students.
Plyler v. Doe’s protection of unauthorized immigrants’ access to public schools has endured for more than thirty-five years. The opinion’s durability is remarkable because it challenges an ascendant school of thought within legal academia, suggesting that the Supreme Court affords protection to particular groups only after a social movement has first succeeded in transforming cultural attitudes within the larger nation. That narrative undoubtedly encapsulates several important constitutional developments. But it is virtually impossible to construe the Court’s decision in Plyler v. Doe as the culmination of a mass social movement that altered American attitudes toward unauthorized immigration. No such movement existed in the early 1980s. Scholars interested in exploring the capacity of courts to vindicate constitutional rights—even in the absence of widespread popular support—would be well advised to examine Plyler v. Doe’s successful effort to retain access to education for all minors, including unauthorized immigrants.130
It would be misguided, moreover, to construe Plyler v. Doe as a desirable decision exclusively from the perspective of the children it enabled to receive an education. Rather, the decision can, as Justice Brennan predicted, also be understood as benefiting the nation. In 1994, a reporter for the Los Angeles Times successfully tracked down thirteen of the original sixteen children who contested Texas’s law. All thirteen of those individuals went on to become lawful permanent residents of the United States, and ten graduated from high school in Tyler. The group includes many productive members of society who pay taxes and work in a variety of positions, including auto mechanic, stock clerk, and assembly-line worker. The Plyler Court thus correctly anticipated that denying a basic education to a group of people who were likely to remain in the country would have inflicted catastrophic consequences on the polity. Laura Alvarez, one of Humberto’s children, grew up to become a teacher’s aide in Tyler—working for the very school system that had banished her seventeen years earlier when she was preparing to enter the third grade. “Without an education, I don’t know where I’d be right now,” Laura said in 1994, offering a sentiment that was roundly embraced by her erstwhile co-plaintiffs.131 By 2007, on the opinion’s twenty-fifth anniversary, even the Tyler school superintendent who initially decided to impose the tuition fee on unauthorized immigrants had come around to express approval of the Court’s decision. “I’m glad we lost…so that those kids could get educated,” Plyler stated.132 Had his initial position prevailed, the retired superintendent supposed, “[i]t would have been one of the worst things to happen in education—they’d cost more not being educated.”133
Despite Plyler’s belated embrace of the outcome, the opinion that bears his name has not yet attained anything approaching universal approbation. To the contrary, prominent right-leaning commentators assail the opinion as a lawless aggrandizement of judicial authority. But Plyler v. Doe’s detractors often lodge their criticisms on the basis of fundamental misapprehensions. In 2014, for example, Professor Richard Epstein disparaged the Court’s opinion for intruding into “a classic question of state management of public resources,” and further faulted it for botching “[t]he clear textual argument…that the citizen/alien classification cannot be regarded as arbitrary when it is built into the very fabric of the Fourteenth Amendment.”134 Epstein’s textual claim, however, falls flat. While Epstein is correct that the Fourteenth Amendment’s second sentence uses the term “citizens of the United States,” the framers confined its usage in that sentence to the Privileges or Immunities Clause. The Fourteenth Amendment’s Equal Protection Clause—the provision at issue in Plyler v. Doe—more broadly applies “to any person within [a state’s] jurisdiction.” The framers’ invocation of these two distinct terms thus indicates, contra Epstein, that all “person[s],” regardless of citizenship status, are entitled to invoke the Equal Protection Clause.
As Chief Justice Burger predicted (and presumably hoped) in his dissenting opinion, the Supreme Court has not expanded Plyler v. Doe’s holding to apply beyond the narrow circumstance where jurisdictions impede unauthorized immigrants’ access to education. A pair of cases, both decided in the 1980s, illustrates the Court’s steadfast refusal to import the precedent into other, novel contexts.
