Adequacy Movement Advancing the Promise of Brown

May 17, 2004 marks the 50th anniversary of the United States Supreme Court's landmark decision in Brown v. Board of Education. In its ruling striking down as unconstitutional the notion of "separate but equal" public education, the court declared that

In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

Fifty years later the struggle to make this right "available to all on equal terms" is continuing across the country.

Despite the strong language of the Brown court, many minority students still find that education is a right that is not "available to all on equal terms." Although progress toward desegregation was achieved in the years following Brown, a disturbing trend toward re-segregation has emerged. Currently, seventy percent of African American children attend schools that are predominately African-American, an increase from just ten years ago.

Moreover, resources for education are not "available to all on equal terms." In Kansas, a judge has recently found that educational funding is alarmingly lopsided: some students receive $5,655.95 each year, while others receive $16,968.49, a difference of more than 300 percent. That judge noted that the

"current funding scheme provides least to those school districts which have the largest concentrations of our most vulnerable and/or protected students; our poor, our disabled, our minorities, and our children not fluent in the language spoken in their schools (children, whom all agree cost more to educate)."

In South Carolina, where Briggs v. Elliot, a companion case to Brown, originated, the conditions of schools educating poor and minority students are by no means equal. The school districts experience devastating teacher turnover rates, due to low salaries and meager benefits, uncertified teachers, buildings in shoddy condition, lack of equipment, overcrowding, growing numbers of ELL students and graduation rates that vary between 33% and 57%.

Civil Rights Attorneys Mount School Funding Cases

To remedy the inequity of school funding, the battle in the courts has shifted to a new front - ensuring adequate resources so that every child has the opportunity to obtain a quality education. Inspired by the promise of Brown, civil rights attorneys relied on federal equal protection to seek equal funding in federal court. However, in its 1973 ruling in Rodriguez v. San Antonio, the U.S. Supreme Court noted that education is not a fundamental right under the federal constitution.

Finding the federal courts unreceptive to their plight, plaintiffs turned to state courts and state constitutions, which all contain an education clause that mandates that every child receive a free education. In 1989, plaintiffs won in Texas, Montana and Kentucky, and "adequacy" became the predominant legal theory in school funding cases. In Rose v. Council for a Better Education, the Kentucky Supreme Court found that the state's educational funding system violated that state's constitution by denying children the opportunity for an education that would prepare them to be productive and successful citizens. The Rose court recognized that educational adequacy is an extension of Brown v. Board of Education. The majority opinion quoted Brown v. Board of Education as the most eloquent articulation of the goals of the Kentucky constitution's education clause.

Since the Rose decision, plaintiffs have prevailed in two thirds of about 30 educational adequacy decisions. In December 2003, a court in Kansas, the setting for Brown v. Board of Education, declared that state's educational funding system unconstitutional. Other recent victories have occurred in Massachusetts, Montana and New York. Currently in South Carolina, where Briggs v. Elliott originated, a state trial court is hearing testimony in Abbeville v. State, an educational adequacy case.

Fifty years ago, the United States Supreme Court declared that "[e]ducation…is the most important function of state and local governments… It is the very foundation of good citizenship." By striving to win resources for an adequate education for all of our children, plaintiffs in school funding cases are advancing the promise of Brown.

Prepared by Wendy C. Lecker, May 13, 2004