Litigating Education

Sixty-six years have passed since Brown v. Board of Education. The Brown decision came down in 1954; however, in the 16 dual system states, white resistance stalled school desegregation until the late1960s and early1970s. Since Brown, state and federal courts have steadily engaged litigation about education access, school funding, education equity, and opportunity to learn. In recent years, litigation has challenged school reform schemes such as vouchers, charters, the definition of highly qualified teachers, and the practice of disproportionately placing uncertified teachers-in-training as teachers-of-record in schools and classrooms serving urban poor students of color. These schemes—which are often viewed as new and innovative—have old roots in resistance to Brown[1].

Nearly 70 years of litigation about education access, school funding, education equity, and opportunity to learn has yielded two findings: Money matters. And judicial involvement is critical for ensuring that school funding is equitable. In fact, research has shown that court ordered school finance reform tends to increase state spending in lower-income school districts and decrease expenditure gaps between low and high income districts. A National Bureau of Economic Research study (2015)[2] found:

For children from low income families, increasing per-pupil spending yields large improvements in educational attainment, wages, family income, and reductions in the annual incidence of adult poverty. All of these effects are statistically significant … (p.39).

Despite this finding and nearly 50 years of confirming educational research, experimentation with specious and unproven schemes continues in districts and schools serving urban poor students of color. And, intense resistance to court ordered remedies persists even in the face of forceful judicial opinions that find that states are defaulting on their constitutional duty to fairly educate their poorest children.

The recent pandemic spawned by the novel coronavirus (COVID-19) has ripped away the thin veneer that attempted to hide pervasive and harmful education inequality. In many ways, the pandemic has exposed how much further the nation has to go in order to fulfill children’s constitutional right to an education—a right that states define as a democratic imperative, fundamental value, and paramount duty of the state.

In an effort to raise awareness among its members about the historical roots and current resonance of Brown, the American Bar Association’s (ABA) Civil Rights and Social Justice Section established an Education and Democracy Webinar Series. Part 4 of the series, “The Price Paid for Brown: Desegregation and the Expulsion of Black Teachers—Implications Then & Now,” was held on April 30, 2020 and examined the historic role of black educators in school desegregation efforts, the retaliation they faced as a result, and the ongoing implications as a consequence of Brown v. Board. This segment also explored how the coronavirus—COVID-19—has further exposed the failures of public policy to bridge the cultural, technical, and economic divide in public education.

According to Cynthia Swann, co-chair of the ABA Education Committee and the webinar’s moderator: Increasingly, ABA members are called upon to litigate or issue judicial decisions about public schooling and related concerns. Understanding education history and research is critical to better legal strategy and judicial decisions.

Approximately 160 ABA members participated in the webinar in which I participated as AACTE Dean in Residence along with Congressman Bobby Scott, chairman of the Committee on Education and Labor, U.S. Representative for Virginia’s 3rd Congressional District; Reg Weaver, former National Education Association (NEA) president and vice-president of Education International (EI); and, Tanya Clay House, senior program officer for voting rights, State Infrastructure Fund, NEO Philanthropy and former deputy U.S. assistant secretary for  P-12 Education in the Obama Administration.

To view webinar, visit

[1] Fenwick, L. (2017). The voucher scheme…again…really? Phi Delta Kappan Poll Perspectives,

[2] Jackson, C.K. et al (2015). The effects of school spending on educational and economic outcomes: Evidence from school finance reforms. National Bureau of Economic Research,

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