In 1983, only one year after Plyler v. Doe, the Court upheld a different provision of the Texas code in a case called Martinez v. Bynum. The contested measure prohibited minors who lived apart from their parents or guardians from attending a public school in their residential districts if their living arrangements were driven by a desire to receive an education in that district. The dispute arose when Roberto Morales—who was born in McAllen, Texas, but whose parents now resided in Mexico—returned to McAllen to live with his sister, Oralia Martinez, primarily for schooling purposes. Although Martinez served as her brother’s custodian, she professed no desire to become his guardian. In an 8–1 opinion written by Justice Powell, the Court quickly rejected the legal challenge by noting that Plyler v. Doe itself disclaimed interfering with school districts’ traditional right “ ‘to apply…established criteria for determining residence.’ ”135 Martinez garnered only one solitary dissent, perhaps in part because the provision could be circumvented with relative ease. Minors who wish to attend school in a particular district where they live apart from their parents could elude the measure—either by having their custodian assume the guardian role or even more readily by identifying some noneducational reason (for example, safety) as the chief motive behind the minor’s residential selection. Consistent with this theory, school districts have seldom invoked this statutory provision in an effort to exclude students following Martinez.136
The second, more contentious Supreme Court opinion limiting the applicability of Plyler v. Doe appeared in 1988, when the Court upheld a North Dakota law permitting localities to charge students—even from indigent families—a fee for bus transportation in Kadrmas v. Dickinson Public Schools. Sarita Kadrmas lived with her family some sixteen miles away from her elementary school, in a remote corner of North Dakota even as assessed by the state’s standards. Dickinson’s school buses had previously transported students to and from school free of charge. But the newly instituted ninety-seven-dollar annual transportation fee proved prohibitive to Kadrmas’s family, whose income hovered near the poverty level and who relied upon her father’s sporadic work in the oil fields. In a 5–4 decision, Justice Sandra Day O’Connor wrote an opinion determining that Dickinson’s barring Kadrmas from riding the school bus did not violate the Equal Protection Clause, and rejecting the notion that excluding students from the bus resembled Texas’s exclusion of unauthorized immigrants from schools. “Unlike the children in [Plyler], Sarita Kadrmas has not been penalized by the government for illegal conduct by her parents,” O’Connor reasoned. “On the contrary, Sarita was denied access to the school bus only because her parents would not agree to pay the same user fee charged to all other families that took advantage of the service.”137
Critics of this reasoning would surely retort that if prohibiting children in poor families from riding the bus meant they would not attend school at all, then the two situations would seem closely analogous—as the children excluded from the bus could be viewed as being penalized with a denial of education on account of their parents’ destitution. As if seeking to preempt this point, Justice O’Connor repeatedly observed that the Kadrmases did manage to transport Sarita to school every day on their own. Yet it was far from clear that this fact should play any decisive role in resolving the larger legal question, which O’Connor framed as whether “the busing fee unconstitutionally places a greater obstacle to education in the path of the poor than it does in the path of wealthier families.”138 In dissent, Justice Marshall construed Kadrmas as only the latest in a long series of regrettable decisions—including Rodriguez—that marked the Court’s “retreat from the promise of equal educational opportunity.”139 Marshall elaborated: “For the poor, education is often the only route by which to become full participants in our society. In allowing a State to burden the access of poor persons to an education, the Court…discourages hope.”140*15
When the Court issued Kadrmas, some commentators portrayed the decision as insignificant because the North Dakota statute permitting districts to charge students for transportation to and from school was extremely unusual when viewed within the nationwide legislative context, and indeed very few localities even within North Dakota opted to impose fees. Since Kadrmas, however, this practice has increased exponentially. Today, school districts in at least thirteen states—including California, Massachusetts, and Texas—impose transportation fees on students, and not all of these districts offer waivers or discounts to students from indigent families. It is one thing to require all participating students (regardless of economic circumstances) to pay fees for transportation to extracurricular events and field trips. But it is quite another to impose those fees upon students from indigent families simply for attending school, which state laws throughout the land require of minors. If school districts refuse to grant waivers or deductions to students from families who, say, qualify for free or reduced lunches, they can expect to have those policies challenged in court. The post-Kadrmas expansion of student transportation fees powerfully illustrates how the Court’s unwillingness to invalidate constitutionally dubious—though at the time isolated—school policies can yield major consequences down the road. Thus, just as the Court deserves credit in Plyler v. Doe for nipping in the bud schools’ efforts to exclude unauthorized immigrants, it also must bear responsibility for permitting the contested policy in Kadrmas to bloom.141
*1 Newsweek, evidently, was so enamored of this formulation that it repeated it nearly verbatim four months later, when it stated, “[M]any people fear that uniform educational spending could well lead to uniform educational mediocrity.” “The Taxing Question,” Newsweek, Jan. 31, 1972, 48.
