RISA GOLUBOFF: Hello, and welcome back to Common Law, a podcast from the University of Virginia School of Law. I'm Risa Goluboff, the dean.
LESLIE KENDRICK: And I'm Leslie Kendrick, the vice dean. As we've been talking about in our first few episodes, this season is focused on when law changed the world. Sometimes, that's changing the world for the better or worse, and sometimes, as we're learning, it's about the road not taken.
RISA GOLUBOFF: That's right, Leslie. And so far, we've looked at a number of different turning points in American history and in legal history, like how the nation handled slaveholders' land during and after the Civil War, how the Supreme Court's views on civil rights and civil liberties evolved after World War II, and even how lawyers and activists played a role in anti-smoking efforts.
LESLIE KENDRICK: And in this episode, we're narrowing the focus down to a seminal case in Supreme Court history that's had a lasting impact on how Americans view and finance K through 12 education.
RISA GOLUBOFF: Now, this case has been incredibly important, but not that many people have heard about it compared to, say, Brown versus Board of Education. So the case we're talking about today is called San Antonio Independent School District v Rodriguez. What's so fascinating about this case, Leslie, is that even though it was decided in 1973, which is a long time ago, the same issues are very much still in play today-- the roles of race, wealth, and the federal government in primary and secondary education. And here to talk with us about it is UVA law professor Kimberly Robinson, who has centered much of her work around the repercussions of this case.
LESLIE KENDRICK: Kimberly's the co-editor of The Enduring Legacy of Rodriguez-- Creating New Pathways to Equal Educational Opportunity. She has a new book coming out in December called A Federal Right to Education-- Fundamental Questions for Our Democracy. Kimberly, welcome to Common Law.
KIMBERLY ROBINSON: Thank you.
RISA GOLUBOFF: Thanks so much for being here, Kimberly. So I thought, could you start just by telling us about how this case, Rodriguez, how it began.
KIMBERLY ROBINSON: Sure. So the case began with a parent who was concerned about the education they were receiving in a district called Edgewood. And so in Edgewood, the district was receiving less funding than a neighboring district called Alamo Heights. So the parents got together and said that this should be a violation of the federal constitution, and we're going to find a lawyer to go to court about it. So they ultimately sued the state of Texas, and argued that the disparity in funding violated the federal equal protection clause.
RISA GOLUBOFF: So can you give us a sense, like how big a gap was this? This is a big gap, right, between the funding that they were receiving and the funding that Alamo Heights district was receiving.
KIMBERLY ROBINSON: Yes. So it was a substantial gap, and it was a substantial gap because of how schools are funded. So schools are funded, as some people may not know, through largely property taxes. The local contribution is raised when you tax local property. And so Edgewood had a fairly low property tax base. Neighboring districts, such as Alamo Heights, had a much higher property tax base. And so even though Edgewood would tax at a much higher rate, they yielded significantly less for their schools. And so their schools were significantly underfunded.
RISA GOLUBOFF: And what were the constitutional claims?
KIMBERLY ROBINSON: So the focus of the case was twofold. So first, they tried to get the court to agree that wealth is a suspect class under the equal protection clause. And then second, they argued that there is a fundamental right to education.
LESLIE KENDRICK: Can you say a little bit more about wealth as a suspect class? What does it mean to be a suspect class?
KIMBERLY ROBINSON: So if something is a suspect class-- so for example, one of the most well-recognized suspect classes is race. So generally, the court will say, if you base a decision on race, then a decision that the government makes based on race is subject to something called strict scrutiny. And what that means is that's just the highest level of legal scrutiny that a court can give to what the government is doing.
You have to show that you have a compelling government interest for taking action and that the action is narrowly tailored to achieve that compelling interest. And so it requires the government to look for alternatives to considering the suspect class to make sure that they're not unduly burdening particular groups. So there's an entire body of case law that focuses on what strict scrutiny would mean. So what the families in Edgewood wanted was for the disparities based on wealth to get the court's highest scrutiny.
RISA GOLUBOFF: And did the court give it that scrutiny?
KIMBERLY ROBINSON: It did not. The federal district court ultimately did agree with the plaintiffs, but the US Supreme Court did not, and rejected wealth as a suspect class.
RISA GOLUBOFF: And how did that argument about the right to an education go?
