Reversing Rodriguez: A Siren Call to a Dangerous Shoal

“The blunt truth is that politicians and officials are under no compulsion to pay much heed to classes and groups of citizens that do not vote.”

—V.O. Key (1949)^[1]

I. Introduction

In December of 2019, a group of students, parents, and their attorneys gathered outside the Federal District Court of Rhode Island following oral arguments in their case against the state of Rhode Island. Together, they cheered, “Civics!”^[2] The chant reflected the central contention of their case: that the Constitution guaranteed them a right to some form of civic education and the state was not doing enough to protect this right.^[3] Their attorneys stated bluntly, “Civic education in this state is a disaster and we need to have it cleaned up.”^[4] According to the plaintiffs, only one obstacle stood in their way, San Antonio Independent School District v. Rodriguez,^[5] a 1973 Supreme Court decision.

San Antonio Independent School District v. Rodriguez was a blockbuster in terms of education and constitutional law.^[6] In a 5–‍4 majority opinion, the Court upheld Texas’s school finance system,^[7] concluding that wealth was not a suspect classification under the Equal Protection Clause and education was not a fundamental right under the Due Process Clause of the Fifth and Fourteenth Amendments to the U.S. Constitution.^[8] The decision effectively foreclosed federal courts as an avenue to meaningful change in public education,^[9] leaving advocates to seek remedies in other harbors beyond the federal courts, most often in state courts.^[10]

Nevertheless, Rodriguez has become a modern-day Siren,^[11] beckoning scholars and litigators searching for a quick federal court fix to educational inequality. Over time, theories have emerged (or re-emerged) that recast education as a fundamental right under the United States Constitution. Some sound in policy,^[12] others rely on constitutional interpretation.^[13] To date, none have survived Rodriguez’s rocky shoals.^[14]

Many of these arguments, including those found in two recent federal court cases,^[15] seek a constitutional minimum level of education (a “quantum”) that provides students with the necessary skills to function as engaged citizens and informed voters.^[16] The shared lynchpin of these arguments is that the nation’s democratic health is linked to a court-defined level of educational opportunity, suggesting that this relationship elevates education to status of a fundamental right.

But these efforts to reverse Rodriguez are misguided, dangerous, and, most importantly, overlook a significant cause of the problems of civic engagement and educational equality: a dilution of voter rights and political power. First, it is unlikely that the current conservative Court will find a positive federal right to an education,^[17] especially when considering that the Court has already rejected such arguments.^[18] Second, these efforts are dangerous because they invite an increasingly conservative federal bench to define a constitutional right to education through market-based solutions that often erroneously conflate “choice” with equality and will work to undermine our nation’s system of public education.^[19] Indeed, researchers continue to demonstrate the pernicious impact of free-market concepts when applied to public goods, such as education,^[20] and the Court has already signaled its desire to give parents more “choice.”^[21] “Free-market” advocates have already detailed how they can use attempts to establish a federal right to education as an opportunity for promoting their policy agenda through the courts.^[22] Alternatively, federal courts could mandate Congress to act. This is also problematic, given that Congress’s last major intervention in educational policy was the No Child Left Behind Act (NCLB), which led to a wrath of devastating unintended consequences.^[23]

Third, and more importantly, a focus on an educational right as the means to educational equality confuses cause with effect and fails to understand that it is virtually impossible to achieve educational equality or increase civic engagement without securing equality in the political process. We contend that improving civic participation and educational equality are more closely associated with voting. Indeed, the empirical political science research has demonstrated that increased access to the ballot box leads to both increased political participation and greater resources for education. In light of this evidence, education equality advocates should focus judicial reform efforts on voter rights cases while also advocating through the legislative and political process for reform that will ensure greater equality at the ballot box.^[24] Equality in education is a question answered in the first instance by securing equality at the ballot box. Improving educational rights is a question in the first instance of protecting and securing voter rights. This Article begins this effort.

This Article is organized as follows. Part II discusses how the Supreme Court has addressed the issue of education as a fundamental right under the U.S. Constitution, focusing on Rodriguez. We highlight current efforts to overturn the established precedent, noting that these attempts are largely reruns of Rodriguez^[25] and have little chance of success. Part III notes the risks of inviting more federal control over public schools through court or legislative intervention. Part IV draws from political science literature to establish the close connection between voter rights and policy choices, including those related to education, highlighting this point through an examination of the Voter Rights Act of 1965. In this Part, we focus on two Supreme Court cases that have had a particularly negative impact on voter rights. In Part V, we present several realistic paths forward for scholars and litigants to advocate for changes that protect voter rights as a means to promote the type of educational change they now seek by revisiting Rodriguez.

Our approach has its limits and is not a silver bullet,^[26] but protecting and securing voter rights and protections is the natural, most accessible first step in creating equality as a political and educational matter.^[27] Singular solutions to complex educational problems do not exist,^[28] but some can be more effective and enduring. The right to vote is foundational to our democracy, preceding even public schools, or any right to a particular quantum of education. In a world of imperfect alternatives of solutions to law and policy issues^[29] and finite resources, our legal and political strategy will yield a substantially greater return on investment with reduced risks than current efforts to extract a federal right to education from an unfriendly judiciary.^[30] The recent coronavirus pandemic and its twin impact on school district resources and voting only reinforces the logic and urgency of our argument. The pandemic has exposed dangerous fault lines in our society and put an even greater focus on the unequal ballot box and its consequences,^[31] particularly for people of color.^[32]

II. Rodriguez and Its Legacy

A. San Antonio Independent School District v. Rodriguez: Education Is Not a Fundamental Right and Wealth Disparities Are Not Suspect Classification

In 1968, a group of parents and schoolchildren challenged Texas’s school finance system in San Antonio Independent School District v. Rodriguez.^[33] They grounded their claims in the Equal Protection and Due Process clauses of the Fourteenth Amendment.^[34] Like most school districts, Texas financed public schools primarily through local property tax revenues, supplemented by state distributions.^[35] The plaintiff-students resided in property-poor communities and, as a result, were significantly disadvantaged in their ability to fund their schools.^[36] Plaintiffs argued that wealth is a suspect class, particularly when assessing educational opportunity and, therefore, the “strict scrutiny” test should be applied in determining whether state finance formula adequately compensated for their inability to raise local funds.^[37] They also argued that the Fourteenth Amendment recognized education as a fundamental right to which they were being denied.^[38] The lower court found the financing system unconstitutional.^[39]

