The Fourth Wave of Education Finance Litigation: Pursuing a Federal Right to an Adequate Education

Lauren N. Gillespie

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Litigation challenging the amount of funding available to low-income school districts is one of several initiatives reformers have pursued to improve the quality of public schools.  This particular approach, so-called education finance litigation, is specifically focused on reducing the funding disparity that continues to persist among school districts.  The federal government provides approximately seven percent of funding for public education, making local property taxes a major source of funds for public schools and resulting in substantial funding disparities among school districts.  Education finance litigators seek to improve the quality of education in low-income school districts by increasing the amount of available funding. 

Litigants initially pursued this goal in federal court.  In San Antonio Independent School District v. Rodriguez1, parents of students in the Edgewood Independent School District alleged that variations in education quality, illustrated by unequal per-pupil spending across Texas school districts, constituted differential treatment that violated the Equal Protection Clause of the U.S. Constitution.  The litigants argued both that poverty was a suspect classification and that education was a fundamental right.  They based the contention that education is a constitutionally protected fundamental right in part upon the close nexus between education and an individual’s ability to meaningfully exercise explicitly protected constitutional rights, including the right to vote and the right to free speech. 

The plaintiffs filed the case during a period when the Equal Protection Clause appeared to be a powerful constitutional sword that could successfully attack public policy and other well-entrenched areas of the political order.  The perception of the Equal Protection Clause’s latent power was based in part upon the then-recent Supreme Court rulings in desegregation cases, wealth-based discrimination cases, and legislative apportionment cases. 

Therefore, the Supreme Court’s 1973 ruling against the parents was a surprising defeat for education finance litigators’ effort to challenge the amount of funding available to low-income school districts.  The Court held that poverty is not a suspect class because poor persons are too “amorphous” and “diverse” a group to justify treatment under strict scrutiny.2  The majority also held that education is not a fundamental right, thereby rejecting the litigants’ nexus theory as a basis for finding that education itself is a fundamental right.  In so holding, the Court noted that its prior recognition of the right to vote and the right to free speech was not a guarantee that people be provided “the most effective speech or the most informed electoral choice.”3

Following Rodriguez, advocates for equal funding redirected their litigation strategy.  They changed both the venue in which they filed—from federal to state court—and subsequently the strategy pursued—from seeking equitable funding across all school districts to ensuring that all districts have sufficient funding to provide an adequate education.  In light of these changes, scholars traditionally divide the history of education finance litigation into three waves: federal equality litigation, state equality litigation, and state adequacy litigation.  Current reformers are in the third wave of education finance litigation, pursuing an adequacy-based strategy in state courts.  However, this Editorial argues that given both the change in focus from equality to adequacy and the political and legal changes since litigants originally pursued a federal strategy, education finance litigants should augment their current efforts by initiating a fourth wave of education finance litigation and pursuing a federal adequacy litigation strategy.  Litigants would base this federal claim on the U.S. Constitution’s Equal Protection Clause, and/or the substantive rights under the Due Process Clause.  This new approach would also find support from the federal education statute No Child Left Behind,4 the Supreme Court’s own dicta supporting a potential constitutional guarantee of a minimally adequate education, and the definition of an adequate education that has emerged from education finance litigation in state courts. 

In Part I of this Editorial, I describe the history of education finance litigation in state courts and focus specifically on litigants’ changed focus from an equality-based to an adequacy-based litigation strategy.  In Part II, I argue that litigants should pursue a federal, adequacy-based litigation strategy.  I begin Part II by discussing the viability of a federal adequacy strategy in light of the development of judicially manageable standards for evaluating the adequacy of an education.  Additionally, I illustrate that if the Supreme Court were to make an output-based analysis of education quality, such an analysis would be consistent with the Court’s precedent.  Secondly, I consider how political and legal changes since Rodriguez have undermined primary aspects of the decision.  Finally, Part II ends with a discussion of two possible bases for finding a federal constitutional right to an adequate education without overruling Supreme Court precedent.  The Editorial concludes with a brief discussion of the value of a federal court decision finding that the Constitution guarantees all students the right to receive an adequate public education.  

I: The Aftermath of Rodriguez: Education Finance Litigation in State Courts and the Transition from Equity to Adequacy

Rodriguez seemed to foreclose the possibility of federal courts requiring states to provide public school districts with equal funding.  Therefore, following the decision, advocates initiated the so-called second wave of education finance litigation by redirecting their litigation strategy to focus on state courts.  The advocates grounded their equality-based argument in the equal protection clauses of the various state constitutions in combination with state constitutions’ education clauses, which require the states to provide educational services to school-aged children.  Initially, this litigation strategy produced some successful results.  However, in those states where the highest state court did find the education finance structure unconstitutional, substantial difficulties emerged both in terms of popular opposition to funding equalization efforts and the practical difficulties of achieving equal educational opportunity.  These initial experiences dissuaded other state courts from holding that the education finance structure in their state was unconstitutional.  By the early 1980s, plaintiffs had won only two education finance cases and, by 1988, fifteen state supreme courts had denied any relief.  The shortcomings of equality-based litigation were becoming clear.  As summarized by Professor Pete Enrich, “equalization of outcomes, or even actual services, has proven too ambitious a standard in the political process.”5