KIMBERLY ROBINSON: So the lower court agreed that there is a federal right to education. However, the United States Supreme Court ultimately held that there was not a federal right to education.
RISA GOLUBOFF: And I mean, when you think about a federal right to education, does the federal Constitution say there is a right to an education, or that's located in the equal protection clause? What did that argument look like that they were trying to convince the court of?
KIMBERLY ROBINSON: So they were trying to convince the court that there was an implied right to education. So the Constitution does not mention education, and it does not include it as a federal congressional power. So it is not one of the enumerated powers. However, what the plaintiffs were trying to convince the court was that there is a fundamental right to education that is implied in the rights to free speech and to vote.
LESLIE KENDRICK: So you mentioned that, after this case, some of these questions do move to state courts. Tell us a little bit about what the aftermath of Rodriguez looks like.
KIMBERLY ROBINSON: So there's been what a lot of scholars call waves of litigation after Rodriguez. So first, plaintiffs continued to focus on funding disparities. And so they focused on issues of one district having more funding than another district. And those were called equity cases. Generally, there were some of those that were successful, but more often they were not successful, in part because the courts really struggled with how much of a difference rises to the level of a violation of the state constitution.
Second, they started to focus on state constitutions and adequacy litigation. And so adequacy litigation says each child should get an education to enable the child to achieve certain outcomes. And generally, those outcomes were defined by state-developed standards. So those were the two types of litigation that came out. Often, those cases and theories of litigation were merged into a single lawsuit. The adequacy suits were far more successful than the ones that emphasized equity.
LESLIE KENDRICK: So I'm just thinking, I grew up in Kentucky, and around 1990 the Kentucky educational system was declared unconstitutional under the state constitution. And you know, that was a really big development within Kentucky. And I don't know-- you know, I wasn't paying attention at the time-- I don't know if that was an equity suit or an adequacy suit, but it was certainly a state constitutional suit that was about funding disparities in my part of Kentucky, in Eastern Kentucky, is very underserved area with very low tax base, and that was quite different from Lexington or Louisville or more developed areas. And the idea was to try to provide more equalized funding. So I guess that was one of those suits that happened while I was in school.
KIMBERLY ROBINSON: Yeah, that's called the Rose decision. And actually, a number of courts around the country copied that decision. So the court in Rose really gave some very clear instructions about what education should be provided to all students in the state of Kentucky, and decided that the entire system should be struck down and the legislature should start again.
LESLIE KENDRICK: So from your standpoint as an educational expert, those types of cases, have they made a big impact in terms of the quality of education received? I've got to say, as a student, I don't know that I could feel that much difference from eighth grade to ninth grade when this change happened, but what's the take from educational experts on that litigation?
KIMBERLY ROBINSON: So it takes quite a while for the legislature to redesign a system and then implement it. So it's not the kind of thing you're going to see grade to grade. However, the consensus is that litigation had a significant impact, but it hasn't ended the problem. Instead, what comes out in litigation about school funding is that often the amount of funding that's provided is actually merely the product of political bargaining. It is not about how much it costs to educate kids successfully, it is merely the amount in the budget that's available for education. And then the lawmakers decide how to divide up that amount in the budget between the districts.
What the school funding litigation forced lawmakers to do when courts would order them to do so is to examine what does it cost to educate children, and then design a funding system to provide that amount of funding. So that was a significant breakthrough. What hasn't happened, however, is that there is no uniform mechanism in the country to address these disparities. And so you have some states where there is a robust right and other states where a child goes to court and the court says, this is entirely at the discretion of the legislature and we won't interfere.
RISA GOLUBOFF: And is that distinction because some states have a right to education in the constitution and others don't, or they all have them but, for some, it's clearer what the constitution requires? Or is it about the political will? You know, where does that variety of state responses come from?
KIMBERLY ROBINSON: So the variety is really not in the state constitutions because all the states guarantees some form of education. The adjectives that are used in the state constitutions vary. So some say thorough and efficient, some say high-quality. But it's in the state constitution at some point. What differs is how the Supreme Court in each state defines it, and defines those terms. So some courts will find thorough and efficient to mean a robust system of education, and others will say thorough and efficient is whatever the legislature says it is. And so you get a wide variety of rulings on what the exact terms mean.
