Circumventing Rodriguez: Can Plaintiffs Use the Equal Protection Clause to Challenge School Finance Disparities Caused by Inequitable State Distribution Policies?
Green, Preston C., Baker, Bruce D., Texas Forum on Civil Liberties & Civil Rights
In 1973, the Supreme Court ruled in San Antonio Independent School District v. Rodriguez that funding disparities among school districts caused by local property taxation did not violate the Equal Protection Clause.1 Applying the rational basis test, the Court concluded that local property taxation was rationally related to the purpose of local control.2 However, local property taxation is not the sole cause of funding disparities between rich and poor school districts. A great deal of inequality is caused by state school-funding distribution policies, such as weighted aid policies that are designed to address educational cost differences among school districts.
Thirteen years after Rodriguez, the Supreme Court held in Papasan v. Allain that Rodriguez did not foreclose Equal Protection Clause challenges to unequal state distribution policies.3 The Court ruled that classifications created by these policies would also have to withstand rational basis analysis.4 This legal strategy is underdeveloped. A Kansas school finance case, Robinson v. Kansas,5 might breathe new life into Papasan-based school finance litigation. In Robinson, the Tenth Circuit has ruled that plaintiffs may proceed with their claim that Kansas' low enrollment weighting provision, which provides additional funding to small districts, violates the Equal Protection Clause.6
This article examines the pending Kansas school finance case to determine the viability of Equal Protection Clause challenges to weighted aid policies. Part I provides an overview of the three periods, or "waves," of school finance litigation. This overview explains how litigants have tried to remedy inequalities caused by local property taxation. We explain that the success of second and third wave litigation has been limited by: (1) the complexities involved in developing equality and adequacy measures that have a sufficient connection between differential governmental treatment and educational injury; and (2) the doctrine of local control.
Part II discusses the Papasan and Robinson cases. We observe that there are several reasons for pursuing Papasan-based Equal Protection Clause challenges: (1) a great deal of funding inequality between rich and poor districts is caused by weighted aid policies; (2) political considerations and lack of technical capacity in the design of these distribution policies might render them vulnerable to Equal Protection Clause challenges; and (3) plaintiffs might be able to avoid the measurement and local control problems that have limited the second and third waves of school finance litigation.
Part III analyzes Kansas' pending Papasan-based Equal Protection Clause challenge. We conclude that if the District Court of Kansas applies traditional rational basis analysis, it will probably find that the low enrollment weighting provision is rationally related to the legitimate governmental interest of equalizing cost differences between low- and high-enrollment school districts. The plaintiffs will likely claim that the state could have adopted less discriminatory means to accomplish this goal. However, the Supreme Court rejected this argument in Rodriguez.
The district court might, however, apply heightened rational basis review, which is more critical of governmental classifications than traditional rational basis, to find that the low enrollment weighting provision violates the Equal Protection Clause. On occasion, courts have applied heightened rational basis scrutiny to invalidate differential governmental treatment. However, the facts in Robinson differ in one key fashion from the most analogous situations in which courts have applied heightened rational basis scrutiny. The latter cases involved situations in which differential governmental policies treated similarly situated entities in an unequal fashion. By contrast, in Robinson, there are educational cost differences relating to size between low- and high-enrollment school districts. …