In a 5–4 decision, accompanied by dissents and concurrences, the Supreme Court rejected these arguments.^[40] The Court characterized the district court’s analysis as based on flawed assumptions as follows: “[S]ince, under the traditional systems of financing public schools, some poorer people receive less expensive educations than other more affluent people, these systems discriminate on the basis of wealth.”^[41]

The majority concluded that in order to demonstrate a suspect classification based on wealth differences that triggered a strict scrutiny review, the plaintiffs had to plead facts that reflected an “an absolute deprivation of a meaningful opportunity” to an education.^[42] Plaintiffs failed to do so,^[43] and the Court applied the “rational basis test,” finding Texas’s school finance system constitutional.^[44]

Plaintiffs also argued that the substantive Due Process Clause of the Fourteenth Amendment guaranteed a fundamental right to education. The Court rejected this claim,^[45] despite acknowledging the direct connections between education, democracy, and civic life,^[46] citing a line of education cases.^[47] For instance, Brown v. Board of Education found “education is perhaps the most important function of state and local governments,”^[48] a sentiment echoed in other education decisions.^[49] Nevertheless, the Court concluded that those factors did not elevate education to a fundamental right^[50] under the Constitution.^[51] The Court cautioned that prioritizing education as a fundamental right over other public policy areas, such as housing,^[52] could convert the Court into a “super-legislature.”^[53] Additionally, it underscored that education was historically a matter of state and local control.^[54]

Justice Marshall dissented, arguing that strict scrutiny should apply because equal educational opportunity was so closely linked to other constitutional rights,^[55] citing Brown v. Board of Education,^[56] Wisconsin v. Yoder,^[57] and other education cases.^[58] Justice Marshall argued that, in the context of school finance, “local control” should not be dispositive, since it constituted only “a narrow aspect” of the concept involving “the raising of educational funds.”^[59] But Justice Marshall was joined only by Justice Douglas.^[60] Justice White found the Texas system was so devoid of logic that it failed to meet the rational relationship test.^[61]

In dicta, the majority entertained a possibility that some constitutional right to a minimum standard of education might exist:

Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provide an education that falls short . . . in the present case[.] [N]o charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.^[62]

This dictum has been used as a life raft for scholars searching to find a federal right to education within Rodriguez’s tight and unfriendly shores.^[63] Using dicta to create an affirmative constitutional right is always problematic, since dicta has limited precedential value. It is even more problematic because this elusive quantum must be created and defined within Rodriguez’s limiting facts, which upheld an educational system that even the majority recognized as disturbingly unequal.^[64]

Some constitutional standard of education may exist, and that issue would merit a robust debate among legal and educational scholars. As a practical matter, however, there is no evidence that the Supreme Court is inclined to reverse or substantially modify Rodriguez. In addition to these legal headwinds, efforts to reverse Rodriguez overlook the political reasons that produce educational inequality.^[65]

B. Subsequent Decisions by Supreme Court Offer Little Hope That It Will Reverse or Modify Rodriguez

Despite numerous invitations, the Supreme Court has refused to modify or expand Rodriguez. In Plyler v. Doe,^[66] a 5–4 majority again affirmed some minimal quantum of education might exist but did so without disturbing the majority decision in Rodriguez. Plyler addressed the constitutionality of an important Texas statute. The statute permitted the state to withhold funds for education to children not “legally admitted” to the United States,^[67] and the 1975 revision to this statute allowed local districts to legally deny enrollment to such students.^[68] Plaintiffs succeeded in their challenge to a complete denial of education.^[69]

In upholding the plaintiffs’ right to attend a public school, the Plyler court created an intermediate level of scrutiny for undocumented children on equal protection grounds, and one concurrence noted that education was subject to a more exacting level of scrutiny under “unique circumstances” of the case.^[70] Plyler reaffirmed Rodriguez’s holding that education was not a fundamental right.^[71] Notably, Plyler continued to recognize a tight link between education and democracy,^[72] yet refused to use that rationale to elevate education to a fundamental right.^[73]

In Papasan v. Allain, the Court affirmed, in passing, Rodriguez’s underlying principles.^[74] Papasan concerned a challenge to Mississippi’s distribution of proceeds from the sale of federal land to school districts,^[75] and the central issue was framed as follows: “Given that the State has title to assets granted to it by the Federal Government for the use of the State’s schools, does the Equal Protection Clause permit it to distribute the benefit of these assets unequally . . . as it now does?”^[76]

While the Papasan Court remanded the case to consider whether the distribution of funds from a specific sale of land violated the Equal Protection Clause, it noted that the issue before the Court differed from Rodriguez,^[77] and notably left open, the issue of whether there was some minimal guarantee to an education.^[78]

In Kadrmas v. Dickinson, the Court again left Rodriguez’s central points undisturbed.^[79] Kadrmas involved a challenge to a state statute that imposed a transportation fee to students who attended public schools.^[80] A student contended that the fee violated the Equal Protection Clause because it deprived those who could not afford the fee even a minimal access to education.^[81] The Court reframed the plaintiff’s claims as raising two questions: (1) whether the statute was unconstitutional because it placed a greater obstacle to education in the path of poor than the wealthy, or (2) whether the state was affirmatively required to provide free transportation to those who could not afford the fee.^[82] The Kadrmas Court held that differential treatment based on wealth “alone” would not trigger strict scrutiny review.^[83] It also noted that because education is not a fundamental right, “like [the] equality of the franchise,” strict scrutiny would not be triggered.^[84]

Papasan and Kadrmas acknowledged that the Court had not answered the extent to which, or if at all, the Constitution guaranteed a minimally adequate education,^[85] but these cases offer little help to those now seeking to find treasure in Rodriguez’s dicta. In fact, these cases create additional obstacles for those seeking to expand Rodriguez. Both cases identified education as an important institution, echoing Rodriguez, but still refused to define what constituted the necessary quantum of education.^[86] Read together, Plyler, Papasan, and Kadrmas reflect the Court’s consistent refusal to expand Rodriguez.

C. Recent Attempts to Reverse or Modify Rodriguez Repackage Previously Rejected Arguments and Have Little Likelihood of Providing Meaningful Relief

In this Part, we assess the two most recent cases seeking to revisit Rodriguez. Both are inventive but ignore the clear language from Rodriguez that rejected a link between a fundamental right to education, citizenship, and voting. That language is as follows:

Exercise of the franchise, it is contended, cannot be divorced from the educational foundation of the voter. The electoral process, if reality is to conform to the democratic ideal, depends on an informed electorate: a voter cannot cast his ballot intelligently unless his reading skills and thought processes have been adequately developed.

