How States Fund Education

In the United States, the vast majority of funding for K–12 education is provided through state and local governments to school districts. Throughout history, school districts have remained highly segregated both by income/wealth and by race, leading to reduced levels of funding available for higher need districts compared to wealthier districts. The purpose of this chapter is to analyze funding disparities within states and to determine differences between states with respect to funding equity. First, the chapter begins with a discussion of the sources of revenue for education at the state and local levels. Second, it explains the purpose and design of state aid formulas to reduce funding disparities between districts. Third, using data from the School Finance Indicators Database, the chapter calculates funding effort and progressivity indices for each state. Fourth, it provides case studies on two states with more progressive and less progressive funding, New Jersey and Illinois. Finally, the chapter concludes with policy recommendations on how states can improve their school finance systems to provide adequate levels of funding for higher need districts.

Racial and Ethnic Equity in American Public Schools: Looking Ahead

Five scholars of racial and ethnic equity in public schools bring together insights from various disciplines to speculate about the path of racial and ethnic equity in American public schools over the next decade. They begin by describing the current state of racial and ethnic educational equity across various dimensions and also identifying turning points over the past several decades that led educational equity to where it is today. They then identify potential turning points over the next decade. The chapter thinks broadly about race and ethnicity and about ways in which the law impacts—and could impact—racial and ethnic educational equity.

Education in Virtual Environments

The bricks-and-mortar schools contemplated by American education law and regulation are discrete, bureaucratic institutions, where children interact in person with one another, and with adults who supervise them, inside fixed physical borders at fixed times. Their governance is likewise defined geographically. Virtual schooling, by contrast, is untethered from geography, is ubiquitously asynchronous, and involves the interaction of machine representations of people rather than of people themselves. Virtuality privileges the consumer over the bureaucrat, encourages the disaggregation and recombination of educational components on a bespoke basis, and brings different economies of scale and competitive features to the educational marketplace. The education law we have—the law of the traditional, embodied school—fits virtual technology poorly in critical respects. Virtuality demands fundamentally new legal approaches to areas as diverse as curriculum, attendance, student health and safety, privacy, parental responsibility, disability, student rights, discipline, governance, and equity. Responding to these demands provides occasion to see the law afresh, to reassess and redirect, to align principle and practice more closely, and ultimately to transform educational regulation in the service of equity and learning. This is an opportunity of a kind that has not presented itself since the beginning of the Progressive Era.

The Role of Lawyers in Education Reform

Lawyers make significant contributions to education reform efforts, as do community members and professionals from various other fields. This chapter outlines and distinguishes both the venues in which and ways that lawyers add value to education reform. First, it lays out the education reform landscape and highlights the policy-influencing occupations that lawyers can have within it. Because lawyers are found both outside and within the government system at the federal, state, and local levels and in the legislative, executive, and judicial branches, they have wide-ranging potential for impact. Second, the chapter explains the unique way a lawyer’s skills and way of thought influence and improve education reform. When lawyers are involved, an education reform initiative is likely to thoughtfully consider all perspectives, bridge expertise to the law, choose the right legal path, and engage in strategic communications and public support efforts.

Challenges Facing Immigrant Students

Because of the U.S. Supreme Court case, Plyler v. Doe, most immigrant students have a right to the same free, public K–12 education as their U.S. citizen peers, regardless of their residency status. Immigrant students are also covered by the same privacy laws that shield citizen students from unauthorized disclosure of sensitive information. In theory, these laws should work together to shield immigrant students from governmental and nongovernmental agents who might act adversely against these students and their families. Despite these apparent protections, immigrant students face special challenges that complicate their pursuit of guaranteed primary and secondary education. Most of these challenges are linked to limits within the logic of Plyler as it relates to federal immigration law. This chapter discusses how conflicts between these laws and their enforcement both define immigrant status and utilize it as a means to facilitate and frustrate access to educational opportunity. Any plausible efforts to minimize these challenges must negotiate this conflict with an eye toward improving immigrants’ access to education and collateral services.

Education Federalism: Why It Matters and How the United States Should Restructure It

Education federalism in the United States promotes state and local authority over education and a limited federal role. This approach to education federalism often serves as an influential yet underappreciated influence on education law and policy. This chapter explores how education federalism in the United States has evolved over time, its strengths and drawbacks, as well as how it has hindered efforts to advance equal educational opportunity. It argues that to achieve the nation’s education aims, education federalism must be restructured to embrace a more efficacious and efficient allocation of authority of education that embraces the policymaking strengths of each level of government while ensuring that all levels of government aim to achieve equitable access to an excellent education. The chapter proposes how to restructure education federalism to support a partnership between federal, state, and local governments to achieve equitable access to an excellent education. It also explains how this new approach to education federal could guide the United States toward a more impactful reauthorization of the Elementary and Secondary Education Act.