LESLIE KENDRICK: So you're suggesting this patchwork state approach has not really solved the problem for certain states where this challenge hasn't been taken up, but even in states where it has been something that courts have dealt with, it's not really completely fixed the problem. And your forthcoming book is called A Federal Right to Education, so I wonder if you could say more about what you think the next steps are and how a federal right to education might figure in those.
KIMBERLY ROBINSON: Sure. So litigants basically who have been in state court have decided that state court is not going to get them to the results that they want. So we've had decades of litigation since Rodriguez where states are not fully implementing what state constitutions seem to guarantee.
And so scholars since Rodriguez have been arguing that there should be a federal right to education. However, now we have litigation actually back in federal court where litigants are saying we can't get relief in state court, so we have to go back to federal court. So there are several theories that are being put forth in federal courts, but the basic idea is that every child in the United States should have some basic guarantee of a high-quality education.
LESLIE KENDRICK: With the folks who are bringing suits in courts-- and I understand that there are a variety of different pending suits in federal courts at this point-- what's the strategy with regard to Rodriguez? Is this a strategy that ultimately will require the Supreme Court to overrule Rodriguez to go forward, or are these claims that somehow try to work around Rodriguez? And what do you forecast or predict about this?
KIMBERLY ROBINSON: So mostly the cases try to work around Rodriguez. They don't generally ask a federal court to overturn a case. First of all, they know that only the Supreme Court can do that, but second, it's very hard to get the Supreme Court to overturn itself. And so they come up with different theories for what a federal right should guarantee.
So for example, there's litigation in Detroit that says that children have a fundamental right to literacy. And so they explain what that right to literacy would entail, and that the children in Detroit are not being granted that education. So that doesn't require Rodriguez to be overruled, however, if it reaches the Supreme Court, the Supreme Court will likely speak to whether Rodriguez should be reaffirmed or overturned.
LESLIE KENDRICK: Do you see that as a potential risk of this strategy? Are there folks who are worried about this issue coming back to the Supreme Court?
KIMBERLY ROBINSON: There is quite a bit of concern. So when the litigation was begun, the assumption was that there would be a President Clinton in the White House, and that the court would look very different than it does now. And so there is some divide within the litigation community about taking this issue to the Supreme Court and doing some damage by reaffirming Rodriguez, rather than waiting for a more opportune time before the court.
However, there are some litigants who I've talked to who say it can't get worse than it is now. We have a broken education system. If the court merely says we're willing to continue to tolerate a broken education system, then we know where the court stands on this. But some are optimistic that even a conservative court will say the disparities and low quality of education that we have in some of our nation's schools fall below some constitutional minimum.
Research is very clear that low-income children need additional resources to compete on a level playing field with their more affluent peers. And so the fact that we have a majority of the state either giving the same funding or less funding suggests that we definitely have a broken system. So we only have about 11 states who give at least 5% more funding to high-poverty districts, whereas 17 states give less and 20 give about the same.
RISA GOLUBOFF: That's why that the need for additional resources in low-income school districts is-- my sense-- you correct me if I'm wrong-- is why people talk in education about equity rather than equality. Can you say a little bit about those two terms?
KIMBERLY ROBINSON: Absolutely. So equal educational opportunities sort of used to be the phrase that was floated around in terms of ensuring that all children get access to the school building. So equal educational opportunity was sort of born when we were focused on there being white schools and black schools. However, once you began to open the schoolhouse doors, what we began to see is that, even if you were in the same school building, you were not getting equal educational opportunity.
So we developed second-tier systems of segregation such as tracking, where you would have children in the same building, but they were getting very disparate education opportunities. And because of white flight, we now have districts in the same state where children are getting very different education opportunities. And so the goal of equity is to ensure that students who need additional resources receive it, as opposed to equality, which says that we all give children the same thing.
LESLIE KENDRICK: So your policy proposals focus on Congress, but your approach is one that's slightly more incremental. Could you say a little bit more about how that works in practice, and how it might lead us toward educational equity?
KIMBERLY ROBINSON: Sure. So I actually think that the court could have a significant role in addressing these issues. However, I think Congress has been overlooked as an actor who could move these issues forward. So the incremental approach that I recommend is that we look at how to define a federal right to education, and then have initially a pilot program and then a program tied to Title I, which is funding for low-income children, that would sort of test out the best model for a federal right to education, the idea being that, in education, you have this wide array of actors who are all kind of trying to run the education system. And because of the complex nature of the system, you don't want to simply come in with a mandate that can end up having adverse and negative incentives.
