Gary B., Espinoza, and the fight for school funding

A pair of recent federal court decisions could have profound consequences for school funding.

What a time to dish about school funding and the courts. Due to COVID-19, states are experiencing hundreds of billions of dollars in revenue losses, and nearly half of the nation’s schools may be forced to make historic budget cuts. At such a moment, whatever a person in a black robe might have to say on the topic seems hardly relevant. Nevertheless, two recent judicial opinions, Gary B. v. Whitmer and Espinoza v. Montana Dept. of Revenue, stand out in how they tackle a key question: What is the government’s obligation to fund schools?

In Gary B. v. Whitmer (formerly Snyder), seven Black and Latinx plaintiffs — all students enrolled in grades 3-12 in Detroit public schools — alleged that theirs were “schools in name only,” “slum-like,” and “lacking the most basic educational opportunities that children elsewhere . . . take for granted.” Among the conditions they cited: rat-infested buildings, classroom temperatures ranging from below freezing to 110°F, class sizes of up to 60 pupils, rampant teacher turnover, and a near-0% student proficiency rate in virtually every subject.

In April, the 6th U.S. Circuit Court of Appeals held that the 14th Amendment grants students a constitutional right to “a basic minimum education.” “Plaintiffs sit in classrooms where not even the pretense of education takes place,” the court wrote. “This abject failure makes it nearly impossible for young people to attain the level of literacy necessary to function — much less thrive — in higher education, the workforce, and the activities of democratic citizenship.”

The Gary B. case demands attention for a few reasons. First, as a federal case closely related to school funding, it is somewhat of a unicorn: The Supreme Court ruled in 1973 in San Antonio Indep. Sch. Dist. v. Rodriguez that children do not have a fundamental right under the U.S. Constitution to a public education. Since then, in the absence of a federal law to wrestle with, nearly all legal battles in this area have been waged in the state courts. (In the 48 state courts where school finance litigation has occurred since 1973, the victories are nearly evenly split between plaintiffs and defendants. The Sisyphean nature of this type of litigation is evident; at any given moment, a dozen or more lawsuits are pending around the nation to shore up or enforce previous court rulings. It is not unheard of for a school finance case to span decades.)

Second, plaintiffs’ lawyers in Gary B. made a niftily crafted legal assertion — that children have a fundamental right of access to literacy through the provision of a minimum basic education. With this claim, the plaintiffs took an old question left dangling from prior cases (is there a federally mandated “floor” in education?) and made it seem new (is there a right to “literacy”?).

Third, and most remarkably, they won. Pointing to the universality of state-sponsored education — and the role of literacy as essential to the exercise of other fundamental rights under the U.S. Constitution — the 6th Circuit found that “the state provision of a basic minimum education has a longstanding presence in our history and tradition, and is essential to our concept of ordered constitutional liberty.” This is a first-of-its-kind ruling by a federal court.

Shortly after the ruling, the state of Michigan agreed to settle the case by paying the plaintiffs $280,000, proposing an additional $94 million for Detroit schools, and establishing a bevy of task forces and committees. That’s good news for the city’s students. In light of this settlement, however, the 6th Circuit signed an order dismissing the Gary B. decision, which means that while future litigants and courts can look to Gary B. for guidance, they may not treat it as legal precedent. This deflates Gary B.’s balloon considerably.

Still, the case highlights a pathway for similar litigation in the future. Moreover, lawsuits alleging a federal right to education are pending in other states. In Cook v. Raimondo, for example, students and parents have accused the state of Rhode Island of providing an education so inferior that it was preventing citizens from exercising their federal constitutional rights, such as forming a legal assembly or voting.

Such cases raise the question: If a federal right to an education were established, would this actually lead to higher school funding levels across the country, or to a more equitable distribution of those funds? Many say yes, arguing that state forums alone — whether because of “entrenched” school finance systems or resistant actors at the state level — are unable to deliver the full scope of reforms (and money) needed to fix inequitable and inadequate school conditions. Reopening federal courts to school finance litigation could serve as a check against serious and prolonged mistreatment or neglect of students at the hands of states or districts — especially for students living in states with weak or under-protective state laws, legislatures, or courts (see Robinson, 2019).