*2 Justice Potter Stewart, whom President Eisenhower appointed, joined Nixon’s four justices to form the majority. For a small sample of the commentary connecting Rodriguez to President Nixon’s influence on the Court, see “Property-Tax Financing of Public Schools Upheld, 5–4, by Supreme Court, but Opponents Plan to Press Fight,” Wall Street Journal, March 22, 1973, 3 (“The case divided the court along ideological lines, with all four Justices appointed by President Nixon voting with the conservative majority”); Warren Weaver Jr., “5 to 4 Against ‘Upheaval,’ ” New York Times, March 25, 1973, 221 (“Voting to uphold the present system against claims of inequality were the four appointees of President Nixon”); and “School Tax Decision,” Chicago Defender, March 31, 1973, 8 (noting that “[a]ll the Nixon appointees joined” Rodriguez).
*3 In 1986, the Supreme Court confirmed that it had not closed the door on the notion that the Constitution may protect some fundamental right to education: “As Rodriguez and Plyler indicate, this Court has not yet definitively settled the question[ ] whether a minimally adequate education is a fundamental right.” Papasan v. Allain, 478 U.S. 265, 285 (1986). For a recent article contending the Supreme Court should recognize a right to education, see Barry Friedman and Sara Solow, “The Federal Right to an Adequate Education,” 81 George Washington Law Review 92 (2013).
*4 During this era, Justice Brennan refused to hire women as law clerks in large part because he liked to use salty language. Brennan—who issued several progressive opinions advancing the cause of sex equality—nevertheless believed it would be inappropriate and ungentlemanly to swear before members of the opposite sex. See Seth Stern and Stephen Wermiel, Justice Brennan: Liberal Champion 388–401 (2010).
*5 While Ginsburg wanted the judiciary to stamp out all single-sex schools during the 1970s and 1980s, she did express some concerns in the wake of the Court’s nondecision in Vorchheimer that the case might have reached the Court prematurely. When Vorchheimer arrived at the Court, Ginsburg noted, the institution had not yet begun to hollow out single-sex education, as had occurred with respect to racially segregated education by the time the Court confronted Brown. Ginsburg also identified a more promising context for the Court first to encounter single-sex education: the disputes arising from the South’s introduction of public schools segregated by sex in the late 1960s and the 1970s. Those single-sex schools arose just as racial desegregation in the South was beginning in earnest to avoid the possibility of black males attending school with white females, a prospect that opponents of interracial intimacy greeted with horror. As one black school board member in Amite County, Mississippi, explained with irritation, “[Separating schools by sex] has always been a racial issue. The idea is to keep the black boys from having any contact with the white girls—pure and simple.” Merrill Sheils, “Segregation by Sex,” Newsweek, Sept. 19, 1977, 97. The white president of Amite County’s school board did not reject this account of the board’s motivation. When asked why Amite County did not introduce single-sex schools before 1969, the board president replied, “We didn’t have integration then. We had one school for whites and one school for coloreds, that’s why.” Helen Dewar, “Blacks Boycott Sex-Segregated Schools,” Washington Post, Sept. 4, 1977, A32. Presumably, Ginsburg preferred the Court first to encounter a dispute from this repellent milieu because, unlike in Vorchheimer, it would have been virtually impossible to imagine the justices in the 1970s crediting the notion that the southern school districts created single-sex education for any reason other than invidious discrimination. See Ruth Bader Ginsburg, “Gender and the Constitution,” 44 University of Cincinnati Law Review 1 (1975); Ruth Bader Ginsburg, “The Burger Court’s Grapplings with Sex Discrimination,” 132, 144, in The Burger Court: The Counter-revolution That Wasn’t (Vincent Blasi ed., 1983); Serena Mayeri, “The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-discrimination Discourse,” 18 Yale Journal of Law and the Humanities 187, 262–64 (2006); and Jill Elaine Hasday, “The Principle and Practice of Women’s ‘Full Citizenship’: A Case Study of Sex-Segregated Public Education,” 101 Michigan Law Review 755, 789–90n142 (2002).
*6 In 1992, Sharon Mollman elaborated upon the harmful social messages that all-female schools may communicate. “The social cost of excluding boys is not their subsequent feelings of inferiority, for their sense of power is too well entrenched,” Mollman wrote. “Instead, they perceive that girls are inferior because they will not compete with boys. There is a danger too that girls might choose the single-gender school over the co-ed one because they believe it must be less competitive, thus reinforcing their own sense of personal and gender inferiority.” Sharon K. Mollman, “The Gender Gap: Separating the Sexes in Public Education,” 68 Indiana Law Journal 149, 169 (1992).
