Equal Opportunity and the Courts: Mr. Rebell Argues That, If the Promise of Brown V. Board of Education Is to Be Fulfilled, "Educational Adequacy" Lawsuits, Not Cases That Pursue Racial Integration, Must Be the Means of Doing So

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IN THE spring of 2006, the state legislature in New York voted to authorize $9.2 billion for New York City to build new schools and repair old ones. In January of 2007, the state's new governor, Eliot Spitzer, proposed a $5.4-billion increase in annual operating funds for the city's schools--to be phased in over the next four years--and at least an additional $4 billion for school districts in the rest of the state. The first stage of this increase has now been approved by the legislature.

These events represent the culmination of a 13-year-old lawsuit, in which the main plaintiff, the Campaign for Fiscal Equity (CFE)--a coalition of parent organizations, community school boards, concerned citizens, and advocacy groups--for which I served as co-lead counsel, successfully argued that the state's constitution guaranteed every child the right to a sound basic education.

The CFE case, in turn, is emblematic of a much larger national movement, considered by many to be a kind of Act III in the story that began with Brown v. Board of Education and continued throughout the civil rights era that followed. Lawsuits challenging state methods of funding public schools have been launched in 45 of the 50 states and in recent years have been phenomenally successful. Since 1989-in an era largely dominated by the conservative political agenda--plaintiffs have prevailed in 20 of the 27 final liability decisions in cases that have been based on "adequacy claims" that all schools must receive the resources necessary to provide students with the opportunity for a meaningful education that enables them to meet challenging new state standards.

Education is an especially contentious field, but there is widespread agreement that this remarkable series of legal rulings has been prompted by a crisis in the nation's public schools, that the crisis disproportionately affects children from poor and minority families, and that nothing less than the functioning of America's democratic institutions and its future economic competitiveness hang in the balance. Let me cite just a few of the most alarming figures:

* By the end of fourth grade, African American and Latino students--indeed, poor students of all races--are two years behind their wealthier, predominantly white peers in reading and math. By eighth grade, they have slipped three years behind, and by 12th grade, the gap is a full four years.

* Among 18- to 24-year-olds, about 90% of whites have either completed high school or earned a GED (General Education Development) diploma. Among blacks, the rate is 81%; among Hispanics, 63%. However, a much larger proportion of blacks earn GEDs than whites: only about 50% of black students earn regular diplomas, compared with about 75% of whites.

* Fewer black than white eighth-graders enroll in college in the year after they graduate from high school (44% versus 58%), and fewer still persist to earn a bachelor's degree (17% versus 35%).

* By 2020, the nation's most educationally at-risk groups--Latinos and African Americans--will constitute a majority of the students in America's public schools.

There also is little dispute among observers of all political stripes that adequacy lawsuits constitute perhaps the most significant attempt to redress this imbalance since Brown.

"Adequacy lawsuits have been decided in favor of plaintiffs in states as Republican red as Kansas, Montana, and North Carolina," write Martin West and Paul Peterson, editors of a new volume titled School Money Trials: The Legal Pursuit of Educational Adequacy. In the aftermath of Brown, contemporary beliefs and values have, for many judges, endowed the education clauses of state constitutions with a new meaning that has powerful implications for what states must do. (1)

In June 2007, however, a new development lent even greater significance to the adequacy movement. At the end of its 2006-07 term, the U. …