Unlocking the Power of State Constitutions with Equal Protection: The First Step Toward Education as a Federally Protected Right
This Article analyzes the intersection of state constitutional law with federal equal protection, revealing how federal equal protection, by relying on state constitutional education standards, can force states to further equalize and increase the resources available to struggling schools. It begins by exploring the extent of inequality and inadequacy in our public schools and the remedies that are necessary to address them. State-based litigation has produced gains in these areas, but lingering problems persist. Scholars have proposed several measures to address these problems, but most require either extraordinary changes at the federal level or modest changes that would do little to guarantee results. This Article proposes a middle road that builds upon the successes in state courts but makes the changes in state law relevant to federal litigation and enforcement. Of course, the traditional obstacle to such proposals has been the Supreme Court’s holding in San Antonio Independent School District v. Rodriguez, but this Article demonstrates a strategy that would not require the Supreme Court to overturn its precedent but simply apply equal protection in a manner that accounts for developments in state law. In particular, this Article posits that an educational revolution in the states has fundamentally changed the nature of the education right at stake and the responsibility for enforcing it. Thus, the scrutiny of this right under federal equal protection would be far different than it was just a few decades ago. Given the states’ weakened ability to enforce these rights, the future of education equity depends on federal intervention.
Derek W. Black, Unlocking the Power of State Constitutions with Equal Protection: The First Step Toward Education as a Federally Protected Right. 51 Wm. & Mary L. Rev. 1343 (2010).