Fifty years after Brown v. Board of Education, school desegregation and school finance litigation have made modest strides toward remedying the separate and unequal opportunities too long afforded to our poor and minority schoolchildren. However, it is a striking yet often neglected fact that the most significant component of educational inequality across the nation is not disparities within states, the traditional concern of equal protection doctrine, but rather disparities between states. To address this latter problem, I propose a federal education policy rooted in legislative enforcement of the Fourteenth Amendment guarantee of national citizenship. Such enforcement animated sustained efforts by members of Congress, soon after the Fourteenth Amendment was adopted, to establish a strong federal role in narrowing interstate disparities in public education. Current federal policies, unlike that early ambition, are largely indifferent to or complicit in the perpetuation of interstate inequality. Recovering the historical vision of a genuinely national education policy and adapting it to contemporary norms of cooperative federalism are vital steps toward realizing the constitutional promise of equal citizenship.

I. The Problem

Although disparities in educational opportunity still exist within and between school districts in each state, disparities across states are more severe. Adjusting for geographic cost differences and student needs, the ten highest-spending states on average spend over fifty percent more per pupil than the ten lowest-spending states. Low-spending states are found in the South, Southwest, and Far West, while high-spending states are clustered in the Northeast, mid-Atlantic region, and Midwest. This geographic pattern reflects the historically uneven development of public education in the United States.

Large interstate disparities exist not only in spending but also in education standards and outcomes. Under the federal No Child Left Behind Act (NCLB), states may establish their own learning standards and assessments, but they must also participate annually in the National Assessment of Educational Progress (NAEP), a widely respected test of important knowledge and skills. Comparing student performance on NAEP versus state tests tells us three things.

First, state standards vary significantly and are almost always less rigorous than NAEP’s. In Alabama, for example, 73% of fourth-graders scored at a proficient level on state math tests in 2005, but only 21% were proficient on NAEP. Among Arizona fourth-graders, 72% were proficient on state reading tests, but only 24% were proficient on NAEP. Second, student performance varies considerably from state to state. While 35% of fourth-graders nationwide achieved proficiency on the NAEP math test in 2005, state figures ranged from 49% in Massachusetts to 19% in Mississippi and New Mexico. Third, the states below the national average are almost all low-spending states in the South, Southwest, and Far West.

These performance disparities reflect not only resource disparities but also student demographics. While the student body in the top third of states in terms of adjusted spending is 70% white, 14% poor, and 4% limited in English proficiency (LEP), the student body in the bottom third is less than 50% white, over 18% poor, and over 13% LEP. In short, children with the greatest educational needs live disproportionately in states with the lowest education spending.

Moreover, interstate disparities in school spending have more to do with the ability of states to finance education than with their willingness to do so. On average, the ten states with the highest fiscal capacity enjoy 40% more non-federal revenue per pupil than the ten states with the lowest capacity, even though the latter states devote a higher percentage of their taxable resources to education. This highlights the need for a robust federal role in ameliorating interstate inequality.

But Congress has done little to address educational inequality between states. Federal policy sets no consistent national expectations for the performance of our public schools and instead allows education standards to vary dramatically from state to state. Moreover, the federal share of the national education budget has never exceeded 10%; in recent decades, it has been 6% to 8%. Very little interstate equalization can be achieved with such small sums. What’s worse, the largest program of federal education aid—Title I of the Elementary and Secondary Education Act of 1965—tends to reinforce not reduce interstate inequality by allocating aid not only based on child poverty but also in proportion to each state’s level of per-pupil spending. Thus Massachusetts, a wealthy high-spending state, received almost 80% more Title I aid in 2001 than Oklahoma, a poor low-spending state, even though Massachusetts had fewer poor children.

II. The Guarantee of National Citizenship

It is hard to see how this approach to public education can be reconciled with the Fourteenth Amendment guarantee of national citizenship. From the constitutional text and history, we learn three important things about that guarantee. First, the grant of citizenship was meant to secure not only a legal status but also substantive rights—hence the Fourteenth Amendment’s reference to the “privileges or immunities of citizens of the United States.” The framers understood citizenship to mean, at a minimum, equal standing in the national political community. The citizenship guarantee thus encompasses substantive rights essential to realizing this equality.

Second, Section 5 of the Fourteenth Amendment authorizes Congress to enforce the guarantee of national citizenship. Under this authorization, Congress may determine not only what civil and political rights but also what social and economic entitlements are necessary to make national citizenship meaningful and effective. Because the citizenship guarantee is affirmatively declared, unconstitutional state action is not a necessary predicate for congressional enforcement.

Third, the grant of congressional power to enforce the national citizenship guarantee implies a constitutional duty of enforcement. Unlike any other constitutional provision up to that time, the Civil War amendments expressly assigned enforcement power to Congress, reflecting the Framers’ belief that “appropriate legislation,” not merely judicial enforcement, would be needed to make the newly created rights fully effective. Early on, Congress understood national citizenship as a guarantee it had the power and duty to enforce. That understanding led Congress then, and should lead us now, to see the task of narrowing educational inequality between states as a constitutional imperative.

III. Lessons from Congress, 1870 to 1890

During the two decades after the Fourteenth Amendment was adopted, Congress repeatedly sought to enforce the national citizenship guarantee through ambitious bills to provide leadership and funding for public education. Four efforts are particularly noteworthy. The first was an 1867 statute establishing a federal Department of Education. Congress charged the committee that drafted the statute to create an agency “to enforce education, without regard to race or color, upon the population of all such States as shall fall below a standard to be established by Congress.” Proponents stressed the national interest in “universal education.” Although the Department was ultimately limited to data collection and reporting, its creation signaled an emerging federal responsibility for ensuring, in the words of one supporter, that “every child . . . receive[s] a sufficient education to qualify him to discharge all the duties that may devolve upon him as an American citizen.”