If a federal right to an education were established, would this actually lead to higher school funding levels across the country, or to a more equitable distribution of those funds?

Others counter that establishing a federal right is both unnecessary (since Congress can pass school finance legislation without it) and insufficient (since the existence of such a right wouldn’t be enough, on its own, to get Congress to act on it). These limits are not hard to see; in recent years it has become clear that Congress can barely appropriate funds to keep its own lights on, much less oversee the budgets of 13,000 school districts. And, over time, federal judges may be no more successful than state court judges in forcing governors and state legislatures to cough up money for schools.

Yet, it’s hard to deny that a greater federal contribution to school funding (now hovering at about 8% of total spending on public education, according to the National Center for Education Statistics) is overdue, at least in some regions. Even after accounting for regional cost differences, some states spend up to three times more per pupil than others (Farrie, Kim, & Sciarra, 2019). While some states (Arizona and Texas, say) have the ability to increase school funding but don’t do so, other states (Mississippi and New Mexico, for example) already dedicate a comparatively high percentage of their state GDP toward education but aren’t rich enough to come close to the national per-pupil spending average (Baker et al., 2018). Given the established relationship between money and student outcomes, this means that it is far more difficult for some states (and the poorest districts within states) than others to achieve even average levels of student outcomes without a hefty boost in federal aid.

Eventually, a case similar to Gary B. is likely to make its way to the U.S. Supreme Court, which will by then have had a half century or longer since Rodriguez to revisit the “savage inequalities” — to borrow Jonathan Kozol’s phrase — that permeate the nation’s public schools. Depending on the makeup of the Court, the result could be either transformational or terrifying for education rights advocates. The Court could usher in a new commitment to the equity principles laid out in landmark cases like Brown v. Board of Education and Plyler v. Doe. Or it could fossilize those principles in amber for another 50 years.

Should private schools get a piece of the pie?

Just weeks after the Gary B. settlement, the U.S. Supreme Court decided a First Amendment case, Espinoza v. Montana Department of Revenue, that opens a new front in the fight for school funding.

Espinoza originated with what has been called a “neo-voucher” program. Instead of giving parents a direct stipend to send their children to private schools, the state of Montana, like 17 other states, had set up a more indirect payment system. It offered up to $150 in tax credits to taxpayers who contributed to a private scholarship organization, which then awarded eligible parents $500 (the equivalent of a voucher) to send their children to private schools.

But not everyone was eligible. Like many other states, Montana’s constitution has a “no-aid” provision barring public aid to any school “controlled in whole or in part by any church, sect, or denomination.” To adhere to this provision, Montana’s Department of Revenue, which was called upon to implement the law, added a rule prohibiting the scholarships from going to religious schools. (Most Montana private schools are religiously affiliated.) Kendra Espinoza and other parents who had applied for scholarships to send their children to Stillwater Christian School in northwestern Montana challenged the rule in state court.

In 2018, the Montana Supreme Court struck down the entire scholarship program, stating that there was “no mechanism” for preventing aid from flowing to religious schools, and therefore the scholarship program could not “under any circumstance” be construed as consistent with the state’s no-aid provision.

The U.S. Supreme Court accepted the case for review and, in a 5-4 decision in June, held that the Montana Supreme Court’s interpretation of its own constitution to strike down the tax-credit program violated the affected families’ and schools’ First Amendment guarantee of free exercise of religion. “A State need not subsidize private education,” Chief Justice John Roberts wrote for the majority. “But once [it] decides to do so, it cannot disqualify some private schools solely because they are religious.”

In their dissents, Justices Ruth Bader Ginsburg and Sonia Sotomayor argued that, since the Montana Supreme Court had abolished the scholarship program for all private school applicants (religious and non-religious alike), there was no room for a claim of discrimination based on religious status. Also in dissent, Justices Stephen Breyer and Elena Kagan expressed fear that the majority’s opinion “risk[s] the kind of entanglement and conflict that the [First Amendment] is intended to prevent.” In their view, opening the floodgates to the direct state funding of religious schools could lead to the government’s attaching strings to that funding — and to its giving preferential treatment to some religions over others. This would contravene the First Amendment’s purpose to “insure that no religion be sponsored or favored, none commanded, and none inhibited” by the state.

