The New School Finance Litigation or Why Race Discrimination in Public Education is More than Just a Tort

Abstract

A trend has developed in education discrimination cases that has yet to be the focus of significant scholarly attention. Lawyers have begun to argue and courts to accept that equal educational opportunity for children of color poses a problem of distributive justice rather than a problem of corrective justice. Accordingly, these new cases do not turn on proof of racially invidious misconduct, but on the existence of racially disproportionate misfortune. For example, the trial court judge in Campaign for Fiscal Equity v. New York, the most recent school finance litigation in that state, held that the disparate racial impact of New York's school funding formula violates the implementing regulations of Title VI of the Civil Rights Act of 1964 B even though plaintiffs did not allege that the state engaged in intentional race discrimination. That case, and several others like it, have brought race back into the conversation about equal educational opportunity in the United States in a way that harkens back to Brown v. Board of Education.

This article argues that the distributive approach that the Supreme Court took in Brown I B and that is the basis of the recent trend in education discrimination litigation B is more appropriate than the corrective course the Court chose in most of its desegregation cases. It contends that distributive justice best suits education discrimination cases because it better accounts for and responds to the experience of race discrimination in public schools. Indeed, given the central role that public education plays in a democratic society, corrective justice is simply inappropriate to resolve claims of discrimination in the distribution of that essential community resource.

At a time in United States history when there is still a significant racial gap in standardized test scores, the remedies in many desegregation cases have been exhausted, affirmative action programs in educational institutions are under attack, and programs for non-English speaking K-12 students and remedial programs for college students are being scaled back or eliminated, it is particularly important to explore distributive approaches to ensuring that students of color have an equal chance for equal public education. The article explains why the implementing regulations of Title VI should provide a promising way to pursue that goal.

Keywords: Education, Disegregation, School Finance, race Discrimination, Corrective Justice, Distributive Justice, torts

JEL Classification: H40, H52, H73, I22, I28, J15, J70, K13, K30