Therefore, advocates again redirected their litigation strategy by moving away from the traditional focus on per-pupil spending disparities and, instead, towards the overall sufficiency of funds that states allocated to public schools, a change that initiated the third wave of school finance litigation: state adequacy litigation.  State courts have been receptive to education finance advocates’ changed strategy.  Adequacy plaintiffs have prevailed in twenty-five states and have been victorious in ten of the fourteen cases decided between 2003 and 2005.  The adequacy-based strategy’s success in state court illustrates many of its advantages over equality-based arguments for improving educational opportunity.  The three main advantages are that adequacy: (1) is normatively more appealing and consistent with widely held societal values; (2) allows for continued local control of public education; and (3) directly focuses on the quality of education the state provides.

II: The Fourth Wave of Education Finance Litigation: An Argument for the Pursuit of a Federal Adequacy Litigation Strategy

Because of the advantages of challenging the adequacy of education rather than the relative equality of education finance, plaintiffs should augment their current efforts by pursuing an adequacy-based litigation strategy at the federal level.  Various changes since Rodriguez strengthen the viability of a claim that the federal government has failed to meet its duty to provide students with an adequate education.  Additionally, significant political and legal developments since 1973 have undermined many of the primary reasons the Rodriguez Court relied on in refusing to find a positive federal right to education.

The Viability of a Federal Adequacy Litigation Strategy

Changes since the Rodriguez decision have increased the viability of a federal court finding a right to an adequate education.  Four years prior to Rodriguez, the Supreme Court reviewed a fiscal equality suit involving disadvantaged urban students.6  A lower court had dismissed the case as nonjusticiable because, in the lower court’s view, there were no discoverable and manageable judicial standards by which to determine whether the state’s education finance system was inadequate to meet the urban students’ needs.  The Supreme Court affirmed without opinion, but the emphasis on the lack of judicially manageable standards was likely influential not only in that action but also in the Court’s Rodriguez decision.  In Rodriguez, the Court expressed concern about the effect of finding a constitutionally protected right to education and specifically noted the public education system’s lack of clearly defined goals.

Having allowed school finance litigation to percolate at the state court level, many of the Rodriguez majority’s concerns are no longer valid.  A consensus definition of an adequate education has emerged from the proliferation of state court litigation.  Further, No Child Left Behind has provided additional contours to the definition of an adequate education, and the required Adequate Yearly Progress Reports under No Child Left Behind provide data and statistics to help a court assess the adequacy of a particular education.

Additionally, the Court has previously analyzed whether the quality of an education satisfied guaranteed minimum standards.  In both civil rights education litigation and in later cases, the Court has supported students’ receipt of a meaningful educational opportunity and shown a willingness to consider and articulate the features that contribute to an adequate education.  In these prior cases evaluating particular educational experiences, the Court has tended to reject those factors that are central to an equity-based argument, such as per-pupil expenditure. Instead, the Court has given weight to those criteria that an adequacy-based theory tends to emphasize, considering the overall learning experience and the amount of knowledge students receive.

Changes Undermining the Rodriguez Majority Opinion

Significant political and legal changes since Rodriguez further undermine major aspects of the majority’s opinion and provide additional justification for adopting a new litigation paradigm that advocates pursuit of a federal adequacy-based litigation strategy.  One of the primary changes supporting a federal litigation strategy is the recent, increased involvement of the federal government in education.  Preserving federalism and maintaining state control over education was one of the Court’s primary concerns in Rodriguez.  While education historically has been regarded as an area best relegated to the states, current circumstances are considerably more conducive to federal judicial involvement in education.  The post-Rodriguez passage of federal legislation involving the federal government in public education illustrates that local control over public schools is diminishing.  Additionally, these federal education statutes, such as the IDEA,7 have also undermined the Rodriguez Court’s concerns about federal courts being well suited to become involved in education.  In 2007, the Court interpreted its judicial review power under the IDEA to include suits brought by parents in their own right, not derivative from their child, concerning their child’s receipt of the IDEA’s entitlement to a “free appropriate public education.”8

Bases for a Federal Right to an Adequate Education

The pursuit of a federal adequacy-based litigation strategy draws strength from political and legal changes that have spurred judicially manageable standards, developed Supreme Court precedent evaluating education quality, and addressed major concerns of the Rodriguez majority. However, the U.S. Constitution, unlike the education clauses of many state constitutions, does not explicitly guarantee a free public education.  Nevertheless, the following two sources provide the strongest bases for the Court finding a constitutional right to an adequate education: the Supreme Court’s own dicta in Rodriguez and the Supreme Court’s decision in Jackson v. Indiana.  The two theories, discussed below, based upon these sources are but two of many theories scholars have put forth to suggest how the Court could justify finding a positive right to education.  However, in light of the success and advantages that adequacy-litigation has enjoyed at the state court level, these theories best allow litigants and courts to draw strong parallels to adequacy litigation in state court and thereby incorporate the advantages of an adequacy-based theory.  Furthermore, the Supreme Court is more likely to accept these theories because neither directly contradicts the Rodriguez holding.

