control of schools, 37 the court concluded that California’s funding system violated both state and
federal equal protection clauses because it predicated a child’s education funding on the property
wealth of his or her surrounding district. 38
The Serrano decision was the first to invalidate a state’s school funding system and
represents the “first wave” of education finance litigation. 39 From roughly the late 1960s to the
1973 Supreme Court ruling in Rodriguez, “first wave” plaintiffs in school funding cases relied on
federal and state equal protection clauses to argue that all school districts should receive
substantially equal funding per pupil. 40 Litigation thus turned on whether state courts found
wealth to be a suspect classification or education to be a fundamental right, which would result in
application of strict scrutiny review and probable victory for plaintiffs. 41
B. Rodriguez and the Removal of Education Funding Litigation from Federal Courts
Just two years after Serrano, however, the United States Supreme Court’s opinion in
Rodriguez dealt a serious blow to education finance reform by effectively removing school
funding litigation from federal courts, and thus precluding any uniform, national invalidation of
property tax-based funding systems. 42 In 1971, parents and students in a poor San Antonio school
district filed an equal protection complaint in federal district court, arguing that Texas’ funding
system discriminated on the basis of wealth and denied plaintiffs their fundamental right to
education. 43 When Rodriguez came before the United States Supreme Court two years later, it
presented three challenging issues for the Court’s decision: whether wealth should be treated as a
suspect class similar to race and thus trigger strict scrutiny, whether the Federal Constitution
protected education as a fundamental right similar to speech or privacy, and whether federal
courts had the authority to review state education policy. 44
37 “Local control” of schools—the idea that public schools are best run by local school boards and communities rather than the state—
is a common policy preference running throughout both state and federal school funding litigation. See infra Part IV-C.
38 Serrano, 487 P.2d at 1259-64. The state defendants’ primary argument was that the California school funding system facilitated
local fiscal control of schools. Id. at 1259. The California Supreme Court rejected this argument, noting that “such fiscal freewill is a
cruel illusion” for poor districts because their lack of property wealth often made it virtually impossible to generate funds comparable
to that of wealthy districts, regardless of their willingness to tax at higher levels. Id. at 1259-60. The court’s critique of fiscal local
control under property tax-based funding schemes would be echoed by Justice White’s dissent in Rodriguez. See San Antonio Indep.
Sch. Dist. v. Rodriguez, 411 U.S. 1, 63-70 (1973) (White, J., dissenting) (noting that in poor districts, “no matter how desirous parents
are of supporting their schools with greater revenues, it is impossible to do so through the use of the real estate property tax”). As this
Article will demonstrate, the Illinois school funding system also fails to provide poor districts with meaningful fiscal control of their
schools. See infra Part IV-C (arguing that the Illinois Supreme Court should not continue to defer to the concept of “local control” of
39 See generally Matt Brooker, Riding the Third Wave of School Finance Litigation: Navigating Troubled Waters, 75 UMKC L. REV.
183 (2006) (discussing the various “waves,” or phases of education finance litigation in the United States); Lynch, supra note 14, at
968-84 (summarizing several landmark state supreme court school funding cases).
40 See Brooker, supra note 39, at 185 (“Plaintiffs during the first wave of cases relied heavily on the Equal Protection Clause of the
United States Constitution and asserted that all children within a state were entitled to have the same amount of money allocated and
spent toward providing them a public education and/or were entitled to equal educational opportunities.”); see, e.g., Milliken v. Green,
203 N. W.2d 457 (Mich. 1972).
41 See Brooker, supra note 39, at 185; Serrano, 487 P.2d at 1259-66 (applying strict scrutiny review). Legal scholars generally view
strict scrutiny as “‘strict’ in theory and fatal in fact” because laws do not often survive this level of scrutiny. See Gerald Gunther,
Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8
(1972) (describing strict scrutiny as “‘strict’ in theory and fatal in fact”).
42 See Brooker, supra note 39, at 186 (noting that Rodriguez “all but eliminated the ability to attack school systems based on the
Federal Constitution”); Lynch, supra note 14, at 968 (noting that since Rodriguez, plaintiffs have been “left with no other choice but to
challenge” funding systems under state constitutional law).
43 Rodriguez, 411 U.S. at 11-15 (1973). The district court initially delayed hearing of the case for two years while the Texas legislature
investigated possible reforms. Id. at 6 n. 4. When the Texas legislature failed to act, the district court finally heard the case and ruled in
favor of the plaintiffs. Id. at 11-15. Following its ruling, the court stayed its decision for another two years but retained its right to
fashion remedial actions in case the legislature failed to act. Id. at 6 n. 5.
44 See id. at 17-18 (noting the various “novel” and “complex” constitutional issues raised by the case). Before concluding its opinion,
the Court re-emphasized the complexity of school funding issues in a “cautionary postscript” that warned such issues may be outside
the ability or authority of the Court to adequately decide. Id. at 56-59.