We need not dispute any of these propositions. The Court has long afforded zealous protection against unjustifiable governmental interference with the individual’s rights to speak and to vote. Yet we have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice. That these may be desirable goals of a system of freedom of expression and of a representative form of government is not to be doubted. These are indeed goals to be pursued by a people whose thoughts and beliefs are freed from governmental interference. But they are not values to be implemented by judicial intrusion into otherwise legitimate state activities.^[87]

This straightforward rejection of a core tenet in the new attempts to reverse Rodriguez created a huge hurdle for the plaintiffs. We discuss this and other roadblocks below.

1. A.C. v. Raimondo.

In November 2018, students and parents filed suit in the Federal District Court of Rhode Island^[88] arguing that the state failed to provide students with a meaningful opportunity to “obtain an education adequate to prepare them to be capable citizens,”^[89] suggesting the required quantum of education left open to definition and protection by Rodriguez.^[90] The Raimondo plaintiffs contend that the state failed to implement various strategies and “proven practices” that would allow students to ultimately become active citizens,^[91] citing numerous studies documenting the decline of civic engagement and a lack of civic awareness, which as a threat to democracy.^[92]

For relief, the plaintiffs request a declaration of a constitutional right that ensures students can act as citizens, who are able to effectively utilize the other guaranteed rights, including “an education that is adequate to prepare them to function productively as civic participants capable of voting, serving on a jury, understanding economic, social and political systems sufficiently to make informed choices, and to participate effectively in civic activities.”^[93]

Plaintiffs’ requested relief masks a request for the court to find a positive right. This legerdemain is disguised by using a double-negative. Specifically, they requested the court enjoin the state “from failing to adopt such laws, regulations[,] policies and practices as are necessary to ensure that the individual plaintiffs and the members of the plaintiff class are provided meaningful educational opportunities adequate to prepare them to be [effective and capable citizens] in a democratic society.”^[94] This may seem like grammatical hair-splitting, but courts have been less willing to require the state to provide affirmative constitutional rights.^[95]

More importantly, the Raimondo plaintiffs’ complaint cannot keep its story straight. Read narrowly, its argument and prayer for relief appears to center on the mechanics and minutia of education policy, contending that the constitutionally required informed citizenry needs only targeted adjustments, such as restoration of a robust civics curriculum.^[96] This narrow focus may ameliorate concerns a court may have about treading too far into educational policy, but it is questionable as to the extent such relief would address an underlying problem of civic engagement. It is hard to believe that simply providing more and better civic instruction, student government opportunities, and the like will transform civic participation, especially in districts where there is systematic disenfranchisement of voters as well as other pressing needs. Without attention to the more pressing social and political issues, the impact of civic education instruction will be minimal.

Even the narrow prayer for relief still raises thorny separation of powers and federalism issues.^[97] These include: What curriculum changes are needed? As a policy matter, are the gains produced by increased emphasis on civics off-set by the inevitable reduction in more discrete and better studied areas, such as math and reading, previously seen as essential under NCLB?^[98] And who should decide what type of curriculum makes for better citizens? The curriculum debates that led to the math and reading “wars” would certainly be expected to reemerge—and perhaps become even more animated—when debating what an appropriate civics education should look like.^[99]

On the other hand, the complaint can be read more broadly, requiring a federal judge to order whatever educational remedies are necessary to create “effective and capable citizens in a democratic society.” Such a broad mandate could require the type of radical transformation of schools and their funding specifically rejected in Rodriguez. Whether viewed narrowly or broadly, the complaint demands answers to questions federal courts traditionally have sought to avoid.

2. Gary B. v. Snyder.

In Gary B., the plaintiffs (students and parents in the Detroit Public Schools) take a different approach and attempt to define the elusive quantum. Like the plaintiffs in Raimondo they use a bit of chicanery by focusing on literacy in their complaint,^[100] contending that their schools’ failure to teach basic literacy instruction violated the Fourteenth Amendment’s Equal Protection and Due Process Clauses.^[101] Plaintiffs argued that without access to literacy instruction they are effectively prohibited from acting as capable citizens and fully participating in the political process. But their actual claims were much broader, and their adjudication turned out to be as complex as a Russian novel.^[102]

Based on the pleaded facts, the complaint made a compelling argument that the lack of literacy instruction is so deficient that the plaintiff children do not attend what can reasonably be described as a functioning school.^[103] The complaint painted a horrific picture of schools in Detroit in which students have few, if any, recent books, credentialed teachers, functioning buildings, or other essentials that make up a bona fide school,^[104] plausibly bringing them under the protection of Plyler v. Doe.^[105] The defendants filed a motion to dismiss, so, at the pleading stage, the alleged facts were deemed to be true.

The Plaintiffs’ main contention was that literacy is so closely linked to other constitutional rights integral to our democracy and civic well-being as to make literacy a fundamental right. As in Raimondo, the plaintiffs made both a narrower (quantum) claim and a sub-silentio broader claim that used literacy, broadly defined, as means to reverse Rodriguez and establish a federal right to education.^[106] While the district court sympathized with the deplorable school conditions alleged in the complaint^[107] and recognized the tight link between literacy and economic and civic productivity,^[108] it dismissed the complaint, relying on Rodriguez.^[109]

On appeal, however, a panel of the circuit court in a 2–1 decision reversed the district court and allowed the case to proceed to trial.^[110] The panel majority’s sixty-seven-page decision was a tour de force, setting out the long and complicated jurisprudence of Rodriguez and its progeny. The majority avoided focusing on the consistent refusal of the Supreme Court to breathe life into Plyler or Rodriguez, and instead emphasized the Court’s general statements touting the importance of education.

The majority fully recognized the judicial headwinds plaintiffs faced but used Plyler to craft an “equal protection” violation by viewing the Detroit students as similar to the noncitizen students denied education in Plyler, even though the plaintiffs represented a much larger and less discrete class.^[111] But the majority also seemed to import a Raimondo theory into its equal protection analysis writing: “Most significantly, every meaningful interaction between a citizen and the state is predicated on a minimum level of literacy, meaning that access to literacy is necessary to access our political process.”^[112]

While that observation is likely true, we respectfully contend that the most meaningful access to government—and to get the type of schools the plaintiffs seek—is best achieved through the ballot box.

