ISSN 1062-7421
Vol. 12 No. 1 (January 2002) pp. 29-33.

ON EQUAL TERMS: THE CONSTITUTIONAL POLITICS OF EDUCATIONAL OPPORTUNITY by Douglas S. Reed. Princeton: Princeton University Press, 2001. 256 pp. Cloth $ 29.95. ISBN: 0-691-08846-2.

Reviewed by Timothy J. O'Neill, Department of Political Science, Southwestern University.

Douglas Reed has written a slim but ambitious book. ON EQUAL TERMS is one part case study in judicial politics, one part exercise in state constitutional interpretation, one part quantitative analysis of judicial impacts, and one part meditation on our national commitment to equality. The parts do not always cohere, but the book is an important contribution to our knowledge of the politics, the quandaries, and the outcomes of school finance litigation.

Reed is convinced that BROWN v. BOARD OF EDUCATION (1954) "symbolizes the moral righteousness of the law and of the capacity of our courts to do
justice, rather than simply administer it" (p. xiii). However, SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. RODRIGUEZ (1973) scuttled the hopes of those who sought to use the federal courts and the U. S. Constitution to challenge class-based inequalities in public education. Litigation shifted from the
national arena to thirty-two different state courts and constitutions. Challenges to school finance systems prevailed in half of these states. A new era in constitutional policymaking, a "new judicial federalism," dawned.

Reinvigorated courts in several states embraced a "higher law vision of state constitutionalism" (p. 90) to justify their intervention into the battle over greater educational opportunity (defined by Reed as "either adequacy or equity," p. 66). The "higher law" approach, Reed recognizes, begs the question. To what extent is the battle over school financing a constitutional issue, one that draws upon the fundamental and regime molding values and principles of a society, and to what extent is it just another policy dispute where conflicting interests compete for finite resources? A state constitution is not the simply U. S. Constitution on a smaller scale.
The fluid character of a state constitution, which is rewritten and edited--often through direct citizen vote--and is often focused on the micro and as well as the macro phenomena of government and policy, can make it different in kind from the federal constitution. Also, since most state constitutions were written in a different time and respond to different problems than those that gave rise to the U. S. Constitution, they typically lack the coherence of the federal constitution. They are seldom the kind of foundational document that we understand the national constitution to be.

Reed observes that it is the "constitutional ordering" of a regime, the way "the definition, refinement, and articulation of texts, beliefs, and structures that organize power and resources for particularly ends" (p. 58), that is key in school finance litigation and legislation. Reed unpacks the dynamics of school

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finance cases by exploring the role, influence, and power of nonjudical as well as judicial actors in molding state constitutional policy on educational opportunity. Elite and popular understandings of what constitutional texts mean, what values are contained, and what principles are at play are as important as formal judicial holdings. A judicial opinion, lacking the support of sufficiently powerful members of the general public and government, is dead letter. Here Reed relies upon a literature insisting that constitutional understandings are not only the product of court rulings and judicial opinions but also how legislatures, the general public and private organizations invoke and mold constitutional principles and values. It is not clear whether his "constitutional ordering" differs from the familiar tenets of the past four decades of case studies in judicial politics. Since William K. Muir's landmark LAW AND ATTITUDE CHANGE (1961), we have been accustomed to the ways nonjudicial actors mold constitutional meaning and practice.

Masterfully aggregating polling data about public opinion on school finance from four key battleground states (Connecticut, Kentucky, New Jersey and Tennessee) and the outcome of Texas' unsuccessful 1993 referendum on a proposed school finance system, Reed demonstrates our ambivalence about equal educational opportunity. The question, "Who opposes school finance equalization?" taps into the public's understandings of what their state constitution means. It also has an unexpected answer. The public strongly endorses educational equality even over high academic achievement. However, respondents' attachment to the value of local control, their assessment of public school effectiveness in their state, and their understanding of public schools' financial responsibility trump ideology, partisanship, class, age, race, and even personal self-interest as key variables. The public's division over school finance does not "break down neatly into beneficiaries and bankrollers" (p. 94). The paramountcy of local control as the key factor molding public opinion is a crucial finding, for not only does it conflict
with our commitment to educational equality, it underlies the very geographical divisions creating disparities in educational expenditures.

Reed seems to argue that local control is near sacrosanct in the public mind. Yet he also recounts the long history of state and national interventions into the conduct of local education. Might the concept of local control be more a surrogate for a host of values even more fundamental? Unfortunately, Reed never addressees this possibility.

The public's attachment to local control of schools is only one dimension of the geographical construction of many policy issues, according to Reed. The flight to the suburbs, the Jeffersonian espousal that the smallest government is the best because it is closest to the people's lives, the reinforcement of geographical divisions by our preferred use of districts to elect state representatives and senators-all combine to privilege some interests at the cost of other interests. Nor are the "geo-politics" (p. 136) of school finances solely about geographical communities. Class and racial divisions reinforced by district boundaries condemn some to lesser
educations.

