Goodwin Liu’s inspiring article mines a rich vein of the history of American education. He revives and re-interprets congressional attempts to create a national system of public schools in the years following the Civil War. Professor Liu’s work is a signal contribution to the national movement for fiscal equity in education. I share with Liu—and with the senators and presidents whose efforts he describes—a strong belief that the federal government has a constitutional duty to ensure that each child gets the education needed to become a full citizen of this country. But in the spirit of “knowing thine enemy,” I will use this brief essay to emphasize the importance of the traditions and arguments that have stood in the way of similar proposals ever since the ink was wet on the Constitution.

In America there is a longstanding attachment to local government and a historic suspicion of central power. These attitudes are rooted in our Revolution, our Constitution, and our political traditions. Many Americans believe that because state and local authorities are closer to the people, they are thus more responsive, more democratic, and more efficient. National power, by contrast, strikes many as foreign and even autocratic—the unfortunate result of a mistaken emulation of undemocratic states.

These two attitudes are especially potent when conversation turns to our public schools. Our federal system grants states and localities control over a variety of public issues, but none more so than education, which seems to have a particularly salient connection to our concepts of family and community. Our tradition of decentralized education governance and funding is unique among industrialized nations. Many Americans are committed to this traditional, anti-centralist position in favor of local control of local schools. Despite a gradual historical trend toward more federal involvement in education, the tradition of local-state governance has prevailed over efforts to equalize education resources across state lines through litigation or legislation.

Thus, Liu’s article tells a story of noble failure. Beginning in the 1870s, the congressmen that are the heroes of Liu’s article argued that the Constitution required (or at least authorized) that the Congress provide federal aid for, and supervision over, public education. At different times the congressmen invoked the General Welfare Clause, the Guarantee Clause, the Equal Protection Clause, and Liu’s own preferred provision, the Citizenship Clause of the Fourteenth Amendment. These constitutional arguments never convinced more than a minority of politicians and jurists: at a few points in his historical account, Liu reminds us that those who believed, as he and I do, that Congress had a constitutional duty to pass these laws were always a minority. Liu therefore declares that his aim is not to “reveal a singular ‘original understanding’ of the Citizenship Clause.” Nor does he explore why these ideas failed to persuade courts and Congresses—his emphasis is instead on the viability of these arguments today.

Why revive arguments now that did not carry the day then? Because, one might argue, our country has become more accustomed to federal authority over many policy areas that were, in the nineteenth century, solely governed by the states. Indeed, even while the bills Liu describes were mired in endless congressional committees, a slow process of centralization in educational supervision and funding had already begun out in the states themselves, as small districts consolidated into town-wide systems and as state governments began to provide funding and rudimentary regulation for local schools.

During the New Deal and World War II, Americans became more accustomed to federal activity in policy areas like highway construction, hospital support, federal housing loans, and federal construction of low-income housing. The dawn of the Cold War and the civil rights movement offered new reasons for the federal government to assert a role in education policy as well: the imperatives of world leadership, economic competition, and racial justice prompted the federal government to make inroads on local and state control of public schools.

During the 1940s and 1950s liberals in Congress revived efforts to provide general aid to the states for education, favoring the poorest states in an effort to partially equalize interstate disparities. Their localist and states’ rights opponents included three main groups: nervous Southerners who rightly suspected that federal aid would be used to require racial integration; Roman Catholics, who saw nothing good in it for them; and traditional Republicans, who viewed central power as inefficient and un-American. As in the 1880s, several liberal proposals came quite close to passage only to be blocked by the skills and power of well-placed opponents in the Congress.

In the 1960s Congress achieved some of the goals of equal educational opportunity that were set a hundred years earlier during the debates that Liu recounts. In 1965, Title I of the Elementary and Secondary Education Act became a key measure in Lyndon Johnson’s War on Poverty, and it had a modest equalizing effect on per-pupil expenditures across schools in wealthier and poorer districts. The next ten years witnessed new federal initiatives in the education of children who were not yet proficient in English, children with disabilities, women, and Native Americans, while at the same time the courts moved energetically against racial segregation in the South. The notion of a right to education and a belief in federal responsibility to protect and foster that right rose to a wholly new level. Education policy in the 1980s turned elsewhere; however, a residue of emphasis on the right to education remained in the form of precedents, programs, and procedures. The No Child Left Behind Act of 2001 (NCLB) may be the most intrusive federal education policy ever passed, and some also regard it as having a central commitment to equity.