*7 In response to the new federal guidelines, Marcia Greenberger, of the National Women’s Law Center, lamented, “It really is a serious green light from [George W. Bush’s administration] to re-instituting official discrimination in schools around the country.” Diana Jean Schemo, “Change in Federal Rules Backs Single-Sex Public Education,” New York Times, Oct. 25, 2006, A1.
*8 Sorting students by sex into entirely different schools presents an unusually intense form of separation, and therefore poses weightier constitutional questions than does separating students briefly during the school day (for, say, gym class) or afterward for extracurricular sports. Although the Supreme Court has never evaluated sex separations for school athletic events, which are generally justified on the basis of speed and strength differentials, lower courts have issued a wide variety of Equal Protection Clause decisions evaluating claims by students who wish to try out for a team that excludes members of their sex. Female students wishing to join male teams have—as a general proposition—experienced greater success making such claims than male students who seek to join female teams. Female students appear particularly likely to prevail in these legal pursuits, moreover, if the school fields a particular sports team for males but offers no comparable team to females (for example, football). See LynNell Hancock and Claudia Kalb, “A Room of Their Own,” Newsweek, June 24, 1996, 76 (“As a general principle, federal law doesn’t permit segregation by sex in the public schools. (Exceptions can be made for singing groups, contact sports and human-sexuality and remedial classes.)”); and Nancy Levit, “Separating Equals: Educational Research and the Long-Term Consequences of Sex Segregation,” 67 George Washington Law Review 451, 524 (1999) (“[P]erhaps, in some contexts, for some limited purposes, single-sex classes are not inappropriate. Separating female and male middle school students for sex education classes (because of both our notions of modesty and the students’ possible embarrassment) or gym classes (because of size and strength differences) may be useful.”). For an incisive overview of the complicated terrain involving sex and sports, see Michael Imber et al., Education Law 233–34 (2014). See also Force v. Pierce City R-VI School District, 570 F. Supp. 1020 (W.D. Mo. 1983) (authorizing a female student to try out for the school football team); and Williams v. School District of Bethlehem, 998 F.2d 168 (3d Cir. 1993) (refusing to authorize a male student to join the girls’ field hockey team).
*9 Educators also sometimes suggest that trans students suffer from delusions and that their supposedly fantastical gender identities ought not be indulged. In explaining her opposition to permitting trans students to use restrooms congruent with their gender identities, one school official in Florida stated, “Every student that comes to school and says, ‘I’m Cinderella’—should we give them a carriage to ride around in?” Jack Healy et al., “Solace and Fury as Schools React to Gender Policy,” New York Times, May 14, 2016, A1.
*10 The White House press secretary, Sean Spicer, defended the withdrawal by stating that President Donald J. Trump was a “firm believer in states’ rights.” “President Trump Breaks a Promise on L.G.B.T. Rights,” New York Times, Feb. 24, 2017, A26. Although Secretary of Education Betsy DeVos internally contested the decision to withdraw the Obama administration’s guidance, she nevertheless issued a statement asserting, “This is an issue best solved at the state and local level.” Jeremy W. Peters et al., “Trump Rescinds Obama Directive on Bathroom Use,” New York Times, Feb. 23, 2017, A1. Conservative media outlets also defended rescinding the guidance on federalism grounds. The Wall Street Journal averred, “[R]estroom policy should be determined by localities, not federal diktat.” “Calling Off Obama’s Restroom Cops,” Wall Street Journal, Feb. 20, 2017. Similarly, National Review defended the move as “preserv[ing] federalism, [and demonstrating] respect [for] the principle of local control over local schools.” “Returning Power to States and School Boards,” National Review, Feb. 23, 2017. Chad Griffin, the president of Human Rights Campaign, memorably parried this federalism line of critique by contending, “This isn’t a states’ rights issue; it’s a civil rights issue.” Peters et al., “Trump Rescinds Obama Directive on Bathroom Use,” A1.
