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Where Have All the Lawyers Gone?

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I hope your summer is going well.  In my last blog, written before taking a summer hiatus, I talked about Sheff v. O'Neill, a desegregation case in Connecticut, decided in 1996.  In that case, the Connecticut court ruled that all segregation, regardless of its cause, violates the state constitution, and it imposed on Hartford an affirmative obligation to integrate schools in the Hartford metropolitan region.  I asked why that ruling has largely been confined to Hartford, given that the state constitution applies across the entire state.

Here, I would like to broaden the inquiry and ask why Sheff hasn't sparked similar desegregation lawsuits in other states.  To appreciate the question, it is important to understand some related history involving school finance litigation.

In 1973, the United States Supreme Court, in San Antonio v. Rodriguez, rejected the claim that unequal school funding violates the federal Constitution.  Undeterred, lawyers turned to state constitutions--all of which guarantee a right to education--and argued that these constitutions demanded equal or adequate funding.  They attempted to achieve retail--state by state--the equitable funding they couldn't achieve wholesale, after the U.S. Supreme Court turned them away.  To date, nearly every state has been sued by litigants seeking additional funding for under-resourced schools.

The mystery is why there hasn't been a similar state-by-state campaign around school integration.  In 1974, the Supreme Court, in Milliken v. Bradley, ruled that school desegregation remedies could not cross school district lines, which meant that suburban districts could not be included within busing orders.  The Court reasoned that unless there was proof that the suburban districts intentionally segregated their students, they must be exempt from school desegregation orders--even though states, not school districts, are ultimately responsible for education.

Yet desegregation lawyers did not respond to this ruling by turning to state constitutions--even though, as Sheff demonstrated decades later, this option was a legally viable one.  Lawyers could have argued, as they did in Sheff, that the right to education imposes an affirmative obligation on the state to make reasonable efforts to integrate schools--regardless of whether existing segregation is legally required or caused by other factors, and regardless of school district lines.  The essential idea is that the right to an equal or adequate education includes the right to be educated in racially and socioeconomically integrated schools, at least where feasible.

The failure to pursue state litigation in 1974 most likely reflected some exhaustion and disappointment about school desegregation.  Bussing for desegregation sparked controversies across the country, and engendered few fans.  Most likely, civil rights lawyers were too wearied by the bussing controversies to think of new strategies, and many had become skeptical of integration altogether--hence the popularity of school finance litigation.

Still, it's striking that Sheff, decided in 1996, did not cause more lawyers to think anew about the possibilities of state litigation. To date, only two other cases have been brought under the Sheff model--one in New York, which was dismissed; and one in Minnesota, which led to a partial settlement.  So my question:  where have all the lawyers gone?  Why haven't more lawyers attempted to bring integration cases under state constitutions and instead have stuck with school finance litigation?

The answer cannot be that school finance litigation is easier.  Quite the contrary--it's long and remarkably complicated.  It also can't be that the legal claim to more school funding is stronger, as increasing school funding is not obviously more effective at improving education than integration.  And it can't be that school finance litigation is more popular--it's quite controversial in states where plaintiffs succeed in court and legislatures have to increase spending.

Perhaps it's just proof that even civil rights lawyers have largely given up on integration as a strategy for increasing education equity.  If so, that's a real shame.  As Justice Marshall said when dissenting from Milliken v. Bradley, it may seem easier to keep our schools segregated, but it's a decision our nation will regret.  He also suggested that until our children learn together, our people will not be able to live together.  Given the recent turmoil around race, Marshall's words, written in 1974, appear prescient.  So, again, where have all the lawyers, who might be championing the cause of integration as a right under state constitutions, gone?

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