U.S. Supreme Court case laid the groundwork for protracted battles over school-funding equity

EDUCATION

March 23, 2023, marked the 50th anniversary of the Rodriguez Supreme Court decision that many hoped would be the next logical extension to Brown v. Board’s order that sought to end segregation in America’s public schools.

In the Rodriguez case, the plaintiffs sought equal funding for equal effort to overcome race-based financial discrimination in schools. In the Brown case, the court rejected the fallacy of “separate but equal” and decided that public-school segregation was unconstitutional.

Twenty years later, the court decided that equity in funding was not required because public education is not a fundamental right protected under the federal constitution.

Justice Thurgood Marshall, who led the legal team in Brown, wrote a powerful dissent in Rodriguez. While the Rodriguez decision limited the reality of Brown on the federal level, it resulted in a nationwide state court effort to promote funding equity.

The state cases ignored the federal constitution and relied instead on state constitutional provisions with the majority throwing out unfair funding systems. Many of these cases required decades of litigation to overcome fierce political resistance designed to protect each state’s most privileged communities. New Hampshire’s Claremont case was one of these.

Justice Lewis Powell, who wrote the decision on the Rodriguez case, was considered the “education justice” because of his school board service. He was also a powerful corporate lawyer who led Virginia’s most influential law firm. He was a former president of the American Bar Association and an ardent anti-communist. Powell was appointed to the Court by Richard Nixon and began his service one year before he wrote the Rodriguez decision.

A three-judge panel initially heard the Rodriguez case in Texas. It found that the wealthiest communities enjoyed the lowest taxes, yet raised and spent more for their children’s educations than the poorest districts, and the state’s funding system served to worsen the inequities. The panel of judges initially stayed action in the case to allow the Texas legislature to craft a solution, which the legislature failed to do.

Demetrio Rodriguez was the parent of children in the Edgewood School District. Edgewood had the least property wealth and the lowest average income of San Antonio’s seven school districts. Edgewood’s students were 90 percent Mexican American and 6 percent Black. Despite paying the highest property taxes in the area, Edgewood raised and spent less per pupil than the other school districts. The Texas state funding system also contributed less money to Edgewood than it did to wealthier districts.

Powell’s prior education experience was relevant to his work on the court. That experience, however, was not entirely positive. Powell was appointed to the local Richmond School Board and later the State Board to avoid the appointment of each board’s first post-Reconstruction Black member.

Powell’s law firm opposed Thurgood Marshall in the Brown desegregation cases and continued to represent Prince Edward County when it defied the Supreme Court by closing its schools for five years to avoid providing equal educational opportunities to Black children.

While Powell privately opposed segregation, he never publicly spoke out against it, and when he left his position as chair of the Richmond School Board in 1961, only two of the district’s 23,000 Black children attended a white school. Powell also wrote the influential “Powell Memo” shortly before Nixon tapped him to join the court. The memo became the blueprint for today’s libertarian business and religious conservative movement and the Koch Brothers dark money scheme that now enchains democracy.

Relevant to Rodriguez, Powell’s memo expressed loathing for unions and social science faculty who he considered too liberal. Fear of teachers’ unions and a refusal to accept social science led Powell to reject the thrust of the plaintiffs’ data and adopt conclusions that have now been repudiated in state court litigation.

Powell believed funding inequities were inconsequential once a base amount was available. He also concluded that equal revenue for equal tax effort would undermine local control. The Texas attorneys general also played on Powell’s anti-communist bent by claiming fair funding was a socialist plot.

Powell acted as an unelected policymaker when he chose a methodology to decide the Rodriguez case by reasoning that only state action affecting rights mentioned in the federal constitution should be carefully scrutinized. Otherwise, Powell claimed he had no choice but to defer to the Texas legislature, even though it had shown an unwillingness to act.

He also eschewed consideration of a middle approach. His conclusion that education is not a fundamental right ignored Brown’s finding that education “is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.”

The decision that education is not a federally protected fundamental right, because it is not referenced in the Constitution, is also at odds with Powell’s vote earlier the same court term to protect reproductive rights even though neither abortion nor privacy are mentioned in the Constitution.

There are two interesting side notes. First, when Rodriguez was lost, a young lawyer named Jack Middleton was in federal court before then District Court Judge Hugh Bownes arguing for funding equity in New Hampshire on behalf of NEA-NH, the state’s teachers union.

The NEA-NH case was dismissed because of the Supreme Court’s ruling. Second, although Powell did not see it this way, it is clear the NH Supreme Court under Chief Justice David Brock saw the Claremont case as an extension of Brown because, at key points in the Claremont litigation, the Supreme Court relied on Brown and on the cases decided to enforce the Brown desegregation decision.

While funding equity will never be achieved on a federal level as a result of the Rodriguez decision, it is long past time for New Hampshire to achieve this hallmark of a Democratic society as a state.

Andru Volinsky was lead counsel in the Claremont school-funding cases, was a two-term executive Councilor, ran for governor and is now the Civic Scholar in Residence at Franklin Pierce University.