B. Class in Our Classes

Race is not the only indicator of educational inequality in this country. The poor also receive poor schooling. In 1973, the same year that Time published Blackboard Battlegrounds, the Supreme Court declared in San Antonio Independent School District v. Rodriguez that education was not a fundamental right under the U.S. Constitution. This decision provided a cover for states to offer wealthy children a better education than their less affluent peers.

In making this pronouncement, the Court upheld Texas's school finance system, which was driven by local property taxes and necessarily benefitted children in more tax-rich areas. Justice Thurgood Marshall warned in his dissent that over time upholding such a scheme would work to deprive[] children in their earliest years of the chance to reach their full potential as citizens. Indeed, we continue to privilege already-privileged youth by providing them with superior access to educational services, while leaving poor children in substandard, low-performing schools.

In the face of growing differences of quality education between poor and wealthy students, President George W. Bush declared in his 2000 nomination acceptance speech that [t] oo many children are segregated in schools without standards, shuffled from grade to grade. This is discrimination, pure and simple - - the soft bigotry of low expectations. The next year, in an effort to raise the bar for marginally performing schools, Congress passed the No Child Left Behind Act (NCLB). NCLB provided special funding for disadvantaged districts in an alleged effort to help them fulfill the President's educational expectations by 2014, but it did so under a bizarre incentive structure that exacerbated many local-level funding problems.

Both conservatives and progressives have seen the Act as a misguided failure. It held struggling schools to a higher standard and penalized them more harshly than others when they failed to meet benchmarks. In a further perversion of concern for the underprivileged, the Act has encouraged what President Barack Obama has called a race to the bottom, where jurisdictions have lowered the local bar to help troubled schools meet it.

In the wake of NCLB, educational adequacy lawsuits have come to replace desegregation cases as the new wave of litigation seeking to address disparity in educational opportunities. Litigants across the country have challenged the kind of disparity that Justice Marshall forecast in Rodriguez, a disparity that is more readily apparent under NCLB's data collection and assessment mechanisms. This new wave of lawsuits has been largely based on state constitutional provisions, rather than the federal Constitution, alleging inadequate educational services for poor children.

Again, Missouri serves as a striking example. The Missouri Constitution requires the State to establish and maintain free public schools, because it acknowledges that the general diffusion of knowledge and intelligence [is] essential to the preservation of the rights and liberties of the people. Despite this provision, many have seen the state's educational funding formula as one of the most unbalanced in the nation. In 2004, various parties, including more than half of the state's school districts, sued under the Missouri Constitution to obtain additional state funds and ensure minimal per student expenditures across districts. After five years of litigation, the Missouri Supreme Court ended the lawsuit; it held that the Missouri Constitution does not require the State to engage in any particularized distribution scheme or provide greater funding. Ultimately, this decision upheld the gap in spending between poor students and rich students. The following year, however, in Turner v. School District of Clayton, the Missouri Supreme Court suggested that children zoned for poorly performing, unaccredited St. Louis schools should be able to transfer to accredited ones. The implications of that decision, interpreting a portion of Missouri's Education Code, are still unknown, because the court remanded the case for further proceedings, and various constituencies are working hard to blunt its impact. To date, the battle around equitable distribution of school resources continues in Missouri.

In light of the recent economic downturn across the nation, disparities in educational services appear to be growing more pronounced. For instance, when Pennsylvania released its reduced state education budget last year, its cuts in education spending resulted in poor districts . . . taking the biggest hit. Per-pupil annual spending reductions in such districts ranged from $1149 per student up to $2561. School administrators in Pennsylvania reported that such decreases would force tax-poor districts to cut back on even the most basic educational necessities, in addition to gutting after-school tutoring programs and impacting kindergarten education for four-year-olds.

The same holds true in New York. The New York Times recently highlighted how the state's reduced educational budget for 2011 will prove catastrophic for poor areas while scarcely affect[ing] wealthy districts that have a more robust local tax base from which to draw funds. It noted that even without these cuts, the poor district of Ilion was only able to offer one foreign language course--Spanish--and four advanced placement courses to its students. Syosset, a wealthier district, offered at least eight foreign languages--including Russian and Mandarin Chinese--and a range of nearly thirty advanced placement college-level classes. Thus, as the Ilion press lamented, the message is clear that the State will not afford poor children the same starting point as the rich. Rather, like other marginalized school children, they--and their families--remain embattled.