*11 As of this writing, Grimm’s case remains procedurally tied up in lower courts. Given that he graduated from high school in June 2017, the U.S. Court of Appeals for the Fourth Circuit remanded the lawsuit in August 2017 for the district court to determine whether the controversy had been rendered moot. Grimm insisted that the controversy remained active because he planned to return to his alma mater for alumni and community events and the bathroom question would therefore arise again. See Ann E. Marimow, “Case of Virginia Transgender Teen Gavin Grimm Put Off by Appeals Court,” Washington Post, Aug. 2, 2017.
*12 In May 2017, a federal appellate court—relying upon both Title IX and the Fourteenth Amendment’s Equal Protection Clause—issued a preliminary injunction requiring Tremper High School in Kenosha, Wisconsin, to permit a transgender student to use the restroom congruent with his gender identity. In August 2017, the Kenosha Unified School District filed a certiorari petition seeking review of that decision with the Supreme Court. In January 2018, however, the school district agreed to pay the student $800,000 to settle the lawsuit, thereby preventing the Supreme Court from addressing the issue. See Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017); Annysa Johnson, “Kenosha Schools Ask U.S. Supreme Court to Take Up Transgender Bathroom Issue,” Milwaukee Journal Sentinel, Aug. 25, 2017; Jacey Fortin, “Transgender Student’s Discrimination Suit Is Settled for $800,000,” New York Times, Jan. 10, 2018.
*13 One reason that trans people may support eliminating sex-segregated bathrooms is that doing so would alleviate pressure to meet traditional notions of how males and females must appear before they can enter the restroom without inciting controversy or violence. There would be no need for courts, even those protecting transgender rights, to inspect photographs to assess whether transgender students convincingly look the part. See, for example, Evancho v. Pine-Richland School District, 237 F. Supp. 3d 267, 275 (W.D. Pa. 2017) (“Ms. Evancho’s photo, which shows that her appearance is completely consistent only with the gender identity that she lives every day, is in the record”); and ibid. (“Plaintiff Ridenour’s photo, which shows that her appearance is consistent only with the gender identity that she lives every day, is in the record”). In this vein, Professor Mary Anne Case has contended that eliminating sex-segregated bathrooms would mean that “[i]ndividuals will not be forced to conform to any standard of what it is appropriate for a man or a woman to look like in order safely to enter a public restroom. Other forms of gender nonconformity [would] be made easier as well.” Mary Anne Case, “Why Not Abolish the Laws of Urinary Segregation?,” in Toilet: Public Restrooms and the Politics of Sharing 211, 219 (Harvey Molotch and Laura Norén eds., 2010).
*14 Judge Justice issued many important opinions during his decades as a federal judge. These opinions often vindicated liberal constitutional values, and conservative elements in Tyler, Texas, directed deep hostility toward both Judge Justice and members of his family. In 1998, Professor Lino Graglia asserted, “[Judge Justice] has wreaked more havoc and misery and injury to the people of Texas than any man in the last 25 years.” Douglas Martin, “William Wayne Justice, Judge Who Remade Texas, Dies at 89,” New York Times, Oct. 16, 2009, B11. Among his many significant opinions, one biographer noted, Plyler v. Doe occupied a special place in the heart of Judge Justice’s spouse:
Shortly after Justice issued [Plyler v. Doe], a little bouquet of flowers arrived at the Justice home. The card contained two X’s and one illegible signature. Sue [Justice] called the florist who had prepared the bouquet. He told her that three Mexican laborers had put down two dollar bills and some change—all the money they had—and asked that the flowers be sent to Mrs. Justice. “That very meager bouquet of flowers went a long way to make up for all the suffering I’ve experienced,” she says.
Frank R. Kemerer, William Wayne Justice: A Judicial Biography 248–49 (1991).
*15 Justice Marshall’s law clerk who worked with him on this dissent subsequently revealed that of all the cases decided during her term at the Court, the justice “cared [most] about” Kadrmas. After the law clerk—whom Marshall designated “Shorty” on account of her diminutive stature—drafted the dissent, she recalled that Marshall repeatedly returned the document to her “for failing to express in a properly pungent tone…his understanding of the case.” “Shorty” would eventually follow in Marshall’s professional footsteps—first by serving in the Department of Justice as solicitor general and then by becoming an associate justice on the Supreme Court. See Elena Kagan, “For Justice Marshall,” 71 Texas Law Review 1125, 1125, 1129 (1993); and Carl Hulse, “Senate Confirms Kagan as Justice in Partisan Vote,” New York Times, Aug. 6, 2010, A1, A14.