Papers by Joshua Weishart
SSRN Electronic Journal, 2019
West Virginia is among a small minority of states using a resource-based school funding formula t... more West Virginia is among a small minority of states using a resource-based school funding formula that determines the costs of operating schools in each district based primarily on student enrollment. This "foundation allowance" insufficiently accounts for the educational needs of all children--low-income, at-risk, gifted, special needs--and lacks any basis in educational research. Indeed, there has never been been a comprehensive, nonpartisan, empirical study of the actual costs of providing a constitutionally adequate education to all West Virginia children. Such adequacy costs studies have been conducted since the early 1990s, and over 100 have been commissioned in 41 states and DC, including all of West Virginia's neighboring states. This white paper makes the case for a West Virginia adequacy cost study in keeping with state constitutional law and in the interests of sound education policy.
Stanford Law Review, Mar 1, 2014
A debate about whether all children are entitled to an “equal ” or an “ade-quate ” education has ... more A debate about whether all children are entitled to an “equal ” or an “ade-quate ” education has been waged at the forefront of school finance policy for decades. In an era of budget deficits and harsh cuts in public education, I submit that it is time to move on. Equality of educational opportunity has been thought to require equal spending per pupil or spending adjusted to the needs of differently situated chil-dren. Adequacy has been understood to require a level of spending sufficient to satisfy some absolute, rather than relative, educational threshold. In practice, however, many courts interpreting their states ’ constitutional obligations have fused the equality and adequacy theories. Certain federal laws express principles of both doctrines. And gradually, more advocates and scholars have come to en-dorse hybrid equality-adequacy approaches. Still, the debate persists over seem-ingly intractable conceptual precepts and their political and legal ramifications. Tracking the ph...
This essay responds to Derek Black, The Constitutional Compromise to Guarantee Education, 70 Stan... more This essay responds to Derek Black, The Constitutional Compromise to Guarantee Education, 70 Stanford Law Review 735 (2018), which advances an originalist theory for recognition of a federal right to education. Black argues that Congress intended to guarantee education as a federal right of state citizenship through the ratification of the Fourteenth Amendment. I question whether the relevant history is susceptible to the another inference, one that situates education a right of both state and national citizenship. I also question whether recognition of a federal right would have the unintended consequence of devaluing existing state education rights.
William and Mary law review, 2017
As federal law continues to devolve more education policymaking to states, state courts will rema... more As federal law continues to devolve more education policymaking to states, state courts will remain a primary forum for settling education rights. State fora do not inspire confidence, however, because their doctrine is so uncertain. A majority of state supreme courts do not specify a level of scrutiny and at times seem to be improvising judicial review. The resulting decisions can exhibit a troubling lack of foresight. Most notably, while federal doctrine increasingly reveals the interrelation of liberty and equality claims, state courts have failed to capitalize on that point—even though their decisions were among the first to concede it. Too often, instead, they pigeonhole education claims into one category or the other when the claims should fit in both. This Article proposes that courts analyze the state constitutional right to education as a claim for “equal liberty” and subject it to a new standard of review. State court adjudication of the right to education over the past fi...
Remedies eJournal, 2019
Education rights cases often devolve into a farce of constitutional brinkmanship played by a mise... more Education rights cases often devolve into a farce of constitutional brinkmanship played by a miserable cast of reluctant courts and recalcitrant legislatures. Between successive rounds of litigation and tepid legislative fixes, come threats of impeaching judges, closing schools, stripping courts of jurisdiction, and holding legislators in contempt. Despite all the bluster, judges and legislators both anxiously await the curtain call, when they can bow out and terminate the matter. In the end, what passes for constitutionality in the successful cases is a school funding scheme judged “reasonably likely” or “reasonably calculated” to achieve an adequate or equitable education—as opposed to a public education system that is adequate and equitable. But rather than reflect the reality that adequacy and equity are interminable demands, these cases reflect a failure to confront and blunt that reality for disadvantaged children. The trouble lies in a judicial exit strategy focused on a fixe...
A federal right to education is legally viable provided it reconciles children’s equality and lib... more A federal right to education is legally viable provided it reconciles children’s equality and liberty interests and overcomes the remedial challenges that have afflicted the state constitutional right to education. Decades of state court adjudication suggests the right is properly construed to moderate the demands of educational equity and adequacy, as fonts of equality and liberty. Courts thus recognize that differently-situated children should be treated as equals according to their needs so as to cultivate their positive freedoms to become full and equal citizens. The resulting claim for equal liberty entitles children to an equally adequate, adequately equal education. A federal right to education could unify both dimensions by implicating U.S. constitutional guarantees of substantive due process and equal protection. The union of these doctrines is the site of judicially enforceable standards to protect children from the harms of educational deprivations and disparities.
