Portside

This year marks the 50th anniversary of San Antonio Independent School District v. Rodriguez, the landmark 5-4 Supreme Court decision that held that education is not a fundamental right protected by the U.S. Constitution. The decision dashed hopes that the historic Brown v. Board of Education ruling that ended legal segregation in 1954 would be followed by a sustained federal commitment to making education equality a reality.

Demetrio Rodriguez was a sheet metal worker and a member of the Edgewood Concerned Parent Association when he became the lead plaintiff in the case. He thought his three children were being shortchanged by wide disparities in schooling across the sprawling San Antonio school district and the state of Texas. Parents hoped the case would clearly establish a federal right to education.

Instead, the San Antonio decision closed the federal treasury to advocates of funding equity and set the stage for decades of legal battles over 50 state school finance systems that provide sharply different levels of education to students from different class, race, and community backgrounds. Those court battles, and the organizing and advocacy they generated, made some significant gains. But today the U.S. school funding landscape remains littered with unequal and inadequate state funding systems and is in urgent need of transformation. One recent national survey found that “unequal opportunity is a universal feature of state school finance systems.”

Still, there is reason for hope. Activists and advocates are reaping the lessons of a half century of funding battles and planning the next wave. In February, Pennsylvania’s system of funding schools, one of the most unfair in the country, was declared illegal after a 10-year court battle, opening up a debate over how to reform it (see below). Also encouraging, researchers, organizers, and policy advocates are developing notions of what “transformative justice in school funding” could look like.

Reproducing Inequality Instead of Eradicating It

The process of remaking school funding in the United States begins with understanding how the current system reproduces inequality instead of eradicating it.

In most countries the right to education is enshrined in the national constitution and supported by a centralized, national funding system. The patchwork U.S. system of local property taxes and 50 separate state funding systems makes it an outlier. As with voting rights, the lack of strong federal protections provides room for less transparent and less equitable state and local systems. 

The absence of a federal guarantee of basic educational rights can be traced to the country’s historic fault lines. While Horace Mann was organizing “common schools” in Massachusetts in the 1800s, public education didn’t exist in most parts of the country, and even aspiring to literacy was a crime for most Black people. Arguably, public education got its biggest boost from Reconstruction when multiracial legislatures in the South supported the establishment of public schools and Radical Republicans in Congress demanded that clauses guaranteeing universal access to free public education be added to state constitutions as a condition of re-admission to the union. 

But the end of Reconstruction and the consolidation of Jim Crow culminated in the “separate but equal” era of Plessy v. Ferguson, and states’ rights — including “local control” of schools — became central components of segregation in the United States. A federal takeover of school funding never happened for the same reasons that federal efforts to end segregation, even after the Brown decision, were weak and indecisive: The structures of white supremacy and class privilege were stronger than society’s democratic and egalitarian impulses.

Some retrospectives marking the anniversary of San Antonio noted how these same factors were reflected in the court’s decision. Chalkbeat reporter Matt Barnum offered evidence that four of the justices in the 5-4 majority (all recent Nixon appointees) were swayed by “an influential cadre of social scientists [who] claimed it didn’t matter how much money schools spent. In fact, maybe schools weren’t actually a key factor in what students learned. Maybe — most insidiously — poor children of color weren’t likely to succeed in school no matter how well funded their schools.”

Barnum recounts how such ideas were “spreading, appearing in academic journals and publications” like the Atlantic, the Washington Post, and the New York Times. He cites the sympathetic attention given to eugenicists like Berkeley psychologist Arthur Jensen, who argued that IQ was largely fixed at birth and to Daniel Patrick Moynihan, the Harvard academic and presidential advisor who urged “benign neglect” toward issues of racial justice and who emphasized the “pathology” of Black families. Even liberal scholars like James Coleman, whose seminal “Coleman Report” was directly authorized by the Civil Rights Act of 1964, identified “the home” and “the cultural influences immediately surrounding the home” rather than schools or money as the source of education disparities. “The racist notion that children in poverty could not benefit from additional or even equal resources may well have influenced the court’s decision,” Barnum writes.

He speculates further that pushback to Brown led the court to back away from asserting federal responsibility over funding policy for every school in the nation. “Enforcing desegregation,” he writes, “had prompted a furious backlash and a host of practical difficulties that engulfed the court in litigation for decades to come. Deciding for the plaintiffs in the Rodriguez case, [Justice Lewis] Powell wrote, would have led to an ‘unprecedented upheaval in public education.’”