The panel’s decisions, however, did not have much staying power and took several procedural twists and turns that, in the end, vacated the ruling. Almost immediately after the initial ruling, the Republican-controlled Michigan legislature sought an en banc hearing, claiming the decision represented a “breathtaking attack on federalism,” referencing its significant fiscal implications.^[113] Plaintiffs quickly reached a settlement with the Democratic governor, providing for additional $96 million in literacy funding.^[114] Days later, the Sixth Circuit granted en banc review that automatically vacated the panel ruling.^[115] Shortly thereafter, the Sixth Circuit reversed itself and dismissed the case as moot and the court did not disturb the settlement.^[116] But it would likely be the last such settlement for plaintiffs in the Sixth Circuit.

The Sixth Circuit likely did the plaintiffs a favor. Had the plaintiffs gone to trial, it is not all certain that the actual findings of fact would have matched their pleadings, and it is likely that the Sixth Circuit would have reversed a favorable ruling. In the end, in order to ensure that the students in Detroit had adequate literacy skills, a federal court would have required an order directing the state of Michigan to substantially change the state funding mechanism as well as supervise how any new funds are administered,^[117] creating the same tensions related to federalism and judicial oversight that troubled the Rodriguez Court. It is difficult imagining the current Supreme Court being more receptive to plaintiffs’ argument than the Sixth Circuit.^[118]

Plaintiffs hinted at a claim of racial discrimination but did not actively pursue it. Yet it is hard to imagine that Caucasian students would be subject to conditions pleaded in Gary B. A more effective way to deal with the educational failings of Detroit Public Schools would be to acknowledge the structural racism that lies at the heart of its “literacy” issues and recognize that tinkering with funding and programs will have limited success until those underlying issues are addressed head on.

In short, both Raimondo and Gary B. seek to use Rodriguez’s alluring dicta to navigate past Rodriguez’s dangerous legal and educational policy shoals. It may be that these plaintiffs are pursuing these court-based efforts as part of a larger strategy to call public attention to deplorable conditions and, conceivably, prompt political action. But this, too, is a questionable use of resources and a risky strategy, as we detail below.

III. Risky Business: Potential Dangers of Increased Federal Involvement Through Courts or Congress

Attempts to find a meaningful fundamental federal right to education are also dangerous. They ignore the perils of inviting the federal courts, Congress, and federal agencies into public education.^[119] None have been of much help to public education in the last two decades.

A. The Dangers of Empowering Federal Institutions to Dictate State and Local Educational Policy

Expanding the federal courts’ role in education through the establishment of a constitutional right carries substantial risks. First, it would invite policymakers who favor free-market solutions to frame a constitutional minimum in terms of “choice” options that would risk pushing students out of public schools and into thinly regulated charter and voucher schools, eroding both resources available to public schools and support for them. Pro-market advocates have signaled their intentions in this regard,^[120] and a line of Supreme Court opinions suggests they might succeed.^[121]

We recognize the appeal of policy solutions that argue only the free-market and choice can improve schools, especially in the direst areas. The state can shed its responsibility, even if the parents have few good choices, but this politically enticing option solves nothing. There is significant research that market-based solutions have not worked.^[122] Instead, it shows that, on average, public schools outperform privatized schools, when controlled for student demographics.^[123] There have been much heralded success stories; there also have been catastrophic failures, costing taxpayers and students hundreds of millions of dollars in lost tax revenues and instructional time.^[124] Worse still, there is the very real issue of whether nontraditional schools purchase their success at the expense of public schools.^[125] Finally, there is also the broader issue of whether the proliferation of market-based or choice schools destroys the very concept of public education by shifting control of schools away from taxpayers and government oversight to private entities.^[126] This process can allow racial and wealth-based discrimination to be reframed as a function of consumer choices.^[127]

Harvard Professor Martha Minow has warned about the dangers of unregulated “choice,”^[128] arguing that affording parents a “choice” through charter schools or vouchers not only poses significant risks to traditional public schools but also exacerbates segregation along race, class, and even gender.^[129] In the end, she argues that the choice model, unless closely regulated, can produce schools that are public only in the sense that there is no tuition, obscuring critical discussions about immigration, race, and a genuine debate over what it means to be an “American.”^[130]

Historians and others have documented the pernicious effect and the use of “choice” to evade desegregation, especially in the South.^[131] The concern is that federal courts appear predisposed to allow our schools to become even more fundamentally segregated as long as resegregation is cast in terms of parental and consumer choice. This will create even more fragmented and unequal schools.

B. Legislating a Fundamental Right to Education: Lessons from NCLB

Should the Supreme Court reinterpret Rodriguez, it might turn the matter over to Congress. At one time in history, school reform-minded advocates might have rejoiced that Congress would ensure that all children would be given a fair shot at a quality education, but the utter failure of NCLB (and others, we briefly discuss) should be a warning that federal government can also bring a heavy and misguided hand.^[132]

NCLB significantly altered the balance of educational policy-making power between states and the federal government.^[133] In brief, the Act, a reauthorization of the 1965 Elementary and Secondary Education Act, conditioned state receipt of federal education funds on a number of measures, most of which related to “accountability” in an effort to boost student outcomes, particularly of those students in specified subgroups.^[134] NCLB was built on the same—‍but discredited—model implemented in Texas.^[135]

NCLB required that states adopt certain conditions to receive federal Title I funds.^[136] These included minimum academic standards,^[137] including student testing in specific subject areas on an annual basis.^[138] NCLB mandated that, in all schools, all students within specific subgroups (children with disabilities, English language learners, poor students, and other minority groups)^[139] obtain proficiency on tested areas by 2014,^[140] a clearly utopian wish rather than an achievable goal. Additionally, NCLB imposed standards for teacher qualifications, demanding that every classroom be staffed by a “highly qualified” teacher with specific competencies in the areas of instruction^[141] and that districts and states ensure teachers obtain these qualifications.^[142] Schools and districts that failed to meet these demands faced an intensifying scale of punitive measures ranging from requiring private supplemental educational services to school closure.^[143]

Unfortunately, Congress did not want to pay the price tag even for modest improvements, much less for the proficiency demanded by NCLB, creating an underfunded mandate that severely burdened state and local school district budgets.^[144] It also created perverse incentives encouraging administrators to “game” the system by excluding poor-performing students or blatant cheating.^[145] NCLB also constricted curriculum offering by narrowly focusing on two disciplines—reading and math. Consequently, schools cut untested subject areas, like art, social studies,^[146] and science (and presumably civics). It also exacerbated the tensions inherent in our federalist system of government, especially as it relates to a complicated, intergovernmental policy area such as education.^[147] While NCLB may have not violated the Constitution’s Spending Clause,^[148] it reordered policy dominance in favor of the federal government, frustrating state and local education stakeholders^[149] because of its coercive nature.^[150]