Over the course of five decades and three waves of litigation, courts have approved remedies unde... more Over the course of five decades and three waves of litigation, courts have approved remedies under the state constitutional right to education that demand more equitable and adequate funding of public schools. Scholars have urgently called for a “fourth wave” of litigation seeking remedies beyond money: racial and socioeconomic integration, school choice, universal preschool, and teacher tenure reform, just to name a few. Desperate for progress and to escape the rut of incessant school funding battles, advocates have in fact initiated lawsuits seeking a broader range of remedies. If this strategy induces a fourth wave, it will encounter a beleaguered state judiciary still skeptical, lo these many years, that court-directed remedies do not invade the provinces of the other coordinate branches. State courts are unlikely to overcome these doubts until they adopt cohesive standards aligning education rights and remedies. This Article proposes that alignment can be achieved through reaso...
Confronting persistent and widening inequality in educational opportunity, advocates have regarde... more Confronting persistent and widening inequality in educational opportunity, advocates have regarded the right to education as a linchpin for reform. In the forty years since the Supreme Court relegated that right to the domain of state constitutional law, its power has surged and faded in litigation challenging state school finance systems. Like so many of the students it is meant to protect, however, the right to education has generally underachieved, in part because those wielding it have not always appreciated its distinctive forms and function. Deconstructed, the right to education held by children has been formulated doctrinally as both a claim-right, imposing affirmative duties on the state to act, and an immunity, disabling certain state action. These two strands — oft-manifested as the claim-right to educational “adequacy” and an immunity entailing “equality” of educational opportunity — once considered irreconcilable are actually interlocked by the right’s core, historical f...
“Separate but equal” legally sanctioned segregation in public schools until Brown. Ever since, se... more “Separate but equal” legally sanctioned segregation in public schools until Brown. Ever since, separate but free has been the prevailing dogma excusing segregation. From “freedom of choice” plans that facilitated massive resistance to desegregation to current school choice plans exacerbating racial, socioeconomic, and disability segregation, proponents have venerated parental freedom as the overriding principle.<br><br>This Article contends that, in the field of public education, the dogma of separate but free has no place; separate is inherently unfree. As this Article uniquely clarifies, segregation deprives schoolchildren of freedom to become equal citizens and freedom to learn in democratic, integrated, and transformative settings. We must name and reclaim these positive, social, emancipatory freedoms—envisioned by the framers of state constitution education clauses, developed by early progressives, reflected in the case law, and applied in “freedom schools” and by Southern Black teachers during the civil rights era. <br><br>School choice practices that sustain and intensify segregation arbitrarily deprive children of these freedoms and thus offend due process guarantees in state constitutions. Antebellum state courts were the progenitors of substantive due process, prohibiting arbitrary deprivations of vested rights and voiding class legislation that conferred special benefits or imposed unique burdens rather than serve legitimate, public purposes. This Article is the first to propose revitalizing state due process guarantees to resist segregative school choice practices in as-applied challenges. <br><br>Amid a pandemic, legislators are advancing bills which exploit the specious rhetoric of public-school failures and angst about the modes of instruction to expand schools of choice. But parental freedom through publicly funded school choice enjoys no constitutional protection. Nor is there a legitimate, public purpose for segregative practices that arbitrarily deprive children of their freedoms, confer benefits on a few and burden the rest, and subvert the state constitutional duty to educate all children democratically. <br><br>Opposition to separate but free extends beyond school choice, reaching potentially other segregative state actions that curtail educational freedoms.
This chapter clarifies the nature of right to education in the United States. It analyzes the con... more This chapter clarifies the nature of right to education in the United States. It analyzes the constitutional text and judicial decisions from the past half-century to identify the right’s form, function, and scope. These interrelated, constitutive parts reveal (i) the duties and freedoms conferred by the right, (ii) the purpose and content of those educational entitlements, (iii) the conditions by which the right can be vindicated in courts, and (iv) the range of potential remedies.
American Journal of Education
A debate about whether all children are entitled to an "equal" or an "adequate" education has bee... more A debate about whether all children are entitled to an "equal" or an "adequate" education has been waged at the forefront of school finance policy for decades. In an era of budget deficits and harsh cuts in public education, I submit that it is time to move on.
Uploads
Papers by Joshua Weishart