However, recent court decisionsdo not favor an increased federal role in equal educational opportunity. In San Antonio Independent School District v. Rodriguez, the Court held that the Equal Protection Clause does not prohibit unequal per-pupil expenditures across district lines. In Zelman v. Simmons-Harris, the Court approved Ohio’s plan to partially privatize its education system by granting public funds to parents to use for their children’s tuition in religious private schools. The federal judiciary has substantially withdrawn from racial balance issues, and several current Supreme Court Justices are sympathetic to states’ rights.

How might advocates of a federal obligation to provide adequate education move their agenda forward at this point? Liu’s argument builds on the Citizenship Clause rather than the Equal Protection Clause, a critical move because the Supreme Court, in Rodriguez, declined to find that differences in school budgets violate the Equal Protection Clause, declaring, in the words of Justice Powell for the 5-member majority, that “the Equal Protection Clause does not require absolute equality or precisely equal advantages.” One could use Liu’s scholarship to argue that Rodriguez was argued wrongly; that the plaintiffs emphasized the Equal Protection Clause when they might better have used the Citizenship Clause. However, given the present predilections of the Court, a reversal of Rodriguez seems unlikely on any grounds in the near future, though detailed discussions of the arguments might prepare the groundwork for successful litigation in more auspicious times. Similarly, over the years various individuals, from Ulysses S. Grant to Jesse Jackson, Jr., have proposed a constitutional amendment guaranteeing equal educational opportunity. The chances of such an amendment succeeding seem slim, though again, discussion about it might raise public consciousness about the problem

Liu himself does not advocate either of these strategies in his article. He emphasizes that he is writing not for judges but for “conscientious legislators,” and that his project depends not on the adjudicated Constitution of the courts but on the legislated Constitution that is given life by our elected federal representatives.

Liu’s focus seems wise. Even if an amendment succeeded or Rodriguez were reversed, the Justices might not agree on what constitutes equality in education: some policy analysts emphasize resource distribution while others point to outcomes. Furthermore, there is a growing literature on the limits of courts’ capacity to declare, implement, and monitor social change. The solutions are far from obvious: researchers have debated whether equalizing school budgets causes educational outcomes to become more equal. In sum, the present judicial trajectory of the nation, the chastened confidence in courts’ ability to reform education policy, and the uncertainty about what role per-pupil costs play in educational opportunity all make it unlikely that the national movement for fiscal equity in education will achieve its goals through further litigation or through a constitutional amendment, at least in the near term.

Liu’s work brings fresh direction in two ways. It invokes the importance of citizenship, and it counsels reliance on the Constitution as understood and implemented by the Congress. Nonetheless, the resilience of the localist and states’ rights traditions should not be underestimated. While those traditions have some racist roots, demonizing them will not contribute to success. Each of the warring sides in the debates on federalism has its traditions and its deeply held values. At a recent meeting, policy experts who were discussing the successful Clinton welfare bill, the unsuccessful Clinton health initiative, and the recent unsuccessful Social Security reform put forth this generalization: when you are attempting to pass major new legislation on a highly polarized issue, you have to find a way that people on both sides can “hear their story” in your proposal. In the case of the welfare bill, convictions about the value of work united people from across the spectrum and made compromise more possible. Finding and promoting shared values of educational opportunity seems like a worthy goal for the national movement for fiscal equity in education. Goodwin Liu has given us new legal and philosophical tools for that task.

Carl F. Kaestle is University Professor in the Departments of Education, History, and Public Policy at Brown University. His research interests include the evolution of urban school systems and the federal role in education.

Preferred Citation: Carl F. Kaestle, Equal Educational Opportunity and the Federal Government: A Response to Goodwin Liu, 116 Yale L.J. Pocket Part 152 (2006), http://yalelawjournal.org/forum/equal-educational-opportunity-and-the-federal-government-a-response-to-goodwin-liu.