The case is significant on several levels. First, it’s worth noting the head-spinning transformation of the Court in this space. According to National Education Policy Center Director Kevin Welner (2020):

The legal landscape for vouchers supporting private religious schools has changed 180 degrees, corresponding to the shift in the makeup of justices on the Supreme Court. Vouchers for religious schools have moved from being broadly understood to be constitutionally forbidden in the 1970s to constitutionally allowed in [2002, via the Zelman v. Simmons-Harris] decision, to now arguably constitutionally required, at least under the Montana circumstances.

Second, the case’s impact extends far beyond Montana. Thirty-six other states currently have no-aid provisions (sometimes referred to as “Blaine Amendments”) that prohibit religious institutions from receiving state aid. Even before Espinoza, some of those states were interpreting those provisions to allow some aid to flow to religious institutions; after Espinoza, those that don’t will need to fall into line.

The ramifications of the case also go well beyond Montana-like scholarship programs. Policies that exclude religious institutions from participation in school voucher programs and other state programs more generally will likely not stand. Espinoza marks a big win for religiously affiliated schools, many of which are struggling to keep their doors open and will welcome all new forms of state support — although, as Justice Breyer warns, some religious schools may come to rue their marriage with the state; historically speaking, when the government “intermeddles” with religious institutions, they have not fared well in maintaining their independence.

The case is also a big win for the “school choice” movement generally, which includes both religious and nonreligious private schools and public charter schools. (Are church-operated charter schools on the horizon?)

Even more broadly, as one commentator noted, the Espinoza case has “tainted” the principle against government funding of religion “with the aura of discrimination” (Green, 2020). What was once considered church-state separation is now evidence of the state disfavoring the church. As Justice Breyer strongly suggests, Espinoza may well lead to an affirmative constitutional obligation by states to fund private religious schools:

If making scholarships available to only secular nonpublic schools exerts “coercive” pressure on parents whose faith impels them to enroll their children in religious schools, then how is a State’s decision to fund only secular public schools any less coercive? Under the majority’s reasoning, the parents in both cases are put to a choice between their beliefs and a taxpayer-sponsored education.

Whatever the merits of funding private (including religious) schools — attended by 1 in 10 U.S. students, according to the National Center for Education Statistics — the erosion of the constitutional wall between public, private, and religious schools after Espinoza does not bode well for public school systems, which will be required to share the state’s allotment to them with an ever-increasing number of private and religious institutions.

Gary B. sounds yet another alarm about the shocking opportunity deficits in our public schools for students of color. Espinoza, in turn, reflects the continuing quest for alternatives to those schools.

Finally, as we experience a surge in protests related to racial justice and the police, it’s worth pointing out the racial dimensions of both of these cases. Gary B. sounds yet another alarm about the shocking opportunity deficits in our public schools for students of color. Espinoza, in turn, reflects the continuing quest for alternatives to those schools. On its face, Espinoza has nothing to do with race; it concerns the government’s treatment of religious schools. But the case is firmly ensconced within the school choice movement, whose origins spring in part from a desire among white families to escape the “perils of public education” (read: Black children) in the face of desegregation efforts after Brown (Hale, 2017).

As future cases like Gary B. create a stronger legal justification for more money to flow to public schools, cases like Espinoza may make it difficult for them to hold onto those funds. Viewed together, these cases illuminate the unsettled direction of the nation’s path toward providing equal educational opportunity for all students.

References

Baker, B.D., Weber, M., Srikanth, A., Atzbi, M., & Kim, R. (2018). The real shame of the nation: Causes and consequences of interstate inequity in public school investment. Newark, NJ: Education Law Center of New Jersey & Rutgers University.

Farrie, D., Kim, R., & Sciarra, D.G. (2019). Making the grade 2019. Newark, NJ: Education Law Center.

Green, S. (2020, June 30). Symposium: RIP state “Blaine Amendments” — Espinoza and the “no-aid” principle. SCOTUS Blog.

Hale, J.N. (2017, January 18). The African-American roots of Betsy DeVos’s education platform. The Atlantic.

Robinson, K. (2019). A federal right to education. New York, NY: New York University Press.

Welner, K. (2020, June 30). How the Supreme Court’s decision on religious schools just eroded the separation between church and state. Washington Post.