Reed applies what he has learned to Governor James Florio's attempt to resolve the long-standing school finance dispute in New Jersey. Florio squandered one of the largest electoral victories in New Jersey history when he sought to win middle class

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districts over to his program by offering substantial property tax rebates. But his concurrent decision to raise state income and sales tax rates combined with the recession of the early 1990's pushed the middle class into opposition. He antagonized the powerful New Jersey Teacher's Association with a proposal to transfer teacher pension and social security payments to the individual school districts. Beneficiaries (the thirty poorest cities) and natural opponents (affluent school districts) opposed Florio's plan, albeit for differing reasons. The political outcomes were dramatic. Florio's public approval rating plummeted. A veto-proofed
Republican majority won the state legislature in 1991. Florio lost his reelection campaign to Christine Todd Whitman. Whitman, surfing a national tide toward academic and financial accountability for public schools that culminates in President Bush's "No Child Left Behind Act of 2002," helped pass a standards-based rather than a funding-based standard of equity. A weary state supreme court then bowed out of the controversy.

New Jersey's troubled road to educational equalization illustrates that "the interlocking ties of property wealth, home rule, and governmental fragmentation are simple, but robust, organizational rules that courts have not been able to alter, let alone erase" (p. 161). ON EQUAL TERMS offers other practical lessons for those who seek to use the courts to overcome the geo-politics of public education. Courts are better equipped to set the agendas for legislatures than they are to micromanage school reforms. The clearer and more realistic courts are in the targets they set for legislatures, the more likely legislatures will successfully tackle school finance reform. The hardest lesson taught is that popular support for educational equality diminishes as local control diminishes. In brief, to paraphrase Clint Eastwood's "Dirty Harry" character, "a court's got to know its limitations." However, the checkered history of school finance reform in New Jersey also challenges Reed's assertion that courts can exert anything more than marginal change on public education.

ON EQUAL TERMS teaches several disheartening lessons to those who believe in the power of courts to bring meaningful change to public education. Court decisions ordering a restructuring of school financing have had less impact than their supporters hoped. Reed seems ambivalent about this finding, insisting that courts count and that these decisions had impact. However, the evidence he offers seems to argue against his own limited optimism. Using district level analysis of expenditures in public schools, Reed demonstrates that "winning court decisions matter" (p. 35). The question is how much does it matter?

State supreme court decisions do result in a small but significant positive change in the distribution of some educational resources, changes not found in comparable states whose school finance systems were not overturned. States in which the courts have invalidated the school financing system have increased public school funding and such funding is typically more equally distributed that before the courts' action. Yet, as Reed himself acknowledges (p. 19), unequal educational outcomes are not the product only of inequalities in expenditures. In California, Texas, and Connecticut, some of the school systems with the highest per pupil
expenditures were also the ones with the lowest levels of academic achievement. Beyond some uncertain floor, money does not seem the antidote to the system of class and racial disparities that cause profound differences in educational outcomes.

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Reed courageously offers proposals that he believes may make more substantial progress on equal educational opportunity. He seeks to overcome the reality of local control by offering a set of changes that might make some progress within the context of the forces supporting local control. The proposals call for a special kind of "magnet school" system within "magnet neighborhoods" (p. 178).

Following Hillary Rodham Clinton's contention that it takes a village to raise a child, Reed argues that stronger schools in stronger neighborhoods are the only plausible solution to educational disparities. He recommends lowering property tax rates in attendance zones now dominated by racial minorities or the poor in order to induce white families to move in and become an active part of the neighborhood. This enterprise in social engineering swiftly takes on a life of its own. Lower property taxes in central city areas are likely to draw those who have no children. The greater demand for housing will likely increase housing costs. Hence, there
is the need for some kind of rent control to prevent gentrification of school attendance zones and the consequent loss of the racial minority or poor that once comprised them. What begins as a modest proposal quickly becomes an exercise in grand community building, one fraught with unintended consequences. Nor is it clear that Reed's proposals will have much effect even if we found the will and money to finance them. Many families, minority as well as white, have demonstrated their willingness to move into high property tax school districts because of the promise that the areas offer both good schools and good neighborhoods. Lower property taxes may not be a sufficient inducement for them to return to America's inner cities. Moreover, as Kent Tedin (1994) has argued, some whites value racial
segregation and may forgo profitable opportunities in order to pander to their prejudices. Finally constructing "imaginative and challenging magnet and charter schools" (p. 180) may be as much the problem as it is the solution, given the contestable success of such schools.

Reed worries recurrently about our failure to meet BROWN's call for genuine educational equality. Perhaps the touchstone for educational equality is not BROWN, as Reed insists, but the reapportionment cases' "one person, one vote" model. BROWN gave rise to remedies that stressed group identity and problems. The reapportionment cases challenged community identity as a permissible way to distribute voting power, impact, and effectiveness. The underlying logic of school finance reform may be corrosive of group-oriented remedies. The popular appeal of equal educational opportunity rests on the public's unwillingness to let any
individual child, regardless of race or class, out of the American promise of a fair start in the race of life. The solution to school finance inequality may not be down the BROWN road but down an altogether different path.

REFERENCES:

Muir, William K., Jr. 1961. LAW AND ATTITUDE CHANGE. Chicago: University of Chicago Press.

Tedin, Kent. 1994. "Self-Interest, Symbolic Values and the Financial Equalization of the Public Schools," JOURNAL OF POLITICS 56: 628-49.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 347 U. S. 483 (1954).

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SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. RODRIGUEZ, 411 U. S. 1 (1973).

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Copyright 2002 by the author, Timothy J. O'Neill.