Rethinking Rodriguez: Education as a Fundamental Right

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1 Rethinking Rodriguez: Education as a Fundamental Right A Call for Paper Proposals Sponsored by The Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity University of California, Berkeley Boalt Hall School of Law Background and Purpose: Education as a Fundamental Right The recently-launched Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity (the Warren Institute) is a multi-disciplinary and collaborative venture designed to produce research and research-based policy prescriptions on issues of racial and ethnic justice. 1 The Warren Institute will engage the most difficult topics related to civil rights, race and ethnicity in a wide range of subject areas, and do so by combining several disciplines and professions, including law, the social sciences, public administration, and public health. Central to its methods will be concerted efforts to build bridges connecting the world of research with the world of civic action and policy debate so that each informs the other, while preserving the independence and quality of the academic enterprise. As one of its , the Warren Institute convened an interdisciplinary working group entitled Rethinking Rodriguez: Education as a Fundamental Right. Growing out of those discussions, for we will commission research and research-based policy papers to explore four clusters of inquiry that our working group deliberations have identified as centrally important. Our purpose has been to probe rigorously and creatively into what it would mean to make education a fundamental right today that is, a right belonging to all children, protected by an enforceable guarantee of adequacy or equality or both. We have not focused narrowly on mapping a litigation strategy for overruling San Antonio v. Rodriguez, the 1973 Supreme Court case declaring that education is not a fundamental right under the U.S. Constitution. Instead, we have considered how to give meaningful content to the concept of education as a fundamental right, and we have examined how it can serve as an organizing principle for novel constitutional, legislative, and policy initiatives not limited to overruling Rodriguez, and considered as a goal for research and advocacy at the national level, at the state level, or both. 1 In significant respects, it is modeled after The Civil Rights Project at Harvard, co-founded by Harvard Professors Gary Orfield and Christopher Edley (now Dean of Berkeley s Boalt Hall School of Law). 1

2 Call for Proposals To this end, the Warren Institute is commissioning a series of research and policy papers in the social sciences and law. We invite proposals related to the following topics. (We will also review proposals in this general arena, especially in so far as they address omissions in the framework offered in this document.) I. EMPIRICAL RESEARCH / DATA ANALYSIS It has been over thirty years since the Rodriguez decision, which dealt with grave interdistrict disparities in school funding resulting from heavy reliance on local property taxes (e.g., Edgewood vs. Alamo Heights in San Antonio, Baldwin Park vs. Beverly Hills in Los Angeles). Although Rodriguez itself did not ameliorate those disparities, several developments since then have altered the school finance landscape, including a trend toward centralization of school finance, with state shares increasing and local shares decreasing; school finance litigation in state courts; and a real increase in school spending nationwide, accompanied by increasing educational needs of a changing student population. Rigorous, up-to-date answers in the form of quantitative research or case studies are needed for the following questions: A. Have interdistrict disparities within states narrowed over the past thirty years? If so, by how much? In what states have these disparities narrowed the most? the least? In what states have disparities grown? What factors are associated with the narrowing (vs. persistence vs. growth) of interdistrict disparities? B. What role has school finance litigation played in narrowing interdistrict disparities? in increasing school funding overall? C. In the past fifteen years, plaintiffs seeking educational adequacy have achieved a number of favorable decisions in state courts. What remedies have those decisions produced? To what degree have the remedies been successfully implemented? What factors (e.g., political, economic) are associated with successful implementation of remedies? D. The Edgewood/Alamo Heights and Baldwin Park/Beverly Hills narratives draw a close link between race and funding inequity. But not all highminority districts are underfunded. To what extent is racial minority concentration associated with underfunding of schools? How should various cost factors (e.g., educational needs, regional costs, municipal overburden) be taken into account in determining whether high-minority schools are underfunded? E. Similarly, to what extent is poverty concentration associated with underfunding of schools? 2

