States Better Venue for Change, Appellate Court Judge Says

May 1, 2008

Given enough time, state courts and legislatures can fix their own social problems without the help of the U.S. Supreme Court, Judge Jeffrey S. Sutton of the 6th U.S. Circuit Court of Appeals told Law School students April 24.


Sutton, who served as state solicitor of Ohio from 1995-98 and was appointed to the federal appeals bench in 2003, examined the legacy of San Antonio Independent School District v. Rodriguez while delivering the Ola B. Smith lecture in Caplin Pavilion.

The case involved a group of Mexican-American parents who sued the state of Texas in 1968 over the funding of local school districts. With funding for each district based on property taxes, schools in the parents' district received considerably less money than predominantly white districts in San Antonio. The parents won in district court.

By the time Rodriguez made it to the Supreme Court in 1972, the judicial atmosphere had changed, Sutton said. Richard Nixon had become president and placed four new justices on the Court: Warren Burger, Lewis Powell, Harry Blackmun, and William Rehnquist, all of whom voted to overturn Rodriguez . The parents lost in a 5-4 decision.

Both Powell's majority decision and Justice Thurgood Marshall's dissenting opinion contain footnotes that Sutton said foreshadowed future courses of action.

"Footnote 100 in Marshall's opinion says, 'Nothing we've said here today prevents the state courts from granting the very same relief plaintiffs seek under their state constitution,'" Sutton said.

Footnote 85 to Powell's majority opinion explores some of the remedies plaintiffs sought in the underlying Rodriguez litigation, including property wealth neutralization, Sutton said.

In this scheme, as long as the district could collect some property tax, the state would make up the rest to ensure money was spent equally in all districts.

"You can see how it would be completely wealth-neutralizing. In fact, it's hard to think Karl Marx could improve upon it," Sutton said.

The Rodriguez decision shifted the spotlight on education to the state legislatures and courts, where the judge said plaintiffs have since won the great majority of such cases.

By 2003-04, the two San Antonio school districts featured in the original case were spending at an even level, and both were above the state average, Sutton said.

Did the Rodriguez plaintiffs win by losing? Sutton acknowledged that perhaps a full generation of students didn't get the relief sought in Rodriguez. However, he said it is fair to ask, had the Supreme Court ruled for the plaintiffs in Rodriguez , "could [it] have done for this cause what the state legislatures and state courts ultimately did? I think there's a case to be made that the answer is no."

Sutton said it's far easier for state supreme courts and legislatures to try legal remedies in their own state and make adjustments as necessary than for the U.S. Supreme Court to try and impose change on all 50 states at once. The judge said affirming Rodriguez "would have stifled innovation at the state level."

"I'm utterly convinced that it would have been very difficult for the U.S. Supreme Court, as a matter of remedy, to impose any of the things that the different state supreme courts and legislatures could impose through their own constitutions," he said.

Sutton said that there was no perfect solution to public school systems' problems. But, "isn't it better to have 50 imperfect solutions than one imperfect solution? Because the 50 imperfect ones can continue to try to innovate and perhaps make some progress that couldn't be made using a one-size-fits-all approach."

The event was sponsored by the Student Legal Forum and the Virginia Law Review, which will publish Sutton's remarks.

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