More than 50 years after the U.S. Supreme Court outlawed school segregation in Brown v. Board of Education, the nation's schools are still plagued by inequalities, yet the High Court today declines to intervene on behalf of equal educational opportunity for all children. In the words of Justice Clarence Thomas, "... this Court does not sit to ... solve the problems of 'troubled inner city schooling.' ... We are not social engineers."
The Supreme Court began its long withdrawal from the civil rights fray in the early 1970s, after two decades of activism on racial integration. Now, re-segregation is the norm. Black and Latino students are again increasingly isolated in predominantly minority schools. But, as Michael Rebell, a professor of law and education at Teachers College, Columbia University, convincingly shows in his new book, Courts and Kids: Pursuing Educational Equity through the State Courts, there is a pragmatic path to equality in the schools that avoids highly charged debates over racism and local control.
Courts and Kids tells the surprising story of how state courts, based on the language in state constitutions, threw out unfair school finance systems around the country and ordered measures to improve the performance of poor and minority students. Unfortunately, Rebell shows, they typically failed to make sure the legislative and executive branches complied with their rulings.
Courts and Kids is the fifth book by Rebell, who heads the Campaign for Educational Equity, a research and policy institute that is part of Teachers College. Here, he proposes a model for lasting social reform in the schools, based on 35 years of trial and error at the state level. He calls it a "blended separation of powers" approach: It hinges on the willingness of state judges to work with governors and state lawmakers — over the long term, if necessary — to set high standards, develop effective programs, calculate the cost of a quality education for all, create fair funding systems and assess student progress. The courts must have the staying power to ensure that the other branches of government do their job, Rebell says. Money matters, but so does oversight — for 20 years, if that's what it takes. "Only with court involvement has our nation made significant inroads into our intractable educational inequities," Rebell says.
The stakes are high. Nearly two-thirds of today's workers need advanced reading, writing, mathematical and critical-thinking skills to compete in the global economy, compared to 15 percent of workers 20 years ago, according to Achieve, a nonprofit educational reform group. And as the U.S. Supreme Court said decades ago, democracy "depends on an informed electorate."
"The stark fact," Rebell says, "is that over the next 50 years, the students from minority groups who are now disproportionately represented among dropouts and low-achieving students will constitute a majority of the nation's public schools. If they are not capable citizens and productive workers, the continued vitality of our democratic culture and America's ability to compete effectively in the global marketplace will be seriously jeopardized."
Since 1973, lawsuits have been filed in 45 states on behalf of minority and low-income students, challenging the validity of state education finance systems based on property taxes. These systems flagrantly favored school districts in affluent white suburbs and discriminated against poor districts in urban and rural areas with high minority populations.
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Courts and Kids by Michael Rebell offers a detailed analysis of why state courts have taken up the mantle of promoting the vision of educational equity, and it shows how successful they have been. To buy the book, click the link below.
Courts and Kids (University of Chicago Press)
Since the late 1980s, the plaintiffs in these cases have won nearly 70 percent of the time — a reflection of the continuing inequality of education for poor and minority students half a century after Brown v. Board of Education. Rebell himself pioneered the legal theory and strategy behind the lawsuits, based on the right of all students to a "sound basic education." And, he says, the high number of favorable rulings reflects "the continuing vigor of America's egalitarian tradition."
Yet while the state courts have shown extraordinary support for students' rights, they don't often follow through. Too many judges, Rebell says, feel an "exaggerated apprehension" about getting involved, say, to ensure that the right amount of money gets to the right school districts. It's not day-to-day micromanaging that's needed, Rebell insists: It's common-sense supervision.
Without it, he says, poor students will continue to languish. As of 2003, for example, New York state was requiring its students to pass a science exam based in part on experience in the lab, but nearly a third of New York City high schools had no labs. In California, as of 2000, high schools in many poor and minority communities were not offering the required courses for admission to state universities.
Only in Kentucky, Massachusetts and Vermont have the legislatures moved within months of court rulings to inject equity into school financing, Rebell shows. In 1990, Kentucky enacted one of the most sweeping education reform measures in American history. It set specific learning goals, mandated state-funded preschools and school technology systems and required the state's department of education to develop a model curriculum. Large increases in funding for poor districts followed, and students' scores improved.
In Massachusetts, the Legislature increased school spending by $10 billion over time and sharply reduced the funding gaps between rich and poor districts. In Vermont, revenues from property taxes, sales taxes, the state lottery, Medicaid reimbursement and the general fund were placed into a state education fund that could not be used for other purposes.
Even so, the achievement gap persists in these states, Rebell says.
In vivid detail, Courts and Kids recounts how school equality waxes and wanes with the courts' enthusiasm for getting involved.
A trial court in Kansas had to rule three times that the state education finance system was unconstitutional. Each time, the Legislature would initiate some reforms, the court would retreat, and the reforms would unravel. The "Gunfight at the K-12 Corral," as one commentator called it, came in 2005, when the Kansas governor and Legislature defied the state Supreme Court's deadline for a big funding increase for education. Yet after the court threatened to close down all the schools, they quickly and effectively complied. Today, low-income students in Kansas regularly outscore their peers nationwide.
New Jersey achieved parity in school funding and dramatically improved test scores in poor, urban districts — but only after two dozen court orders. The Arkansas Supreme Court appointed special masters three times to examine all aspects of the educational system. Having twice relinquished its jurisdiction, the court finally concluded that there was a need for "constant vigilance to ensure the constitutional goal is met."
Meanwhile, courts in seven states — Alabama, Florida, Illinois, Nebraska, Oklahoma, Pennsylvania and Rhode Island — have dismissed "sound basic education" lawsuits from the outset, saying it was not their role to get involved. "This landscape is littered with courts that have been bogged down in the legal quicksand of continuous litigation and challenges to their states' school funding systems," the Nebraska Supreme Court said. "Unlike those courts, we refuse to wade into that Stygian swamp."
Says Rebell: "They have simply decided, without even hearing any evidence, that even if millions of children are being denied these critical rights, the courts are not capable of doing anything to substantially improve the situation."
Courts and Kids contains too much legalese, and the case studies could have benefited from more information in the text, as opposed to the footnotes. But in less than 100 pages, Rebell makes a compelling case that court resolve can clear the path to equal opportunity in education — and keep it clear. Governors view education as expendable when a recession hits. Lawmakers pander to white suburban voters. School districts manipulate test scores.
If the courts don't stand up for kids, Rebell asks, who will?