And so the goal that I put forward in my work is that the federal government should step in with kind of an incremental approach that builds on the laboratory of the states as partners to design what every child in the United States should be entitled to. And then once we build some national consensus about that, then adopting legislation that would embrace a definition that has been tested, in some way, in the states.
And so this would help to get buy-in, help to build political will, because it's something that's done incrementally as opposed to No Child Left Behind, which was this dramatic increase in the federal role without a lot of research and testing behind the components of the law itself. And so we had a big backlash against the federal government being involved in education because there were so many mistakes and errors in the law.
RISA GOLUBOFF: So it's incremental, it's collaborative, and it's evidence-based.
KIMBERLY ROBINSON: Yes.
LESLIE KENDRICK: And can you tell us a little bit more about what it would actually look like? So there's a pilot program, and would there be kind of different conceptions of a right to education being tested in different localities or states, or how would that work? How would there be a kind of organically developed conception of a right of education?
KIMBERLY ROBINSON: So it could work in several ways. So one, there can be several federal definitions that are being tested. Two, states could suggest that their definition actually is the one that should be adopted in broader jurisdictions, and sort of showing how our definition is meeting the needs of disadvantaged students, disabled students, English language learners, sort of ensuring that the diverse array of students in the state are achieving at high levels. And so the idea would be we are going to look at how our education model in our state is functioning in ways that addresses the needs of all students, and we think that this model would be one that would work in other states.
LESLIE KENDRICK: So picking up on whatever successes there have been through a state-based model and trying to box those out a little bit, to broaden them and to expand their reach.
KIMBERLY ROBINSON: Yes, exactly. So encouraging other states to consider adopting models that have been successful in other states. So that's certainly one way to do it. So you would have basically federal funding to incentivize states to adopt this model. So states don't like changing their school funding models. A lot of times in litigation, it will come out that this legislature hasn't revisited the model in decades. And so part of what we need are federal incentives to say let's take a fresh look at school funding and think about how to change it.
RISA GOLUBOFF: So if we're almost 50 years from Rodriguez, what's your prediction, you know, how much longer is it going to take until you're satisfied or there's a sort of consensus that most American children, regardless of income, regardless of where they live, are getting an education that they should be getting, that they're entitled to?
KIMBERLY ROBINSON: You know, honestly, I think it's going to take a fairly significant crisis in our country for people to realize we need to invest more in education. In other words, as we see our education system in rankings sort of slip further and further behind other developed nations, as we perhaps experience further economic recession and we look at the causes of that, that we haven't educated our children well to fill jobs that are existing and that are being developed that require strong background in STEM and other important skills, then I think we'll realize, oh, the ways that we neglected education actually have some significant impact.
Part of the problem with why we don't get education reform is people think about education reform as affecting other people's children. In other words, the people in power, many times lawmakers, middle class and upper class families don't immediately feel the effect of having really poorly funded schools for low-income and minority communities.
However, I think that there is a reckoning that will start to occur and that we're already feeling, in many ways. So we pay for it in our criminal justice system, we pay for it in additional health care costs, we pay for it in additional social welfare programs. And I think the more that we start to bear those costs, the more people will start to see that, OK, we could have invested x in education, but now we're having to invest x times 5 into the criminal justice system because we didn't have a good education system.
So I think it's partly just understanding that we have to address this broken system or we're-- we're going to pay for it at the beginning or we're going to pay for it later in life. So I don't know how long that will take, but certainly I think we're long overdue for a national conversation about it.
RISA GOLUBOFF: Thank you for having that conversation with us here today, Kimberly.
KIMBERLY ROBINSON: Thanks for having me.
RISA GOLUBOFF: So I was struck by Kimberly's discussion of how the court was so different than they thought it might be during the Clinton administration, when they thought they might have a friendly court. And she didn't have a chance to get into this, but that was actually the case with Rodriguez itself.
So before the plaintiffs took the case to the court in the late 1960s, the Supreme Court was the Warren Court. It was among the most progressive courts the country has ever known. And they had actually been thinking quite a lot about the rights of poor people and whether there were constitutional protections for the poor.
