Powell—writing the majority opinion in both Ambach and Rodriguez—did not believe the case
contradicted his previous reasoning. 68 In Plyler v. Doe (1982), the Court invalidated a Texas law
that withheld state funds from local school districts that educated illegal immigrant children. 69
Once again, the Court seemed to ascribe a unique “importance” to education beyond that of many
other functions of the state. 70
2. Rodriguez’s Impact on School Funding Litigation
Regardless of Rodriguez’s inconsistencies, the decision had a profound impact on future
education funding cases. 71 Although the California Supreme Court would affirm its Serrano
decision in 1976 (in a second, follow-up opinion known as Serrano II) based on the state
constitution’s equal protection clause, 72 plaintiffs in post-Rodriguez cases shifted their focus to
state constitution education clauses. 73 In Robinson v. Cahill, decided just one month after
Rodriguez, the New Jersey Supreme Court held that the state’s education funding system violated
the New Jersey state constitution’s guarantee of a “thorough and efficient” system of public
education found in the New Jersey state constitution’s education article. 74 In time, state equal
protection arguments largely ceded to education article complaints, and focused on education
adequacy rather than absolute funding equality. 75 Under this logic, plaintiffs argued that
inequitable finance schemes denied certain students a minimum level of education quality. 76
Plaintiffs proceeding under education article/adequacy claims fared considerably better than those
making state equal protection arguments similar to Serrano. 77
Some legal scholars have noted that the shift from federal to state claims in education
funding litigation echoes Supreme Court Justice William Brennan’s call for a new judicial
effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote.”), with Ambach, 441 U.S. at 76
(“Public education . . . ‘fulfills a most fundamental obligation of government to its constituency.’ The importance of public schools in
the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests, long has
been recognized by our decisions.”).
68 Ambach, 441 U.S. at 78 n. 7 (“As San Antonio Independent School Dist. v. Rodriguez recognized, there is no inconsistency between
our recognition of the vital significance of public education and our holding that access to education is not guaranteed by the
69 Plyler, 457 U.S. at 221-22, 229; see also NOWAK & ROTUNDA, supra note 27, at 467-68 (summarizing Plyler).
70 While noting that, pursuant to Rodriguez, education is not a fundamental right, the Court nonetheless explained that “neither is
[education] merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation . . . the importance of
education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction.”
Plyler, 457 U.S. at 221. Plyler largely rested on the premise that illegal immigrant children have not made the choice to illegally
immigrate to the Untied States on their own, and should be distinguished from adult illegal immigrants (such as their parents). Id. at
219-20. The case is nonetheless difficult to explain in relation to the Court’s denial of education as a fundamental right. See NOWAK &
ROTUNDA, supra note 27, at 594 (stating that the Court’s decision in Kadrmas v. Dickinson Public School, 487 U.S. 450 (1988),
which reaffirmed that education is not a fundamental right, is “difficult to explain” in relation to Plyler); see also Rubio, supra note
64, at 1668 (suggesting that federal Equal Protection Clause claims regarding education rights should trigger “intermediate” scrutiny
pursuant to Plyler).
71 See Brooker, supra note 39, at 186 (noting that Rodriguez “all but eliminated the ability to attack school systems based on the
federal Constitution”); O’Neill, supra note 27, at 545 (“Beginning with San Antonio Independent School District v. Rodriguez,
plaintiffs concerned with educational equity have gradually lost access to the federal court system.”).
72 Serrano v. Priest (Serrano II), 557 P.2d 929, 958-59 (Cal. 1976); see also Brooker, supra note 39, at 186 (discussing the impact of
Rodriguez on the original Serrano decision).
73 See Brooker, supra note 39, at 186 (noting that post-Rodriguez plaintiffs, often referred to as the “second wave” of school funding
litigants, turned to state constitution equal protection clauses and education clauses in their arguments); Robinson v. Cahill, 303 A.2d
273, 287-98 (N.J. 1973) (resting its decision on a violation of the state’s education clause).
74 Robinson, 303 A.2d at 295.
75 See Brooker, supra note 39, at 186-88 (discussing the shift in legal arguments following Rodriguez).
76 Id.; see, e.g., Rose v. Council for Better Educ., 790 S. W.2d 186, 191 (Ky. 1989).
77 NAT’L EDUC. ACCESS NETWORK, EDUCATION ADEQUACY LIABILITY DECISIONS SINCE 1989, SEPTEMBER 2011 (2011),
Outcome_2011.pdf [hereinafter ADEQUACY LIABILITY DECISIONS] (noting that twenty-two of thirty-four state adequacy cases have
resulted in plaintiff victories, and that cases were pending in nine other states); see also Brooker, supra note 39, at 187-89 (noting that
most cases arguing equal protection claims failed, whereas plaintiffs scored major victories under adequacy claims in Montana,
Kentucky, and Texas).