Vanderbilt Law Review, Vol. 57, No. 6 (November 2004), pp. 2351-2413


This Article examines how the landscape of school funding litigation has changed over the three decades since Serrano and Rodriguez. The first part of the Article sets forth the history of school funding litigation since Serrano and Rodriguez and unravels the legal theories that have driven the school financing cases, explaining past dispositions and point out likely future trends. At first blush it would appear that the attorneys seeking social change through greater equity in school funding are litigating similar issues in each state. Yet judges have approached these matters from different directions with results that vary significantly from state to state and from case to case. Plaintiffs have unveiled a number of legal theories based on a state constitution's equal protection clause or education clause. As the litigation has evolved over time, issues of equity in funding have given way to increased attention to funding adequacy and, more recently, accountability.

The second part of this Article examines the role of the courts in school funding litigation and analyzes the extent to which judges in these cases have become involved in matters that are traditionally left to the legislature and local control. School funding litigation raises some knotty issues when a court mandates specific remedies for funding inequities and expressly outlines what will constitute an adequate education under the relevant state's constitution. Some state courts have also been willing to "set the table" for funding plaintiffs, while other state courts have been more hesitant, deferring to the political process to resolve the funding inequities. This section will also explore the political issues that arise in school funding cases in which state judges, in contrast to federal judges, are subject to direct public opinion and majoritarian pressures--including popular elections, review by the electorate, and recall votes.

The last part of this Article scrutinizes the efficacy of school funding litigation and considers whether even the most so-called "activist" courts have actually helped plaintiffs achieve their desired reforms. With large revenue shortfalls in most states, even the plaintiffs who believed that they had won the school funding litigation battle are still not sure of the outcome of the war.

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