The dangers of federal government involvement in education are not limited to NCLB but, as others have noted,^[151] reflect a consistent history. For example, The Race to the Top, the Obama administration’s modification of the NCLB, continued to force states and local school districts to amend education laws to adopt stricter standards that also ultimately proved ineffective and difficult to implement.^[152]

The Individuals with Disabilities Education Act (IDEA) demonstrates both benefits and problems of federal intervention. It forced many states to educate previously excluded students.^[153] Yet Congress’s consistent refusal to appropriate the mandated funds as well as some of its burdensome paperwork have created significant financial, administrative and educational pressures on state and local school districts.^[154] Because voucher and charter schools typically are not mandated to provide specific special education programs, traditional public schools have been placed at a competitive disadvantage.^[155]

The combined weight of the NCLB and other federal initiatives has had a devastating impact on the teacher workforce.^[156] Educators were consistently blamed but rarely consulted, and often were forced to assume much of the hidden costs of these federal initiatives. As a result, teacher morale is at an all-time low, creating a serious teacher shortage, as well as triggering labor unrest.^[157]

Those favoring a greater involvement might argue that the NCLB and other failed federal educational initiatives should not doom future, better designed programs, but the Authors remain skeptical. The actual and metaphorical distance between Congress and schools often produces solutions that don’t work in actual classrooms. There is also the recurring burden of unfunded federal mandates. Finally, federal intrusion does not equate to better schools and, in fact, allows for educational policy to be captured by those with the greatest political influence in Washington.^[158]

In short, the history of NCLB and the current Supreme Court’s orientation to endorse nonpublic, market-oriented solutions should be of grave concern to those seeking to reverse or revive Rodriguez. It should not be assumed that federal courts, with or without congressional or Department of Education participation, will produce better or more equal schools.^[159] In fact, given the current judicial and congressional politics, it is more likely that any federal mandate will weaken our public schools as institutions, making schools more unequal and diminishing, rather than strengthening, our democracy.

IV. Policy Choices and Access to the Ballot Box

In this Part, we develop our argument that the social goals of increased civic engagement and educational equality are better achieved through political institutions, such as state legislatures and local school boards, than federal courts. We first discuss the political science literature—known as “distributive political theory”—that has linked the impact of voting to educational equality and policy choices. In particular, we note the importance of the Voting Rights Act in promoting educational equality and increased civic engagement, especially in African-American communities. We then discuss two Supreme Court cases—Shelby v. Holder and Rucho v. Common Cause—that have blunted the impact of the Voting Rights Act, and the power of the individual vote, respectively. This Part sets the stage for the final Part of this Article where we discuss ways to mitigate the impact of these cases on the theory that a focus on voting rights cases is of greater return than present efforts to subvert Rodriguez.

A. Distributive Political Theory: The Policy Benefits of Voting

The right to vote is the most fundamental right in a republican democracy, but it has more than a foundational importance. It also determines how resources are distributed to various constituencies.^[160] Elected officials tend to constituencies that vote and, consequently, direct greater public resources to those constituencies.^[161] Political behavior, especially through voting, leads to policy change, particularly at the state and local level.^[162] As one political scientist noted what common sense suggests: “[P]oliticians have successfully shifted political rewards in line with political participation. Groups that participate at lower levels due to exclusionary practices or lack of resources receive comparatively worse services and treatment by elected officials who have incentives to reward higher voting groups.”^[163]

This is often referred to by political scientists as a distributive theory of politics.^[164] Thus, voter participation determines how public resources are spent at all levels of government, including distributing resources for education. This is particularly true in disadvantaged communities whose problems are underreported and thus more easily ignored. In making this argument, we do not claim that greater access to the ballot box will solve the many challenges to achieving greater educational opportunity, but it is a key necessary condition, and one that advocates for more effective and equal schools often overlook.

1. The Voting Rights Act Impact on Educational Resources and Policy Choices.

The Voting Rights Act of 1965 (VRA)^[165] played a pivotal role in providing underrepresented and disenfranchised groups the opportunity to leverage their votes into political and policy capital,^[166] including in the area of education. It may be one of the best examples of distributive political theory in practice. For our purposes, it demonstrates the power of voter rights as it relates to improving educational equality and increasing political engagement.

By way of background, the chief aim of the VRA was to eliminate barriers to voting discrimination, particularly in southern states, where there was a glaring history of deliberate exclusion of minority voters through the use of tests and poll taxes, notwithstanding constitutional amendments intended to prohibit this type of discrimination.^[167] The VRA provided the federal government with oversight into local election practices in areas with a history of discrimination, mainly in the South.^[168]

Federal protection is ensured through several key sections of the VRA. Section 2 prohibits discrimination in voting based on race^[169] and remains in force today.^[170] Section 4 provided a formula to identify particular jurisdictions (“covered jurisdictions”) that had used various voter tests (e.g., literacy tests) as a prerequisite to voting.^[171] Section 5 required federal approval of any proposed changes to voting procedures within these covered jurisdictions.^[172] Together, Sections 4 and 5 gave “teeth” to the Act. A covered jurisdiction, as determined by Section 4, could not make changes to voter procedure or qualifications without first receiving approval from the federal Department of Justice.

