Justiciability of State Law School Segregation Claims

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44 Mitchell Hamline Law Review 399 (2018)


Courts have always been the final repository of hope for parents and students who feel that their schools are consigning them to second-class citizenship. In the United States, no modern educational injustice has a longer or more abusive history than racial segregation, and its effective redress has proven all but impossible without occasional judicial intervention. Now, concerned parents are finding new legal avenues towards desegregating their schools, relying on state courts and state constitutions. But there are warning signs that those courts may, for the first time ever, decide that claims of racial segregation fall outside the purview of the judicial system.

Over several decades, education advocates have developed “educational adequacy” lawsuits as a vehicle for reforms to education. While the claims in these suits vary, they all share a basic structure. Educational adequacy lawsuits assert that a state’s constitution has created either a legislative obligation to provide an education with particular characteristics, or a fundamental right to education. Plaintiffs then allege that some defect in a state’s K-12 school system has resulted in a failure to meet those requirements, or else violated that fundamental right. In doing so, plaintiffs seek to override the legislatively-developed educational system in order to correct the inequity.

Most often, the asserted defect is funding inequality or insufficiency – a state school funding formula that prevents the creation of constitutionally adequate schools in some districts. But other claims have proven viable as well.

Of particular note are segregation claims. Segregation, particularly racial segregation, is the grandparent of all educational inequality in the United States. As long as parents have been fighting for fairer schools, segregation has been at the heart of those fights. Although few in number, educational adequacy segregation lawsuits stand out. They’re a novel mechanism for attacking a morally and politically evocative problem – a problem against which previous legal remedies have at times fallen short.

However, educational adequacy lawsuits have met resistance, and segregation claims are no exception. In recent years, there have been indications that some courts have come to see the education system as a policy consideration for the legislature, resulting in education clause suits’ dismissal under the principles of justiciability.

This article addresses the intersection of justiciability, education clause claims, and segregation. It will argue that while education clause claims are often justiciable, this is particularly true when the harm being alleged is racial segregation.

Part I provides background on the historic roots of education policy and educational inequality. Part II describes historical efforts to secure integrated and equitable education from federal and state courts. Part III summarizes the doctrine of justiciability, and analyzes cases in which it has been held to prevent education clause claims in state courts. Part IV shows how the harms of segregation form a special case that supports the justiciability of education clause claims.