3 F. The lion s share of legal and policy attention over the past thirty years has focused on interdistrict disparities within states. How does the magnitude of such disparities compare with (a) disparities between schools within districts and (b) school funding disparities between states? We will consider proposals for other empirical subjects, subject to our resource constraints. II. LAW / DOCTRINE / THE CONSTITUTION/FEDERALISM A right to quality education may be anchored in several possible sources of law. Despite Rodriguez, the U.S. Constitution contains many conceptual hooks for implying a right to education. State courts have found such rights under education provisions of state constitutions. Federal statutory law (e.g., IDEA) can define educational rights that may be understood as sub-constitutional ; statutes can also frame substantive goals (e.g., NCLB) that point to a right but have limited or no private enforceability. Several international covenants include rights to education. Finally, recent Supreme Court jurisprudence suggests possibilities for an evolving interpretation of constitutional rights informed by changes in society, changes in the laws and practices of the several states, and directly relevant strands of international law. Key questions in this area include the following: A. In the past decade, adequacy has appeared to replace equity as the organizing legal concept for judicially-assisted school finance reform. Has the adequacy-vs.-equity debate come to rest? Does historical experience vindicate adequacy as the more effective legal theory for defining a right to education? If so, can this be faithfully reconciled with Brown? B. Modern histories of Brown have lamented the fact that Brown turned out to be more symbol than substance as far as equal educational opportunity is concerned. Some have even suggested that the symbolic victory drained momentum from the hard work of achieving substantive change. Are similar hazards present in current efforts to establish a legal right to quality education? Are current efforts misguided because of this concern? How might such hazards be mitigated or avoided? C. Are courts, especially federal courts, inherently limited in their capacity to meaningfully declare and effectuate a right to quality education? What are alternative legal pathways (e.g., watershed legislation) to establishing a meaningful right to education? How might courts and legislatures work together in articulating, elaborating, and enforcing such a right? D. How have federal and state courts used social science evidence in deciding the merits and the remedies in litigation related to education finance, adequacy 3

4 and equity? How can social science research be most useful and effective in a judicial forum? E. What is the best argument for a right to quality education under the U.S. Constitution? At least since the Warren Court, equal protection and substantive due process doctrines have provided the dominant (yet largely unsuccessful) constitutional methods for declaring positive social or economic rights. Are there better arguments for a right to education based on the text, history, and core values of other parts of the Constitution for example, the Thirteenth Amendment? the Citizenship Clause or Privileges or Immunities Clause of the Fourteenth Amendment? the Republican Form of Government Clause? or the structure of government contemplated by the Constitution as a whole? Of what relevance to interpreting the Constitution are developments in state constitutional law? What are the pluses and minuses of amending the Constitution to establish a right to education? F. Constitutional arguments for a right to education typically invoke one or both of two fundamental values: citizenship and human dignity. These two values are not coextensive and have points of friction. What normative premises underlie each concept as a foundation for educational rights? In what circumstances are the concepts in tension with each other? In particular, what educational rights should non-citizens have? What educational policy implications follow from each value? Can the two concepts be harmonized, or their points of friction minimized, within a broader theory of educational rights? G. What are the attractions of efforts to establish a more robust right to education in state law as compared with efforts directed at national law? Are parallel strategies likely to conflict, or can they be mutually reinforcing? What substantive differences are desirable, if any in state versus federal definitions and enforcement regines? III. POLICY DESIGN / INSTITUTIONAL ROLES / ENFORCEMENT / ACCOUNTABILITY Whether or not courts play a role, an effective right to quality education depends on intelligent policymaking that gives content to the right. Such policymaking may draw on various mechanisms of accountability and will involve an interdependent matrix of local, state, and federal responsibilities. The aim is to develop the best institutional and policy architecture for making a right to education meaningful. Key questions include: A. NCLB imposes a federal framework on accountability, but allows individual states to define their own standards. How might education policy change if we were to take seriously a nationally uniform right to equal or adequate educational opportunity? What forms of nationalization could arise without undue federalization of education policy? Although earlier efforts in this vein 4