At the time of the VRA’s passage, civil rights leaders understood the centrality of voting to resource distribution and social policy reforms. Dr. Martin Luther King Jr. declared the right to vote “Civil Right No. 1.”^[173] In the New York Times he penned an op-ed that states as follows:

Voting is the foundation stone for political action. With it the Negro can eventually vote out of office public officials who bar the doorway to decent housing, public safety, jobs and decent integrated education. It is now obvious that the basic elements so vital to Negro advancement can only be achieved by seeking redress from government at local, state and federal levels. To do this the vote is essential . . . . Our vote would place in Congress true representatives of the people who would legislate for the Medicare, housing, schools and jobs required by all men of any color.^[174]

As predicted by distributive political theory, the VRA delivered as part of a key component of the civil rights movement, leading to improved public services at the local level as elected officials began to pay attention to new voting blocks.^[175] City services such as street paving, garbage collection, and access to recreation, library, and hospital facilities improved as black voters’ participation increased.^[176] Fire stations were relocated due to increased black enfranchisement.^[177] The VRA had a similar impact on political resources distribution coming from the federal level.^[178] The VRA “has been called one of the most effective pieces of civil rights legislation in U.S. history.”^[179]

The VRA also affected education spending and quality, with some political scientists linking these gains to increased voter participation under the VRA and educational quality.^[180] Areas populated with newly enfranchised African-American voters received not only increased resources, but evidence also showed that those resources were targeted to improve the quality of the education.^[181] Unfortunately, for a variety of reasons, the VRA, by itself, did not ensure that all schools received the necessary funds and related services to provide equal educational opportunities. A number of factors, including persistent racial segregation, conspired against school districts and communities serving poor and minority students, but the VRA was an essential first step. Weakening the VRA’s provisions will make an already challenging situation worse and will likely increase segregation.

The success of the VRA in delivering resources to newly enfranchised voters is not unique as a historical or political science matter. The Nineteenth Amendment, which granted women the right to vote, had similar dramatic effects, ushering a sweeping redirection of government resources to social programs intended to benefit the neediest of populations, especially children. Following state suffrage laws, spending on social programs and infrastructure (charities, hospitals, and corrections) rose by 24% and 36%, respectively,^[182] and spending also increased on education and public health programs geared to children.^[183]

The effect of voter rights protections cannot be gainsaid in the context of a comparison with efforts to achieve civic engagement and education reform through Rodriguez. To our understanding, there has not been a study demonstrating a similar impact of civics curriculum on engagement in political participation or education policy. Unfortunately, there have been renewed efforts to restrict voter rights, which we discuss below.

B. Recent Supreme Court Cases Impacting Voter Rights

Over two decades, the Supreme Court has issued numerous cases that shifted the political playing field by allowing states to restrict voting rights.^[184] We focus on two of the most significant cases that impacted political power: Shelby v. Holder (voting rights) and Roche v. Common Cause (partisan gerrymandering).

1. Shelby v. Holder.

In Shelby v. Holder, the Supreme Court gutted important portions of the VRA.^[185] Although the exact scale of Shelby’s impact is debated, there is no question that it allowed states and their political subdivisions to erect political barriers that made it more difficult for African Americans and other minorities to vote,^[186] thus diminishing their political influence at the local, state, and federal level.^[187]

At issue in Shelby was the constitutionality of provisions of the 1965 Voting Rights Act. The local government of Shelby County challenged the constitutionality of both Sections 4 (coverage formula) and 5 (federal oversight). In a 5­–4 majority opinion, the Court overturned lower court decisions and found for the County with respect to its Section 4 claims.^[188] The Court concluded that that coverage formula found in Section 4 was no longer justified because the targeted tests no longer existed and voter participation had increased.^[189]

The majority noted that the Tenth Amendment dictated that only under “exceptional conditions” could the federal government intervene in state electoral matters. At the time of enactment—when tests and other voting barriers kept African Americans’ registration low—federal interference was warranted, but the Court then concluded that “things have changed dramatically.”^[190] As a result, the Court concluded that Section 4’s “coverage formula” that determined “covered jurisdictions” was outdated because it relied on “decades old data” (voter registration and participation numbers from the 1960s and 1970s).

There was no question that the VRA had worked in eliminating voter tests and other barriers over time.^[191] In fact, voter registration and participation rose dramatically after voter tests were banned nationally as a matter of law.^[192] Given these improvements, the Court found that Section 4’s formula could no longer be justified.^[193] Despite striking down Section 4 and effectively removing federal oversight from jurisdictions that had a history of enacting voter suppression, Section 2 of the Act, which prohibits voter discrimination, remained in force.

Immediately following Shelby, numerous states and local political subdivisions raced to enact various voter suppression schemes. States engaged in efforts to suppress voter participation through grossly exaggerating claims of voter fraud.^[194] The efforts have included purging voter rolls,^[195] enacting cumbersome voter identification requirements,^[196] and shifting polling locations, among others. States could quickly impose these barriers because Shelby removed the preclearance requirement. Unfortunately, poor urban districts would receive a second blow because of the Court upholding partisan gerrymandering as we discuss below.

2. Rucho v. Common Cause.

Not long after its Shelby decision, the Supreme Court in Rucho v. Common Cause tilted the playing field even more.^[197] After dancing around the issue in several prior cases, the Supreme Court, in another 5–4 decision, upheld partisan gerrymandering as constitutional.^[198] Partisan gerrymandering involves redrawing legislative districts in order to distribute voters into legislative districts that favor the interests of one political party thereby diluting the votes of members of a disfavored political party.^[199]

In Rucho, plaintiffs from North Carolina challenged the redistricting maps drawn by the Republican-controlled legislature. Separately, plaintiffs in Maryland challenged the maps drawn by the Democratic legislature and Governor.^[200] As the facts in those cases demonstrated, the carefully calibrated line-drawing produced dramatic shifts in political outcomes.

The district courts found in favor of the plaintiffs on a number of respective constitutional claims.^[201] The Supreme Court consolidated the cases and reversed. The majority opinion concluded that the question of partisan gerrymandering was not justiciable because it was a political question. Chief Justice Roberts, writing for the Court, noted:

We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions. “[J]udicial action must be governed by standard, by rule,” and must be “principled, rational, and based upon reasoned distinctions” found in the Constitution or laws. Judicial review of partisan gerrymandering does not meet those basic requirements.^[202]

In upholding partisan gerrymandering, the Court noted that racial gerrymandering, as had occurred in North Carolina, was impermissible.^[203] The Court expressed its seeming dismay at the hyper-partisan districts, but claimed it was powerless to address what it considered political questions.^[204]

Partisan gerrymandering is designed to help a particular political party and advance their agenda. It is most pronounced in states with single-party rule. To accomplish this, legislative boundaries have been redrawn to give power to those communities populated by the favored party. Since the last census, boundaries have been radically redrawn to favor Republican interests in several states.^[205] Although gerrymandering is aimed at political control, it can have significant educational consequences. Since Democrats and minorities tend to live in urban areas, those communities have lost political power.^[206] In practical terms, this means that African-American communities and their school districts are now at a greater disadvantage in competing for state and federal resources as well as for specific policies to address their needs. Although politicians often talk about reducing the “achievement gap,” distributive political theory suggests that only modest, if any, improvements will occur until African-American communities are given a fairer ballot box.

