have been needed, however, only the Texas state legislature had authority to make such
decisions. 58 The Supreme Court thus reversed the district court, ending the plaintiff’s fight. 59
1. The Supreme Court’s Inconsistent Treatment of Education as a Fundamental Right
The Rodriguez decision appears to clash with (if not wholly contradict) the Court’s
opinions in education cases both before and after Rodriguez. 60 In Sweatt v. Painter (1950), a pre-
Rodriguez case, the Court held that Texas could not bar qualified African Americans from
attending the University of Texas Law School even if it provided a separate, all-black alternative
institution. 61 Critically, the Court’s decision was heavily based on the fact that the alternative
school was not comparable to the University of Texas in terms of educational quality, resources,
and prestige. 62 Although Sweatt involved a law school, and ultimately rested on the Equal
Protection Clause, the Court’s willingness to evaluate the schools’ relative quality clashes with
the Rodriguez Court’s refusal to judge Texas’ public school policy, and its apparent acceptance of
public schools providing vastly different levels of educational quality. 63 In Brown v. Board of
Education (1954), also pre-Rodriguez, the Court stated that “education is perhaps the most
important function of state and local governments . . . the very foundation of good citizenship,”
thus elevating the status of education beyond that of a “typical” right. 64
Cases after Rodriguez also call into question the Court’s refusal to recognize education as
a fundamental right. 65 In Ambach v. Norwick (1979), the importance of public education in civic
life was the determinative factor in finding that a state may deny resident-aliens teaching
certification. 66 The Court upheld the teaching certification restriction, it explained, because some
state functions are so critical to democratic self-governance that it is permissible to exclude all
those who had “not become part of the process of self-government.” 67 Nevertheless, Justice
governed by local boards of education” and that “[l]ocal control of education manifests itself in an American invention, the local
school board”). As this Article will demonstrate, however, such deference to the concept of local control is misguided. See infra Part
IV-C (arguing that property tax-based funding systems do not give poor school districts any meaningful fiscal control); see also
Serrano v. Priest, 487 P.2d 1241, 1259-60 (Cal. 1971) (finding that California’s school funding system failed to provide poor districts
with local fiscal control).
58 Rodriguez, 411 U.S. at 58-59. It would take the Texas state legislature more than two decades—and prodding from several state
supreme court decisions—before it passed meaningful education funding reform measures. See School Funding Cases in Texas,
NAT’L EDUC. ACCESS NETWORK, http://schoolfunding.info/2011/10/school-funding-cases-in-texas/ (last updated Jul. 2013)
(summarizing education funding litigation and legislative action in Texas following Rodriguez).
59 Rodriguez, 411 U.S. at 58-59.
60 See, e.g., Sweatt v. Painter, 339 U.S. 629 (1950); Brown v. Bd. of Educ., 347 U.S. 483 (1954); Ambach v. Norwick, 441 U.S. 68
(1979); Plyler v. Doe, 457 U.S. 202 (1982); see Lynch, supra note 14, at 997 (noting that Plyler “conflicts sharply with the
Rodriguez court's conclusion that a fundamental right to education does not exist”).
61 Sweatt, 339 U.S. at 634-36.
62 Id. at 632-34 (comparing, unfavorably, the number of faculty members, size of law libraries, existence of moot court teams and law
review, professional affiliations, etc. of both schools).
63 See Rodriguez, 411 U.S. at 84 (Marshall, J., dissenting) (arguing that in Sweatt, the Court “acknowledged that inequality in the
educational facilities provided to students may be discriminatory state action as contemplated by the Equal Protection Clause”).
64 Brown, 347 U.S. at 493. Brown, of course, was also decided on the basis of equal protection of African American students, and it
did not rule on whether education is a fundamental right. Id. Nevertheless, it clearly characterized education as something more than
just “important” to American life. See Greg Rubio, Note, Surviving Rodriguez: The Viability of Federal Equal Protection Claims by
Underfunded Charter Schools, 2008 U. ILL. L. REV. 1643, 1667 (2008) (arguing that the “remarkably sweeping recognition of the
importance of education” in Brown suggested, at least immediately after the ruling, that the Court was ready to recognize a
fundamental right to education).
65 See Ambach, 441 U.S. 68; Plyler, 457 U.S. 202.
66 Ambach, 441 U.S. at 74-75. Two foreign nationals, both long-time residents of the U.S. and married to Americans, were denied
certification by New York State because they had not attained citizenship. Id. at 71-72.
67 Id. at 74. The Court found that teaching in public schools “go[es] to the heart” of representative government because education
fosters American values in children and prepares them to engage in civic life; thus, a state may have a legitimate interest in only
employing U.S. citizens as teachers. Id. at 76. Under these circumstances, only rational relationship review should apply. Id. The
Court’s reasoning in Ambach is difficult to reconcile with its rejection of the Rodriguez plaintiffs’ fundamental rights argument.
Compare Rodriguez, 411 U.S. at 35 (“It is appellees' contention [which the Court rejected] that education is distinguishable from other
services and benefits provided by the State because it bears a peculiarly close relationship to other rights and liberties accorded
protection under the Constitution. . . . [T]hey insist that education is itself a fundamental personal right because it is essential to the