5 (e.g., voluntary national testing) were unsuccessful, has NCLB changed the policy context in ways that facilitate this direction of reform? B. How can the accountability mechanisms of NCLB be adapted or modified to guarantee a right to quality education for every child? What lessons have we learned about the capacity of low-performing schools and districts to respond to systemic accountability? What unintended consequences for disadvantaged students has NCLB-based accountability produced? How might unintended problems be remedied? How can current policies maintain the hard edge of accountability while at the same time broadening the definition of educational quality beyond test scores? C. What is the proper role of choice in a well-functioning accountability system? Does a right to quality education entail a right to choose where one s children go to school? D. What roles might non-governmental actors both local (community-based) and national (research- or advocacy-oriented) play in fostering accountability? E. What can we learn from the tools and institutional arrangements used to enforce rights to education in the international context or under other nations laws? Are the experiences of South Africa and India in enforcing positive economic rights instructive? What about the accountability mechanisms applicable to the International Covenant on Economic, Social, and Cultural Rights? F. Many of the questions above can be framed with comparable relevance to state-level efforts to fashion a more robust right to quality education. Are the answers on enforcement and accountability any different at the state level? IV. POLITICS / PUBLIC ENGAGEMENT / GRASSROOTS MOBILIZATION Securing an effective right to quality education in law or public policy requires broad public support. Building public support, in turn, requires the distillation of research-based concepts into simple and compelling public ideas, as well as an approach to advocacy that engages not only legal or policy elites but also communitybased stakeholders. These challenges raise the following questions: A. In 1976, Derrick Bell wrote a noteworthy article called Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation. What lessons can we learn from school desegregation with respect to reconciling strategic legal and policy objectives with the needs and preferences of local communities? 5

6 B. In states such as Kentucky, Texas, and New York where school finance litigation has been successful, and in other states where adequacy-type claims have been brought, how did the litigation foster public engagement with the notion of a right to education? What strategies or best practices were used to align the objectives of litigation with the on-the-ground educational needs of community stakeholders? What kinds of connections were there between litigators and researchers, and what role did research play in shaping public understanding of the issues? C. Concepts of adequacy are sometimes thought to have broader political appeal than concepts of equity. Have the past fifteen years of adequacy litigation shown this to be true? Is the nation moving toward a political consensus in favor of a high floor of educational adequacy? Is such movement desirable? What risks does it involve? GUIDELINES The proposal s cover page should include (a) the title of the paper; (b) the author(s) and affiliations(s); (c) the name of the primary contact with and telephone number; and (d) the category into which the proposal fits (which specific empirical study; or under which general topical area). Paper proposals that are not related to the specific, larger empirical studies should be no longer than 5 double-spaced pages, excluding references, and should include a separate 250-word abstract (on a separate page). All proposals should describe (1) the questions and hypotheses to be addressed and the parameters of the research; (2) the data sources to be drawn upon; (3) the theoretical framework; (4) an indication of the amount of work already completed; (5) the paper s expected length; (6) initial conclusions and-or results, if available. Proposals for the specific empirical studies should address the same questions, but may be more extensive. We will provide significant honoraria to authors completing large, empirical studies and more modest honoraria (est. $1,500) to other authors, contingent upon funding, which seems very likely. Lead authors are expected to be available to participate, with a draft manuscript, in a conference in late 2005 or early 2006, at the University of California, Berkeley. Proposals must be received by July 30, They will be reviewed with the assistance of an advisory committee (in formation) of researchers and practitioners. Please submit proposals electronically to WarrenInstitute@law.berkeley.edu. Authors will be notified of selection by August 30, For more information, please contact Goodwin Liu at gliu@law.berkeley.edu. The codirectors of this initiative are Professor Goodwin Liu and Dean Christopher Edley, Jr., both of the University of California, School of Law at Berkeley s Boalt Hall. 6