The combined weight of these cases has also worked to limit political participation. In many voting districts, the outcome is known before the first ballot is cast. We agree that Raimondo identified a serious problem of a decline in civic engagement, but a better civics curriculum will not ensure greater citizen involvement given the current political obstacles. Creating access to the ballot box is the necessary first step for creating both more equal schools and greater political participation. We turn to that discussion in the next Part.

V. Avenues to Achieving Greater Educational Equity by Circumventing Shelby and Rucho and Returning Power to Voters in Distressed School Districts

In this Part we offer several viable avenues to challenge legislative actions that dilute the vote of urban and minority voters. We do not intend to provide an exhaustive road map. We again leave that to voting rights experts. Our goal is to show that success is possible; attacking these attempts to limit or dilute the vote is a far better strategic choice than trying to reverse Rodriguez. In addition, by focusing on barriers to voting, we hope to convince school reform advocates to see education not primarily as an academic matter but rather as an organic part of the political process.

On the surface, Shelby and Rucho appear to offer precedent as daunting as Rodriguez, but in both of the former cases, the law is less settled and the Court itself suggested paths to circumvent its holdings. If done strategically, these paths create real opportunities to provide more political power to voters residing in many of our nation’s most troubled school districts, giving them the political leverage necessary to improve their schools. These avenues include state constitutions and state and federal legislative action, as well as targeted claims under the United States Constitution. All offer a greater reward, with less risk, than efforts to overturn Rodriguez.

A. State Constitutional Protections

State constitutions typically provide explicit and positive voting rights, unlike the U.S. Constitution,^[207] including references that set the basic requirements of voter eligibility.^[208] Additionally, the majority of state constitutions, twenty-six in all, contain specific language that can be interpreted to overturn a wide range of voter suppression tactics. For instance, several state constitutions provide for guarantees of free and equal elections.^[209] Fifteen state constitutions afford protections of the right to vote through negative rights.^[210]

There is a strong argument that state constitutional interpretation of voting rights should exceed federal protections,^[211] and the Supreme Court has expressed a deference to states in determining voter eligibility questions,^[212] allowing states to define the ceiling.^[213] As a matter of constitutional history, it appears that one reason the Constitution did not include an explicit protection for the right to vote was that the states already had included voting protections,^[214] making federal protection seem redundant. Given the centrality of states to voting, and centrality of voting to our democratic institutions, litigants seeking to expand voting rights or challenge legislative barriers have substantial legal and historical precedent from which to draw, especially those that come into favor after Shelby.

In fact, the Court’s Rucho decision (partisan gerrymandering) appears to invite states to address the issue through state law:

Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution. The dissent wonders why we can’t do the same. The answer is that there is no “Fair Districts Amendment” to the Federal Constitution. Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.^[215]

We recognize limitations in our emphasis on state-focused litigation on voter rights. Focusing on state constitutions to enforce voter rights will invariably produce uneven results among the fifty states. Litigants must think strategically and consider relevant legal and political factors. Bringing a lawsuit to an unreceptive court may lead to the same negative risk-reward assessment as with relitigating Rodriguez; however, state court litigation also reduces risks because any loss will be limited to a particular jurisdiction.

The key is that some of the state cases attacking barriers to voting likely will succeed and each victory will have a ripple effect creating the potential for a wave of successful cases, much like what happened in school finance litigation. In addition, court challenges may spur legislative action. The lack of a quick universal fix should not dissuade efforts to use state constitutions to expand voting rights when circumstances allow. Quick fixes rarely work.

B. State Legislative Action

The most efficient way to remove voting barriers imposed by state legislatures is to repeal them. This is easier said than done, but it is happening. Popular opinion, something to which elected officials pay close attention, appears to favor taking politics out of the voting process. Contrary to the recent legislative push for more restrictive voting requirements, one national poll found that 64% of Americans favor “same-day” voting registration, including allowing voters to register to vote on election day.^[216] The number of states employing some form of voter commissions for redistricting to attempt to remove partisan politics is growing.^[217] We leave it to advocates and political experts to determine the best way to translate popular opinion into legislation, but those seeking better and more equal educational opportunity should recognize the importance of creating a fairer political field to achieve their educational goals.

C. Congressional Action to Amend the Voting Rights Act

Shelby v. Holder did not foreclose Congress from addressing the issues the Court found problematic in Shelby. The central holding of Shelby was that Section 4 had not been sufficiently updated to justify federal intervention into state election law matters. To the majority, this failure to justify intervention in some states but not others offended principles of federalism, making that section unconstitutional. Following this logic, Congress could amend Section 4, effectively giving teeth to the Act once again either by updating the supporting data or by including all states.

In addition, Shelby did not overturn the Voting Rights Act. Its central purpose—to provide relief against voter discrimination— remains. So, as one scholar has noted, not all is lost with respect to rearming the VRA.^[218] Section 2, for example, continues to allow plaintiffs to litigate discrimination in election and voting procedures.^[219] Others have argued that section 3(c) of the VRA may be useful going forward. That section, known as the “bail-in” or “pocket trigger” provision, authorizes a court presiding over a successful voting rights suit to impose preclearance mechanisms. In such a case, court approval would be needed before proposed voting changes can go into effect.^[220] Despite Shelby, the VRA remains good law in the sense that it still prohibits discrimination based on race in voting, and some litigants have pursued remedies through the VRA with some success,^[221] but the chances for a reinvigorated VRA have increased.

The first bill introduced to the U.S. House of Representatives following the 2016 elections sought to revise the Voting Rights Act.^[222] Although the chances of the bill becoming law immediately are not good, given Republican control of the Senate and the Presidency, this may not always be the case. Those chances will increase if, as we have argued, there are successful efforts to protect the vote, using state constitutions, or remedial legislative or administrative actions.

The very recent and unfortunate novel coronavirus pandemic may offer Congress some opportunity to intervene in a manner to make elections fairer. Article I, Section 4 of the United States Constitution gives the states authority to set “the time, places and manner” of holding elections, but it allows Congress to preempt the states and notes that: “the Congress may at any time by law make or alter such regulations.”^[223]

Depending on the severity of the current epidemic, Congress may be forced to fundamentally alter how elections are conducted under their Article I powers. If so, Congress may insist on adopting new procedures for voting that blunt some of the new legislative barriers. With a divided power in Washington, this issue will likely become contentious, but each side will have leverage. If those seeking a more open ballot box wisely use their leverage, it is likely that more resources will flow to many of our nation’s most needy schools.

