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January 06, 2023 HUMAN RIGHTS

Inequitable and Inadequate School Funding

by Stephen J. Wermiel

Fifty years ago, the U.S. Supreme Court effectively closed federal courthouse doors to constitutional complaints about inequality in funding for public schools. Since then, claims of inequity between richer and poorer school districts have overwhelmed state courts and legislatures and deeply divided politics in dozens of states with only limited progress.

Little has changed since University of Chicago Law School Professor Geoffrey Stone observed several years ago that “Although a few state legislatures and state courts have reformed their state’s funding system to promote greater equality in public education, the situation in the vast majority of the states has gotten only worse with time.”

Since 1973, claims of inequity between richer and poorer school districts have overwhelmed state courts and legislatures and deeply divided politics.

Since 1973, claims of inequity between richer and poorer school districts have overwhelmed state courts and legislatures and deeply divided politics.


On March 21, 1973, the Supreme Court decided San Antonio Independent School District v. Rodriguez, ruling by a 5–4 vote that substantial inequality in funding between two San Antonio school systems did not raise substantial issues under the U.S. Constitution.

The lawsuit was filed by parents in the significantly low-income and predominantly Mexican American Edgewood Independent School District. They challenged the Texas system of funding public schools, which had three components: a state per-pupil contribution, revenue from the local property tax, and support from federal aid. Because the Edgewood region had low property values and very little business or industrial base, the local property tax rate was the highest in the area but only generated $26 per pupil at the time. The state added $222 per pupil and federal aid of $108 for a total of $356 per student.

The Edgewood parents compared their situation to the Alamo Heights Independent School District, a wealthier area in San Antonio with a largely white population. With high property values and local businesses, the tax rate was lower than Edgewood but produced $333 per pupil. The state added $225 and federal aid of $36 for a total of $594 or $238 more per student than Edgewood.

The lawsuit argued that this funding inequity was unconstitutional for two important reasons: first, that discrimination in education funding on the basis of wealth or income level violated the equal protection clause of the Fourteenth Amendment, and, second, that the Edgewood students were deprived of a fundamental right to education.

A three-judge federal district court agreed with the arguments made and ruled in 1971 both that wealth was a “suspect” characteristic when used by governments to make decisions and that education was a fundamental right. Both of these conclusions would have required a federal court to examine school funding disparities under the most demanding scrutiny, making it difficult for a state to justify the inequality.

Both conclusions would also have reinforced the Supreme Court’s landmark 1954 ruling in Brown v. Board of Education. There, the Court said that public education was likely the most important function of the state and doubted whether anyone could be a full and equal participant in our democracy without access to education. Racial segregation in public schools deprived Black children of equal access to education, the Court ruled.

Many educators and legal experts argued then—and now—that eliminating discrimination in funding for public schools had to go hand-in-hand with eliminating racial segregation to maximize equal educational opportunity.

The Supreme Court was not persuaded. In an opinion by Justice Lewis Powell, the Court said that the class of poor people was difficult to define, differing from other government classifications based on race, gender, or national origin. Powell also said that when the Court considered wealth discrimination in past cases, it was because an individual was deprived entirely of a right, for example, the inability to obtain a court transcript for a criminal appeal without funds to pay for it. In San Antonio, however, Powell said, no one was denied an education because of income level.

Justice Powell also said that education was not a fundamental right implicit in the Constitution. “In addition to matters of fiscal policy, this case also involves the most persistent and difficult questions of educational policy, another area in which this Court’s lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels,” Powell wrote. In the absence of any factors to trigger the Court’s most rigorous constitutional scrutiny, Powell concluded, the Texas education system adequately served rational purposes.

Several justices wrote dissenting opinions, none more impassioned than Justice Thurgood Marshall, who successfully argued against racial segregation in Brown v. Board of Education. Marshall wrote that the Court’s ruling “can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens.” Marshall said that “having established public education for its citizens, the State, as a direct consequence of the variations in local property wealth . . . has provided some Texas schoolchildren with substantially fewer resources for their education than others.”

Descriptions vary on how the landscape of school funding has changed since 1973. Most states have faced litigation over disparities in education funding or over underfunding education generally. Only a handful of states have escaped. Because the Supreme Court essentially shut off school funding claims under the U.S. Constitution, the lawsuits that have occurred in most states have involved provisions of state constitutions, which guarantee some form of public education. In many cases, the litigation has been protracted.

Consider Texas itself. The Texas Supreme Court found the state education funding system unconstitutional in 1991 and 1992, constitutional in 1995, unconstitutional again in 2005, leading to new legislation, and constitutional again in 2016. The decades of school funding litigation took place under the state constitution’s guarantee of an “efficient system of public free schools” to promote “a general diffusion of knowledge.” Even after so many years, when the Texas Supreme Court upheld the system in 2016, the decision said the legislature could do a better job. In an opinion by Justice Don Willett, now a judge on the U.S. Court of Appeals for the Fifth Circuit, the court said, “Texas’s more than five million school children deserve better than serial litigation . . . they deserve transformational, top-to-bottom reforms.”

In New Jersey, litigation has spanned decades under the case name Abbott v. Burke. The New Jersey Supreme Court has issued more than 20 decisions in the case between 1985 and 2011. According to the New Jersey-based Education Law Center, which has long represented the plaintiffs, the litigation is “one of our nation’s most ambitious and far-reaching efforts to improve public education for poor children and children of color.”

In many states, however, improvement is elusive. Some conservative commentators suggest that spending more money on public education does not correlate to improved student education and that other reforms are needed for public education.

But there is no stopping the litigation aimed at improving school funding. And many education advocates say there is still a tremendous amount of work to be done. In a 2020 report entitled Closing America’s Education Funding Gaps, the Century Foundation wrote, “By underinvesting in our public schools, we rob millions of American children—particularly Black, brown, and low-income children—of the opportunity to succeed.” The report said the nation is underfunding education by $150 billion per year compared to what would be necessary to make sure children have access to quality education.

Examples from the Education Law Center’s 2021 report, Making the Grade: How Fair Is School Funding in Your State?, highlight the problem. According to a chart of expenditures by state, 14 states spend more per pupil in districts with low poverty levels and less in districts with high poverty levels. For example, Nevada spends $12,798 per pupil in districts with a low poverty level but spends only $8,731 in high-poverty areas, a difference of 32 percent. The disparity of greater funding for better-off areas than for poorer districts is 18 percent in Illinois, 17 percent in Missouri, and 14 percent in Connecticut, to pick a few examples.

At the other end of the spectrum, numerous states spend more on poorer districts. Alaska and Utah, for example, spend 57 percent more on poorer areas than on wealthier areas.

Overall, the Education Law Center said the report “paints a bleak picture of the condition of public education finance systems across the nation. There are vast gaps in overall levels of school funding among states.” The report continued, “Millions of the nation’s students are consigned to schools lacking in the resources essential to afford them a meaningful opportunity for success in school. The need for school finance reform remains urgent and long overdue.”

Fifty years after the decision in San Antonio, however, while the states continue to wrestle with inequitable and inadequate school funding, there is no chance that the Supreme Court will revisit the issues.

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Stephen J. Wermiel

2012-13 Section Chair, ABA Section of Civil Rights and Social Justice; Member, Human Rights Magazine Editorial Board; Co-Chair, ABA Section of Civil Rights and Social Justice Free Speech and Free Press Committee; Professor of Practice of Law, American University Washington College of Law

Stephen J. Wermiel teaches constitutional law at American University Washington College of Law and is a past chair of the ABA Section of Civil Rights and Social Justice and a member of the Human Rights Magazine editorial board.