And so when the plaintiffs began this case, they thought they were likely to find a favorable Supreme Court. But by the time they got to the court, there were four new appointees, and now it was the Burger Court, not the Warren Court. But at the time, it was considerably more conservative than the Warren Court had been, and it kind of stopped short the experiments that the Warren Court had been taking into whether to protect the poor.
LESLIE KENDRICK: That's really interesting. Those must have been some wrenching strategic conversations about how, or if at all, to try to change course when you think this is different from how we thought it was going to be when we started this.
RISA GOLUBOFF: And even though I think the Burger Court was not uniformly conservative in all respects, San Antonio v Rodriguez is often cited as the case not only that ends the idea of a federal constitutional right to education, which is what Kimberly's mostly interested in, but also the case that is kind of the death knell for constitutional protections for the poor. And there continue to be little vestiges and ways in which they do continue to protect, but for the most part, this is the case that people take a standing for the end of that experiment.
LESLIE KENDRICK: Which brings it into your wheelhouse, and thinking about equal protection and thinking about the poor as a category that has major constitutional resonance where we could have a kind of civil rights jurisprudence around that. That's not the direction we end up going.
RISA GOLUBOFF: It's not. And I think that the comment that Kimberly made at the end is so important about how, a lot of the time when people are thinking about education reform or they're thinking about a right to an education, they're imagining someone else's child, and that when people in power don't see themselves, they're not necessarily all that inclined to help. And in these cases, I really do think they don't see the rights because they don't see the rights holders.
LESLIE KENDRICK: I wonder if part of that also is about our conception of rights as being so focused on individual rights. I was struck by Kimberly's pointing out education is not just an individual right, but a social good, in various ways. And it seems as though she's pushing in a kind of legislative direction where maybe we will see more of an ability to recognize education as something that's not just a matter of individual rights and claims, but also a matter of social welfare and the appropriate target for social policy.
RISA GOLUBOFF: I think that's right, and I think it also dovetails with another kind of social fact of our constitutional jurisprudence, which is that we tend to think that rights are negative rights. They are rights that individuals have against the government. Don't stop my speech, don't stop me from having an abortion, right, that whatever it is that the government owes you, it's to not do something to you. And there's an alternative conception of rights, which is the government has duties to do certain things for you.
And given, you know, the enormous cost to education, it looks a lot like a positive right. And what you're saying is, government, you have to provide me with this good, you know, if it is a social good. The next correlation is we often think, because we don't conceive of the Constitution as having positive rights, that the legislature is the right institution, the right body to be thinking about social goods and positive rights, rather than having courts enforce them through individual litigation.
LESLIE KENDRICK: And I think there is a way in which some of the cases that we're talking about and some of the stories we're talking about this season at once are reflections of this and also are part of the development of our constitution and our conceptions of what our constitution is and isn't. So Rodriguez is a point where maybe things could have looked different from how they end up looking. And it shapes the conceptions of constitutionalism that we have today.
RISA GOLUBOFF: Absolutely.
LESLIE KENDRICK: Well, that's it for this episode of Common Law. We hope you'll join us next time for more stories about when law changed the world.
RISA GOLUBOFF: Our website is commonlawpodcast.com. You can find all our past episodes there, including last season's shows about the future of the law, plus plenty of background information on all the topics we've been covering. And you can always tweet at us at commonlawUVA.
LESLIE KENDRICK: We're taking a break for a couple months as the holidays commence, but we'll be back for the second half of our season in February with UVA Law professor Frederick Schauer, who will discuss the famous freedom of the press case New York Times versus Sullivan.
FREDERICK SCHAUER: The real goal here was to punish the New York Times basically for representing northern Yankee agitators who were criticizing the South, and just at the beginning of that part of the civil rights era that was characterized by marches, protests, demonstrations, picketing, and the like.
RISA GOLUBOFF: Common Law comes to you from the University of Virginia School of law. Today's episode was produced by Sydney Halleman, Robert Armengol, and Mary Wood, with help from Virginia Kane. The show is recorded at the studio of the Virginia Quarterly Review. I'm Risa Goluboff.
LESLIE KENDRICK: And I'm Leslie Kendrick. See you next time.