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Extra info for A Level Playing Field: School Finance in the Northeast

Example text

64 Nor are the fluid, shifting groups that Madison envisioned characteristic of politics in the United States today. Contrary to Madison’s view, the two-party system is entrenched in custom; many people even believe that it is enshrined in the Constitution. Unfortunately, the right of minorities to an equitable education has become more difficult to protect, despite Brown, since the Rodriguez court refused to accord education constitutional protection as a fundamental right. Jurists, scholars, and legal writers have suggested that an implicit right to an education could be construed as supporting explicit rights granted in the constitution, such as the right to participate in the political process, the right to due process, or the right to equal protection of the laws.

85 Equality alone doesn’t produce positive results; funding also needs to be adequate. Disparate need makes equal funding inadequate. The goals of education, quality of education, accessibility of education, equity and adequacy of funding, although difficult matters to decide, determine the quality of life in a society. The recent shift in school finance litigation to an emphasis on outcomes, rather than inputs, may help. On the other hand, in Powell v. Ridge,86 Philadelphia’s school finance case, charges were dismissed at the trial court, appealed to the United States Third Circuit Court of Appeals, which reinstated the charges, then remanded from the Supreme Court to the United States District Court, which declared that disparate need does not equal disparate impact in the terms of civil rights litigation.

Legislatures sometimes cooperate with court mandates, but often they do not. 70 Since state legislatures rarely take up the banner of school finance reform of their own volition, plaintiffs have turned to the courts for redress. This raises arguments about separation of powers and judicial activism. 72 The question becomes, what level of educational opportunity— minimally adequate, excellent, or something in between—should be provided to the children of a state? Should public schooling provide an equal, equitable, or differentiated opportunity?

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