New Answers to Hard Questions Posed by Rodriguez: Ending the Separation of School Finance and Educational Policy by Bridging the Gap between Wrong and Remedy
New Answers to Hard Questions Posed by Rodriguez: Ending the Separation of School Finance and Educational Policy by Bridging the Gap between Wrong and Remedy
The legal wrong alleged in San Antonio Independent School District v. Rodriguez' was fairly clear. A significant number of children, including those most in need, received lower educational spending due to variations in local school district wealth and not as the result of intelligent, goal-oriented educational planning. These children could not get relief from their state government in the form of increased state aid because of the natural dynamics of wealth redistribution in the state legislature. In reading the Rodriguez opinions, one gets the strong impression that the reality and force of this fundamental wrong was recognized by the entire Court.2 Four Justices in Rodriguez would have banned such discrimination under the United States Constitution, making fiscal neutrality in education a fundamental right of United States citizenship in all fifty states. But a majority of the Court was not persuaded. In rejecting the complaint, the Court raised a series of probing questions not so much about the legal wrong as about the effectiveness and feasibility of the remedies that might be available to cure the wrong without harming other important interests. Careful consideration of those questions in light of experience suggests that the standard of fiscal neutrality3 argued in Rodriguez and adopted in some state school finance cases does not provide sufficient guidelines for a legislature and does not go far enough in pushing for a guarantee of effective educational services, especially for children from poor families. This Article recommends a remedy that represents a more complete and satisfactory answer to the Rodriguez questions and, consequently, provides a superior guarantee of effective education. Distilled from recent school finance cases in Kentucky, New Jersey, and Texas, this three-part remedy provides for: (1) a base program of substantial equality of spending for ninety-five percent of a state's students (maintained at that level of equalization from year to year); (2) compensatory aid calculated to produce substantial educational gains for children affected by poverty (for example, about $1000 per pupil); and (3) a set of performance-oriented policies designed to improve the impact of educational resources on student achievement. The typical story told of the evolution of state constitutional litigation following Rodriguez is one of federalism-state constitutions are more receptive to the claim of education as a fundamental interest, and state courts are a more appropriate forum for supervising reform of largely state and local governmental functions." I see a pair of equally important, related developments in recent state constitutional cases. First, there has been a bridging of the gap between wrong and remedy. Public-law litigation (aimed at reforming public policies and institutions) usually lacks a one-to-one correspondence between wrong and remedy and demands enormous creativity in remedial design." Perhaps aided by time and experience, recent cases have been more creative about school finance remedies. The other development has been an end to the separation of school finance and educational policy. Perhaps reflecting diffusion of ideas in governmental circles, recent cases reflect advances in educational policy outside the courtroom, including stronger policies aimed at improving student achievement, as well as policies recognizing the need for substantial compensatory aid for students affected by poverty. Each of these developments has struck a responsive chord for judges interpreting state constitutions that emphasizes the importance of education to effective citizenship. The two developments are related because the remedial stage in public-law litigation is essentially a process of policy design.
