What Is a ‘Public Education’? 

State courts have been the primary judicial forum for challenging inequities in states’ public education funding since the U.S. Supreme Court held in 1972 that the federal Constitution guarantees no educational rights.

The 1972 decision, San Antonio v. Rodriguez, marked the end of what came to be seen as the first of several waves of school finance litigation. This first wave argued that educational inequity was a federal constitutional violation. The second wave characterized those same inequities as state constitutional violations, on a theory that state constitutions’ equal protection guarantees were more expansive than their federal sibling.

When second-wave arguments met with mixed results, litigators turned to the clauses in state constitutions that establish and regulate public schools. These education clauses, which have no federal equivalent, use a grab-bag of words — “public,” “free,” “common,” “adequate,” “thorough” — to characterize the kind of public schools that state officials must provide. Third-wave cases, also collectively called “adequacy” cases, located the constitutional error in school finance in its inconsistency with those requirements.

The metaphor appeals because waves are successive without being discrete. It also carries a connotation of high strategy — smart lawyers buffeting their target with successive waves of attack, from multiple angles, wearing down an opponent too entrenched to be felled by a knockout blow.

Like waves, each successive case is unique in its details but deeply similar in its overall structure to those that precede it. A school finance litigator transported from the 1990s to today would recognize many of the issues now percolating before states’ highest courts. What does an adequate education cost? Can states redistribute tax collections from richer to poorer areas? Does it harm public education when private schools collect government funds?

Indeed, the last several decades have shown school finance litigation to be Sisyphean. Because achieving educational excellence in poor districts likely requires expenditures dramatically higher than any being contemplated; because we simply do not understand the complex relationship between educational expenditures and educational outputs, beyond knowing that spending a marginal dollar will not necessarily bring any, much less proportional, marginal gains; and because by the time any number can actually be implemented, it is inevitably woefully out of date. For all of these reasons, well before any one lawsuit finally concludes, it seems past time to file the next.

New Hampshire’s supreme court in 2021, for example, remanded to a trial court to calculate how much money a state must spend to provide each of its children with a constitutionally adequate education. The trial court, 20 months later, came up with a minimum of $7,356.01 per child. That is not quite twice the amount the state now spends. That calculation is headed back to the highest court.

In a separate decision, the same New Hampshire trial judge disallowed his state’s practice of allowing local districts to retain property tax collections in excess of the amount required, insisting that these funds flow to the state for redistribution to poorer districts. The case is proceeding to trial on remaining claims.

Likewise, in North Carolina, state legislators are challenging the validity of judicial orders to the legislature to appropriate funds. They argue that such orders violate the constitutional assignment of the power to allocate funds to legislatures and involve courts in political questions. Notably, North Carolina’s supreme court is returning to this question only two years after its final decision rejecting very similar arguments. The difference between 2022 and the current day is not a change in law but a rightward partisan realignment after a judicial election. The new majority seems poised to affirm the principle that legislatures — not courts — must make spending decisions.

And, again, these problems are long standing. The North Carolina litigation, although no longer carrying the same caption, is a lineal descendant of Leandro v. State, which I read in law school in 1997 as the leading edge of the exciting new third-wave adequacy theory.

The Mississippi Supreme Court, meanwhile, recently held oral arguments over the constitutionality of the state’s allocation of federal Covid-19 aid to private schools. Parents in public schools argue this violates the state’s education clause, which forbids the appropriation of funds to “any school that at the time of receiving such appropriation is not conducted as a free school.” This claim — with the twist that the funds originated in a federal program outside the education space — uses an adequacy framework and renews a decades-old debate over whether funding private schools harms public ones. 

Viewing these cases together suggests a second hydrographic metaphor to supplement that of successive, breaking waves: climate change. Waves rise and fall, each much like the last; but the pattern of the waves depends on structural changes in the sea, its temperature, its currents, and its hospitality to life. The legal issues that today’s school finance cases raise may not appear to have changed much in 30 years, but schooling itself is changing rapidly. Over time, those deeper changes will be the things that permanently alter what goes on at the surface. First, as in our climate moment, one sees hints and pieces. Then, suddenly, everything is different.

One such deep change is the accelerating erosion of the line, once fairly crisp, between public and private schooling. For many decades, school choice was more slogan than program. A case like Zelman v. Simmons-Harris, in which the U.S. Supreme Court blessed the participation of parochial schools in voucher programs, was a blockbuster in theory but a dud in practice. When the 2002 decision came down, neither blue nor red states reacted by expanding school choice — most parents seemed content with their public schools, and the project was without political legs. Today’s voucher decisions, by contrast, fall upon more much fruitful soil. Fully half of the states allow parents to redirect at least some school funding to private schools of their choice.

Moreover, because about 80 percent of private school students attend religious institutions, much of that money goes to religious schools. Now that the U.S. Supreme Court is no longer inclined to insist that public schools be secular spaces, more people seem ready actively to pursue the possibility that religious schools could be understood as part of the public project. Charter schools, religious and not, also continue to blur the line between public and private. Just last week, the Oklahoma Supreme Court held oral arguments about whether the state’s approval of a Catholic charter school violates a state constitutional provision requiring that schools be “nonsectarian.”

The political culture of education is also shifting, accelerated by the Covid-19 pandemic. School closures spurred parents simultaneously to lose confidence in their public schools, learn of and explore alternatives, distrust the expertise of public school officials, and recognize that education could be commoditized in the information age. The widespread perception that delays in reopening schools were policies of elites and unions that had captured them made local education politics suddenly both partisan and salient.

Today, with masking and closings off the immediate agenda, political organizing on the right continues to be fueled by outrage, generated by broadcasting over social media snippets from school board meetings that once would have been invisible. Principals, kindergarten teachers, coaches, and school librarians who once labored in obscurity now find their every move scrutinized.

In short, our conception of public education is more fluid than it has been since the Progressives cemented their victorious battle for common schools in the early 1900s. We have long held that public schools, as discrete public projects, are institutions about which everyone is entitled to an opinion and a vote. But this principle has coexisted with a respect for public educators’ expertise. Discontented parents were expected to defer, or, if they could afford it, to exit. No longer. These changes are essentially political ones — the question of what kind of system we want — but have legal repercussions.

Against this backdrop, the cases winding their way through state courts around the country directly challenge what we mean by “public education.” The formal legal questions, and the doctrines that decide them, may not have shifted much. But as the legal and educational culture shifts beneath them, sudden changes, sometime soon, should surprise no one.

Aaron Saiger is a professor at Fordham University School of Law.