The abdication of federal responsibility for equalizing school funding meant the focus returned to the states. Each state constitution includes language establishing a system of free, universal public education, and since 1973, there have been school funding cases in 48 of the 50 states parsing exactly what that constitutional promise requires. About half have declared existing funding systems illegal or inadequate and mandated a variety of corrective measures or “remedies.” 

Equity and Adequacy Gaps

Typically, these cases have focused on “equity gaps” in funding across districts that can be traced to wide gaps in per-pupil spending and to finance systems that rely heavily on unequal property tax bases to fund schools. These gaps translate into daily injustices for students in the form of fewer curricular resources and course offerings, less prepared and supported staff, subpar facilities, and fewer support services. 

Local property taxes still supply about 44 percent of all school funds. State support varies, but on average provides about 48 percent. The federal government’s overall share of education spending, despite the huge impact of federal policies like No Child Left Behind, is still only about 8 percent.

Since the distribution of property in the United States is grossly unequal and communities are sharply segregated by race and class, it’s inevitable that schools heavily dependent on property taxes will be unequal. In fact, with more than 13,000 school districts, the reliance on property taxes is a sorting mechanism for class and race privilege and allows pockets of “elite schooling” to exist within the public system. 

Relying on local property taxes serves the agenda of the conservative forces that dominate state and local governments in several ways. When communities must assume growing fiscal burdens for schools by more heavily taxing local residential and commercial property, it creates strong pressure for austerity. When school budget referendums are presented like sacrificial lambs to hard-pressed local taxpayers, who never get to vote on tax abatements for real estate developers or whether the U.S. Department of Defense should build another aircraft carrier, the budget process is driven not by what schools and children need, but by how to keep the tax rate flat. The reliance on property tax funding works at one level to protect privilege and at another as a vise to squeeze local budgets.

At the same time, the per-pupil amounts schools receive in most states are not based on reliable estimates of the staff, programs, and resources needed to provide a quality education for all children. Instead, they are political decisions made by state and local officials based on budgetary pressures and spending priorities. 

More recently, school funding cases have focused on “adequacy gaps” between what school funding systems provide and what state and federal education standards demand of schools. The recent lawsuit in Pennsylvania documented a $4.6 billion gap between what the state funding system provided and what its own cost studies said was necessary to allow students to meet state standards. Expert witnesses testified that Pennsylvania’s wealthiest districts spent $4,800 more per student than poorer ones. The court ruled there was “no rational basis” for such disparities that violated the state constitution’s promise of a “thorough and efficient” education for all.

But as New Jersey’s Education Law Center (ELC-NJ) has pointed out, “Law books are filled with wonderful paper victories that have never been implemented.” Although glaring disparities in school funding have persuaded judges to order reform, it’s been difficult to prevent governors and state legislators from limiting the impact of court orders. Restrained by separation-of-powers concerns and a conservative political climate, courts have given states wide latitude to proceed with half measures and evasive action — and seemingly endless delay.

There is an old joke about school funding lawsuits that “they’re like a Russian novel, long and boring and by the end, everyone’s dead.” The recent Pennsylvania decision came after 10 years of litigation and may still be appealed. Newly elected Gov. Josh Shapiro says working out a remedy could take years. Generations of Keystone State students have spent their entire school lives in a system that violates their rights with “no rational basis.” 

We Won, Now Keep Fighting

Still, decades of legal challenges at the state level have won significant victories, especially when combined with strong campaigns of advocacy and organizing. Where funding challenges have been successful, disparities have narrowed and spending levels in poorer districts have improved. A 2022 Economic Policy Institute report summarized the impact of funding reforms stemming from successful court challenges. It found improvements in test scores, graduation rates, and “educational attainment” (i.e., years of completed schooling), along with “higher adult wages and reduced odds of adult poverty” for students in affected districts. It also found “improvements to schools themselves — increased teacher salaries, reduced student-to-teacher ratios, higher school quality.” 

The most successful funding cases can lead to dramatic improvements. New Jersey’s Abbott case produced court mandates that established full-day public pre-K for 3- and 4-year-olds, class size limits of 15 through 3rd grade, and state responsibility for 100 percent of the cost of facilities projects in the state’s poorest districts. In Massachusetts and New York, pressure from court challenges compelled the legislatures to add billions to state school budgets.  