Under the first theory, litigants could base the positive right to an education on the Rodriguez Court’s own suggestion that there may exist a federally protected “identifiable quantum” of education.9  The Rodriguez majority did not absolutely reject the possibility that a federally protected right to education exists.  Rather, the Court never reached the issue of whether the plaintiffs’ Fourteenth Amendment rights would have been violated if the quality of public education in Texas fell below a hypothetical floor.   The State repeatedly claimed in its brief that Texas “assures ‘every child in every school district an adequate education’” and the plaintiffs offered no proof at trial “persuasively discrediting or refuting the State’s assertion.”10  As a result of this pleading deficiency, the Court could only hint that the Constitution might implicitly guarantee students “some identifiable quantum” of education.11

Alternatively, under the second theory, litigants could argue for a positive right to an adequate education based on the substantive due process requirement that compulsory school attendance laws trigger.  Developed by Gershon M. Ratner, this theory analogizes compulsory education to the criminal context and concludes that required schooling must provide students with an adequate education.  Compulsory school-attendance laws deprive students of various liberties.  Ratner argues that this implicates the substantive due process requirement that any deprivation be reasonably related to a legitimate government interest.  In Jackson v. Indiana,12 the Supreme Court considered the substantive due process rights of a criminal defendant who had been involuntarily committed to a state mental institution.  The Court held that the nature of the confinement must “bear some reasonable relation to the purpose for which the individual is committed.”13  In other words, when a defendant is committed for treatment, the state mental institution must provide treatment.  Although the facts of Jackson concerned compulsory confinement in a state mental institution, compulsory school-attendance laws similarly require children of a certain age to attend public school.  Therefore, by extending the Court’s constitutional analysis beyond its facts, Jackson supports a viable argument that there exists a federal right to an adequate education.

In the context of education, the purpose of compulsory attendance is to educate students.  Applying Jackson, compulsory education must be reasonably related to the purpose that it serves.  In other words, just as confinement for treatment requires the mental institution to treat its patients, confinement for education requires the school to educate its students.  Because it is not rational for schools to provide an ineffective education, Ratner concludes that “compulsory education is not reasonably related to its purposes unless schools provide adequate education in basic skills.”14  Both of these theories could allow the Court to find a federal positive right to an adequate education without overruling Rodriguez.


In light of both federal and state court decisions holding that disparities in school funding do not violate the federal Equal Protection Clause, advocates’ dedication and willingness to develop a new adequacy-based litigation strategy to improve the quality of public education for the nation’s underprivileged children was “remarkable.”15  Given the continued success of adequacy litigation in state court, it is now time for advocates to build upon these successes by redirecting education litigation to focus on the development and pursuit of a federal adequacy-based strategy.  Although state high courts continue to issue decisions in favor of education reform, this federal strategy must also be pursued because it offers unique advantages that make it better suited to improve the national state of education.  If the Court were to affirm students’ right to an adequate education, the decision would focus national attention on improving the quality of education for students in poor and underfunded districts.  Furthermore, if the Court were to recognize a federal right to a minimally adequate education, the federal government would then bring its “uniquely national perspective, powers, and resources to bear upon what has become, in scope and consequence, a truly national problem.”16.  State-by-state litigation is too slow and piecemeal to resolve the current crisis in education effectively.  Therefore, a federal adequacy-based litigation strategy should be pursued so that the Court can use its “power and legitimacy to demand that the political branches actually live up to their constitutional obligations to minorities when majoritarian institutions fail over time.”17


Copyright © 2010 Cornell Law Review.

Lauren N. Gillespie is a 2010 J.D. Candidate at Cornell Law School.

  1. 411 U.S. 1 (1973).
  2. Id. at 28.
  3. Id. at 36–38.
  4. No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (2002) (codified as amended in scattered sections of 20 U.S.C.).
  5. Peter Enrich, Leaving Equality Behind: New Directions in School Finance Reform, 48 VAND. L. REV. 101, 154–55 (1995).
  6. McInnis v. Ogilvie, 394 U.S. 322 (1969).
  7. Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400–1482 (2006).
  8. Winkelman ex rel. Winkelman v. Parma City School District, 550 U.S. 516, 527–28 (2007).
  9. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 36–37 (1973).
  10. Id. at 24.
  11. Id. at 36.
  12. 406 U.S. 715 (1972).
  13. Id. at 738.
  14. Gershon M. Ratner, A New Legal Duty for Urban Public Schools: Effective Education in Basic Skills, 63 TEX. L. REV. 777, 828 (1985).
  15. Michael A. Rebell, Conference Summary, Educational Adequacy, Democracy, and the Courts, ACHIEVING HIGH EDUCATOINAL STANDARDS FOR ALL 218, 228 (2002), available at
  16. Susan H. Bitensky, Theoretical Foundations for a Right to Education Under the U.S. Constitution: A Beginning to the End of the National Education Crisis, 86 NW. U. L. REV. 550, 552–53 (1992)
  17. Quentin A. Palfrey, The State Judiciary’s Role in Fulfilling Brown’s Promise, 8 MICH. J. RACE & L. 1, 40 (2002).

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