Schooling for Democracy: Past, Present, and Future

Education in America today lacks a meaningful vision. The equal educational opportunity goal proclaimed by the U.S. Supreme Court in Brown v. Board of Education has been undermined by the failures in the decades since of the federal courts to implement school desegregation effectively and of Congress and the state legislatures to follow through on their stated commitments to ensure that all children can learn at high levels. This chapter argues that both equity and excellence can be achieved in American education if (1) preparation for capable citizenship, the original purpose of public education in America, can be revived in a manner that responds to twenty-first-century needs for both equity and excellence, and (2) the courts play a sustained, constructive role in bringing about these changes by enforcing relevant constitutional provisions that require schools to prepare students for capable citizenship. The first part of the chapter describes how for the past half century, schools have systematically failed to prepare students to be capable citizens, and the causes of this failure. It then provides a detailed analysis of how children can be prepared appropriately to function productively as civic participants. The second part explains why the promotion of educational equity and excellence of this sort cannot, however, be realized without the active involvement of the courts, both to validate the importance of education for civic preparation and to establish the necessary preconditions for adequate and equal funding and racial and cultural integration that are necessary for these reforms to succeed.

The Muddled Distinction Between De Jure and De Facto Segregation

In 2007, the U.S. Supreme Court in Parents Involved in Community Schools v. Seattle School District No. 1 declared unconstitutional voluntary, race-based plans to integrate public schools in Jefferson County, Kentucky and Seattle, Washington. The decisionrested on a critical distinction in constitutional law between “de jure” segregation—resulting from purposeful discrimination by the government—and “de facto” racial imbalance derived from unintentional or “fortuitous” actions by state and private entities. The Court held that de facto school districts could not voluntarily assign students to schools according to their race for purposes of promoting integration. In a vigorous dissent, Justice Breyer argued the “futility” of the de jure–de facto distinction, contending that both districts should have been afforded the constitutional flexibility to pursue voluntary remedies that address racial imbalance in their schools. This chapter takes up Justice Breyer’s dissent to explore the complicated origins of school segregation outside the South and the federal cases that adjudicated its constitutionality. Its central contribution is to recover the often confusing legal narratives about segregation in the period after Brown and how federal courts struggled to discern the constitutional boundaries between de jure and de facto discrimination. The chapter briefly describes the constitutional turns that facilitated the Court’s decision in Parents Involved, including the advent of the intent requirement in equal protection and “colorblindness” doctrine, which treats any use of race as presumptively unconstitutional, regardless of its integrative purpose.

Religion in the Schools

Starting in the 1960s, the U.S. Supreme Court understood the Establishment Clause to strictly limit government’s ability to promote religion in the schools: The state could not lead prayers, it could not fund private religious education, and it could not teach religion as true in the public school curriculum. During the same period, the Court construed free exercise rights (in schools and elsewhere) in a fairly modest fashion by balancing religious rights against government interests. Beginning in 1990, the Court weakened the Free Exercise Clause still further. Today, however, the Court is moving to reshape the general law of the Religion Clauses, and the trend points (clearly) toward a greatly weakened Establishment Clause and (less clearly) toward a Free Exercise Clause that is at least somewhat more robust. The Court has also made clear that the Free Speech Clause grants religious speakers equal rights to speak on school property. These speech protections are powerful guarantors of religious liberty, even if no revolution in free exercise law materializes. This chapter surveys the constitutional law involving religion in the K–12 public schools, summarizing that law as it currently stands and offering tentative predictions about where it is headed. The chapter begins with the Establishment Clause limits on government religious expression in the public schools, then continues by discussing the free exercise rights of students and teachers, religion in the public school curriculum, and the rights of religious groups to speak on school property.

Developing the Free Mind

In the U.S. Supreme Court’s cases addressing students’ constitutional rights in school, the focus is near exclusively on the special constraints imposed on rights by the school context. Largely missing is any consideration of the special opportunities created by students as actively developing rights holders, despite the increasing attention to the significance of children’s ongoing development to their constitutional rights in other contexts. This chapter calls for similar attention to children’s development in the school context, and considers how that attention, generated by courts and then addressed by educators, might alter the scope and nature of children’s rights of expression, due process, privacy, and religious freedom in school. While educators will necessarily take the lead in preparing children to assume adult roles, it falls on courts to help define those adult roles to ensure that students’ experiences in school are designed to produce citizens with the inclination and competence to exercise the rights required to preserve our most basic constitutional values.