Even in deep red Kansas, a combination of six state supreme court decisions and a sustained grassroots campaign for funding justice succeeded in defeating Gov. Sam Brownback’s “red state experiment.” Brownback had turned the state’s school funding system into a patchwork system of “block grants” and the legislature repeatedly balked at providing needed resources. In 2013, a lone parent and a single teacher began a 60-mile trek from the Shawnee Mission school district to the capitol in Topeka to publicize the need for better school funding. The walks grew into an annual event eventually drawing hundreds of parents, teachers, and students. One parent carried a brick from a long-closed public school attended by his father and grandfather. “Kansas schools are kind of important to my family,” he told a reporter. The Kansas Education Association, the state PTA, and the grassroots citizens group Game on for Kansas Schools built a statewide campaign that eventually changed the composition of the legislature and drove Brownback from office. More than a billion dollars in cuts were reversed and hundreds of millions in new resources added to the state education budget.

To be sure, such gains are precarious, subject to erosion and reversal. The watchword for funding battles even when victorious, says ELC-NJ, must be “We won. Now keep fighting.”

As of 2020, 23 states spend above the national per-pupil average ($15,450) 27 spend less. In some states, equity suits have led to “weighted student formulas” that drive more resources to districts with greater populations of students with extra needs. Nineteen states have “progressive” funding formulas that provide more resources to higher poverty districts. Twelve states have flat formulas and 17 are regressive, providing more resources to wealthier districts than poorer ones. 

Decades of funding litigation have established that the state is responsible for meeting the educational promises enshrined in state constitutions and that, legally, districts are creatures of the state. Where overreliance on local property taxes to fund schools creates inequality, it is the legal responsibility of the state to address it.

One metric that reflects the long-term threat state budget austerity poses to school funding justice has been a steady decline in “state effort,” the percentage of a state’s economic activity that goes to support K–12 programs. In 39 states, average state effort in 2020 was less than it was before the fiscal crisis of 2009. Even as state economies recovered, education spending didn’t return to previous levels. This amounted to an “austerity tax” in which state legislatures refused to raise the funds necessary to support public services like education. If states had simply maintained their pre-recession effort levels, schools would have received nearly $750 billion in additional revenue.

And then there are the school funding formulas. These hopelessly complicated equations are typically understood by only a few researchers, attorneys, and bureaucrats in each state. But they nevertheless determine the allocation of billions of dollars and are endlessly subject to manipulation and underfunding.

For example, Pennsylvania stopped using its school funding formula to distribute state aid in 1992. Instead, aid was based on whatever districts had received the previous year, regardless of increases or decreases in enrollment or other factors. “Hold harmless” provisions protected some districts from sharp cuts while depriving others of redistributed resources. In 2008, the state adopted a new formula based on a legislative cost study of what it would take to actually meet state standards. But the state never funded the new formula at the projected levels and, again, suspended its use in 2011 after the fiscal crisis. In 2016, the legislature adopted yet another formula that allocated funds more fairly, but only a fraction of total state education aid is distributed according to its provisions. Now, pending a possible appeal of the court ruling, a new remedy phase will try to untangle the mess of overlapping systems that keep Pennsylvania schools strapped and underfunded.

In his first budget, unveiled a month after the Pennsylvania court ruling, Gov. Shapiro proposed a 7.8 percent increase in education spending, but also ended the Level Up program that directed additional funds to the poorest districts, including Philadelphia. Shapiro promised more reform to come, but the advocates and attorneys who brought the case said in a statement, “This year’s proposed education budget does not do enough to meet the standard set by our state constitution and the urgency of this moment.” 

Even where progressive funding formulas are in place, there are multiple ways schools can be stripped of resources. Pennsylvania districts made $2.6 billion in charter school payments for 2020–21, with $1 billion going to dubious cyber charter schools. The same year corporate tax abatements cost schools in New York state $1.8 billion in lost revenue. In 27 states, voucher programs divert public funds to support private tuition and other non-public expenses. As articles elsewhere in this issue explain, underfunded schools and districts are also caught in an increasing web of debt that siphons funds from classrooms to financial institutions. Combined with austerity budgets and the slim prospects of dramatically expanded federal investment anytime soon, the current school funding system provides a shaky foundation for educational equity and adequacy, let alone social justice. 

“Education Debt” and Funding Justice 

Almost 20 years ago, educator and scholar Gloria Ladson-Billings put the year-to-year shortfalls in school funding in context. She spoke of an accumulated “education debt” with “historical, economic, sociopolitical, and moral” dimensions. Rather than a one-year budget “deficit,” she argued, the U.S. “education debt” was akin to the “national debt” amassed cumulatively over the country’s long and unequal history. (For comparison, the federal budget deficit for FY2022 was $1,375 billion. The “national debt” was $30.93 trillion.)

Ladson-Billings used this analogy to reframe the achievement gap as the inevitable outcome of unequal treatment over centuries. The analogy holds for funding as well. 

