What Happened on the Road from Brown to Obama?
The concept of a federal right to education has been steadily eroded to the point where federal court litigation is no longer a reliable tool to achieve educational justice for minority students.
Any hope that Brown and its progeny would be used to require states to equalize their educational systems based on wealth and class was erased by the Supreme Court in its decision in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), where the Court upheld the constitutionality of Texas's state system of school finance. Texas, like many other states, relied heavily on local property taxes to fund its public schools. The Rodriguez Court held that the system did not violate the Equal Protection Clause of the Fourteenth Amendment and that wealth would not be subject to the heightened scrutiny reserved for race and national origin classifications. The Court also decided that education was not a fundamental right under the federal Constitution.
Rodriguez forced students and education officials in under-resourced school districts--often enrolling high proportions of minority students--to mount legal and political advocacy on a state-by-state basis. Predictably, however, in the nearly forty years since Rodriguez, we now have a confusing patchwork of state court rulings. In those states where courts have ordered improvements in resource allocation, there has been widespread noncompliance.
In the 1990s, the Supreme Court further curtailed federal education rights in a trilogy of cases from Oklahoma City; DeKalb County, Georgia; and Kansas City, Missouri. The Court signaled to states and districts that had maintained de jure systems that far less than complete elimination of all vestiges of segregation and its effects would be required of them. The impact of these decisions, in the aggregate, was a watering down of standards districts are required to meet in order to meet unitary status. The cases also provided a quick and easy exit strategy for districts and states seeking to avoid further compliance with federal court orders and desegregation agreements. While the Court later articulated standards for voluntary integration plans in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), it is not likely to recognize an affirmative right to education in the foreseeable future.
The constitutional right to education that has survived into the Roberts Court is a limited right: of children residing in the United States to attend a public school free of intentional discrimination on the basis of race and other protected categories. While Brown and its progeny clearly established a federal right for children to be free from government-sponsored segregation (and other invidious discrimination), the federal courts in the main did not require more than a minimal set of educational inputs. Moreover, administrative enforcement of Title VI by the Department of Education's (the Department's) Office for Civil Rights (OCR) has proven insufficient to bring about systemic improvement in reducing resegregation, excessive discipline rates experienced by minority students, or inequitable resource allocation to schools.