Second, Representative George Hoar in 1870 introduced the first-ever proposal for federal supervision of public elementary education. It would have required states to provide common schools for children aged six to eighteen, with instruction in reading, writing, arithmetic, geography, and history. The President was authorized to determine whether the schools of each state were adequate. Where they weren’t (the inadequacies were concentrated in the South), the bill proposed “national schools” run by federal officials and financed with a federal tax.

This heavy-handed approach was easily attacked, and the bill never reached a vote. But it drew attention to the need for education and the basis for Congress’s power and duty to make schooling universally available. As Hoar put it in 1871, “the fundamental civil rights of the citizen include[] the right to receive a full, free, ample education from the Government . . . . We neglect our plain duty so long as we fail to secure such provision.”

The Hoar bill’s underlying notion of federal responsibility paved the way for a third proposal, introduced by Representative Legrand Perce in 1872. Perce sought to fund education using revenue from public lands, with half going into a permanent “national educational fund” and the other half, plus interest from the fund, apportioned to states offering free education to children between the ages of six and sixteen. His bill had genuinely national scope and would have allocated funds on the basis of illiteracy, directing more aid to states with greater need and less fiscal capacity. As one proponent explained, the bill aimed to ensure that “the children of [each] State, who will be called on to discharge the duties of citizens of the United States, shall be educated” to a national standard of literacy.

The bill passed the House but died in the Senate. Nevertheless, the Hoar and Perce bills set the stage for a fourth bill—the most significant education-aid proposal of the postbellum period. Authored by Senator Henry Blair of New Hampshire in 1882 and extensively debated throughout the 1880s, the bill introduced the idea of granting federal aid through direct appropriations from the national treasury. Like the Perce bill, it envisioned an equalizing federal influence across states through a distribution of funds based on illiteracy. Further, the bill advanced the notion of state and local administration of public schools within a framework of federal funding conditions, an early form of cooperative federalism.

Along with many Senate colleagues, Blair, an able constitutional lawyer, championed his bill by invoking Congress’s power and duty to give meaning to the Citizenship Clause:

The Blair bill passed the Senate and would have been signed by President Arthur in 1884 had it not been blocked by a reactionary House minority.

These early bills left important guideposts for the federal role in public education. They linked education to national citizenship with the recognition that Congress had a duty to act. Congress’s duty was not to guarantee absolute equality of opportunity but rather sufficient opportunity to achieve equal standing in the national community. In promoting basic literacy, the proposals sought to ensure what Blair called “the indispensable standard of education” for “the duties and opportunities of citizenship”— a standard we might today call educational adequacy for equal citizenship.

IV. Policy Implications

If Congress were to take seriously its duty to secure full and equal national citizenship, what might be the contemporary contours of the federal role in public education? As the early aid bills showed, the national citizenship guarantee does not entail a singular mode of legislative enforcement; Congress has wide policymaking discretion in discharging its legislative duty. But the essential requirement is that Congress pursue a rational and deliberative inquiry into the meaning of national citizenship and its educational prerequisites, and take steps reasonably calculated to remedy conditions that deny children adequate opportunity to achieve those prerequisites. Current policies, including NCLB, fail to satisfy this basic account of legislative duty, highlighting the need for a stronger federal role within a continuing framework of cooperative federalism.

Three policy reforms seem especially important for giving expression to the citizenship guarantee. First, Congress should enlist non-governmental organizations to develop national education standards that set common expectations of all public schools and schoolchildren, and then provide incentives to states to adopt those standards voluntarily. National education standards in some form are a logical and achievable outgrowth of the current standards-based reforms embodied in NCLB. Second, Congress should reform Title I to allocate aid simply based on child poverty, adjusted for regional cost differences, and not in proportion to each state’s own per-pupil spending. Title I should treat all poor children not as citizens of the state where they reside, but as citizens of the United States. Third, Congress should expand the federal role in school finance to narrow interstate disparities and to establish a national floor of educational opportunity below which no state or district may fall. The key feature of such a program would be a distribution of aid to states in inverse proportion to their fiscal capacity, much as federal Medicaid funds are currently distributed.

Although not a panacea for all that ails public education, these policies would foster greater equality throughout the nation by situating the federal government as the ultimate guarantor of opportunity for every child to achieve equal standing and full participation in the national community. Establishing national education standards and the resources to make them meaningful in every state will not be cheap. But as we routinely spend billions on law enforcement, courts, and national defense to enforce constitutional rights to liberty and property, isn’t it time we gave substance to the one provision of the Constitution that literally constituted the nation over a century ago? Then and now, an ambitious education policy agenda furthers the constitutional imperative of securing the promise of national citizenship.

Goodwin Liu is Assistant Professor of Law, Boalt Hall School of Law, University of California, Berkeley. This essay is adapted from Education, Equality, and National Citizenship, 116 Yale L.J. 330 (2006), and Interstate Inequality in Educational Opportunity, 81 N.Y.U. L. Rev. 2044 (2006).

Preferred Citation: Goodwin Liu, National Citizenship and the Promise of Equal Educational Opportunity, 116 Yale L.J. Pocket Part 145 (2006), http://yalelawjournal.org/forum/national-citizenship-and-equality-of-educational-opportunity.