Today’s “education debt” includes the untold costs of Jim Crow schooling; the social, moral, and economic costs of the exclusion and underserving of immigrant and non-English-speaking students; and the degradation of Native education through racist mission schools and later boarding schools and laws that prevented the use of Native languages in Indigenous schools.

“Taken together,” Ladson-Billings said in her famous 2006 address, “the historic, economic, sociopolitical, and moral debt that we amassed toward Black, Brown, Yellow, and Red children seems insurmountable. . . . The images should remind us that the cumulative effect of poor education, poor housing, poor health care, and poor government services create a bifurcated society that leaves more than its children behind.” 

As long as public education survives, there will be struggles over funding it. To build on the efforts since San Antonio and win future victories, school funding campaigns will need to find multiple pathways forward, including some new ones. 

Fifty years of school funding litigation have shown that state courts and legislatures are both highly political and subject to popular pressure. To succeed, fair funding coalitions must mobilize ever-broader bases of parents, students, and communities. They must also strengthen communication and coordination across the legal, legislative, and public engagement sides of such efforts. 

One way to do that is to begin building out campaigns before the lawsuits are even filed. Public hearings and community speak-outs about the daily, on-the-ground effects of inadequate and unequal school funding can help build public support and create a compelling record that can be used in court. Similarly, sustained public conversation facilitated by advocacy groups and coalition partners, about how new resources should be used and the many ways public education can be improved, can begin building grassroots awareness and statewide networks that can support and shape future “remedies.” 

In New York, advocacy groups led by parents and organizers from communities of color built statewide campaigns that have pursued such strategies and endured over the long haul. The Campaign for Fiscal Equity (CFE) and the Alliance for Quality Education have led efforts that have stretched from the 1993 filing of a court challenge to a landmark agreement by state officials to provide more than $4 billion in new education funding by 2024. “From the outset of the filing of the litigation,” wrote one of the group’s founding members, “CFE has involved thousands of citizens throughout the state in an extensive deliberative process to help develop the positions that the plaintiffs presented to the court in the trial and to prepare the ground for successful implementation of a final court order. . . . The realization that their input might help determine the outcome of this major constitutional issue intrigued and excited many of the education advocates, parents, teachers, administrators, school board members, and other community members that CFE sought to engage in this public dialogue.”

In several successful campaigns, the state teacher unions have played a pivotal role. The Washington Education Association funded a court challenge with a special dues assessment approved by the membership. The Massachusetts Teachers Association provided funding and institutional support for legal, research, organizing, and public engagement efforts.  

“After five decades advocating for school finance reform, [there is] an urgent need to deepen understanding of how differing strategies — from litigation to research to grassroots organizing to communicating with the public — can combine to achieve successful school funding reform in the states,” says ELC-NJ.

The fight for funding justice will also need new vision. In the face of expanding voucher and privatization efforts, continued austerity, and the pervasive social inequality that threatens the premises of public education, school funding campaigns need to tie demands for better resources to a more powerful vision of what schools can be. Ultimately, it is not enough to demand “adequacy to meet state standards.” 

Realizing this, some researchers and policy advocates have begun to outline a vision of transformative school funding that builds on the work social justice educators have done to develop “culturally sustaining” curriculum and pedagogy. In Our Children Can’t Wait, a new volume of essays edited by Joseph Bishop, the head of UCLA’s Center for the Transformation of Schools, researchers Oscar Jiménez-Castellanos, Danielle Farrie, and David M. Quinn outline a framework that 

means changing the focus from remedies that compensate for perceived deficits of marginalized groups and communities and instead creating systems that build on and sustain the linguistic and cultural diversity in school communities. . . . The foundation of this work is that students’ success is dependent on teaching and curriculum that both values students’ cultural knowledge and experiences and gives them the tools to critically assess the world around them. 

In terms of school finance, this means expanding notions of the “additional” resources that students need to succeed. Instead of programs and services that focus narrowly on students’ ability to meet state benchmarks, an asset-based model would focus on programs that build on students’ existing talents, explore and deepen their understandings of their own culture through literacy and art and provide them with the tools they need to critically engage with the social and political systems surrounding them.

Not surprisingly, there are as yet few well-developed examples of transformative justice in school finance. But such aspirational, community-based, student-centered, anti-racist, and culturally sustaining engagement must become a prominent feature of school funding campaigns if the promise of transformative school finance is to be realized.

In the final analysis, U.S. school funding mirrors — and reproduces — the social and economic inequality we see all around us. The details are complicated, but the heart of the matter is simple: Most schools don’t get enough money, and the money they do get is not distributed fairly.