D. Federal Constitutional Protections to the Right to Vote

Although the Constitution does not provide a specific affirmative protection for the right to vote, it can be inferred through a series of protections (negative rights) under the Constitution.^[224] These indirect protections are enumerated seven times in various sections.^[225] In addition, the Court has recognized the right to vote in the Equal Protection Clause^[226] and linked that right to the “essence of a democratic society.”^[227] At one point the Court seemed inclined to more vigorously protect the right to vote,^[228] but it has backtracked.^[229] Nevertheless, undue restrictions can still be overturned.

For a successful federal challenge to state restrictions on voter rights to succeed, it must be demonstrated that the state law creates a “severe” burden on voters.^[230] If so, the Court will apply its strict scrutiny review.^[231] A lesser burden warrants the lesser standard of review—intermediate scrutiny.^[232] As a result, a state can impose some obstacles to an individual’s right, so long as they are not “severe.”^[233] Because of the current law, plaintiffs seeking to challenge state impediments to voting based on a federal constitutional theory face uphill battles, making the federal right to vote “underenforced.”^[234] Nevertheless, some restrictions continue to be overturned.^[235] Framing the issue and the strength of expert testimony will be essential to a successful challenge.

One undisturbed method to challenge voter suppression is to prove racial gerrymandering, as discussed in Rucho.^[236]Allegations of racial discrimination in gerrymandering require proving “intent” that can make a case of racially gerrymandering more difficult to prove, especially since a purely political motive will suffice. Because of the current state of federal law, there may be better alternatives, but if racial intent can be established, federal relief is available.

We have shown that there are viable avenues to dismantle a significant number of voting barriers.^[237] As these barriers are reduced, political power will return to previously politically discounted voting blocs, and with this power, will come the political leverage to create better and more equal schools.^[238] Reversing Rodriguez and establishing a federal right to education may seem more enticing but it is likely to prove a poor strategic choice.

VI. Conclusion

Education law scholars instinctively look to federal courts to solve education problems, and there are situations where federal courts can and should play a helpful role. Nevertheless, federal courts have their limitations, especially as it relates to predominantly state and local policy matters, like education.^[239] Indeed, in this domain, the political context—for better or worse—determines resource allocation and the interrelated social policies that shape education. For this reason, both scholars and advocates should focus more on the political process, particularly upon protecting voter rights. This approach has a far better chance to ensure greater and more enduring benefits to disadvantaged schools than attempting to reverse Rodriguez or secure other quick fixes that rely on federal courts or Congress. In the long run, reforming the political process will produce the types of schools, public policies, and civic engagement that our children need and our democracy requires.

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1. V.O. Key, Jr., Southern Politics in State and Nation 527 (1949).

2. Stacy Teicher Khadaroo, Rhode Island Lawsuit: Students Sue for the Right to Learn Civics, Christian Sci. Monitor (Dec. 12, 2019), https://www.csmonitor.com/USA/Education/2019/1212/Rhode-Island-lawsuit-Students-sue-for-the-right-to-learn-civics [https://perma.cc/6CTL-ERJF].

3. Class Action Complaint at 2–3, A.C. v. Raimondo, No. 1:18-cv-00645 (D.R.I. Nov. 28, 2018) (contending that the Constitution guarantees a minimum education that would give students the opportunities necessary to be engaged citizens). This Article discusses another case filed in a similar vein seeking a constitutional right to literacy: Gary B. v. Snyder, 329 F. Supp. 3d 344, 354 (E.D. Mich. 2018), aff’d in part, rev’d in part and remanded sub nom. Gary B. v. Whitmer, 957 F.3d 616 (6th Cir. 2020), reh’g en banc granted, opinion vacated, 958 F.3d 1216 (6th Cir. 2020); see also infra Section II.C.2.

4. Linda Borg, R.I. Sued Over Lack of Civics Education in Schools, Providence J. (Dec. 5, 2019, 10:21 PM), https://www.providencejournal.com/news/20191205/ri-sued-over-lack-of-civics-education-in-schools [https://perma.cc/NW8W-2WWS].

5. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).

6. See, e.g., Justin Driver, The Schoolhouse Gate: Public Education, The Supreme Court, and the Battle For the American Mind 322–30 (2018) (tracing the Rodriguez decision and noting its judicial and political dimensions that continue to be debated today).

7. Rodriguez, 411 U.S. at 2–6. Three justices found that the Texas finance system failed to satisfy even the minimal rational basis standard. Id. at 63–65 (White, J., joined by Douglas & Brennan, JJ., dissenting).

8. See id. at 21–25, 29–38 (majority opinion).

9. See Driver, supra note 6, at 327 (commenting that the Rodriguez decision closed federal courts to funding challenges, but opened up avenues of litigation in state courts under state constitutional provisions with explicit references to education). The Rodriguez decision underscored the local and state nature of public education which also limited federal court oversight. Rodriguez, 411 U.S. at 40.

10. Driver, supra note 6, at 327; see also, e.g., Rose v. Council for Better Educ., 790 S.W.2d 186, 189–90 (Ky. 1989) (holding that students in Kentucky had a right to an adequate education under that state’s constitution). Since Rose, almost all states have had claims to define an adequate education arising under respective state constitutions. See Julie K. Underwood, School Finance Adequacy as Vertical Equity, 28 U. Mich. J.L. Reform 493, 497–501 (1995) (analyzing and categorizing the various claims asserting an educational right under state constitutions). Those claims continue today. See, e.g., William Penn Sch. Dist. v. Pa. Dep’t of Educ., 170 A.3d 414, 417–18 (Pa. 2017).

11. In Greek mythology, the Siren is a half-bird, half-woman creature that uses their enticing songs to lure sailors to the rocky shores and their subsequent demise. Siren, Encyclopaedia Britannica, https://www.britannica.com/topic/Siren-Greek-mythology [https://perma.cc/X8KH-3FCQ] (last visited Sept. 18, 2020).

12. See, e.g., Stuart Biegel, Reassessing the Applicability of Fundamental Rights Analysis: The Fourteenth Amendment and the Shaping of Educational Policy After Kadrmas v. Dickinson Public Schools, 74 Cornell L. Rev. 1078, 1079–84 (1989) (citing Brown v. Board of Education as reflecting the Supreme Court’s emerging view that the Fourteenth Amendment could play an important role in enabling citizens to achieve maximum benefit from public education); Gershon M. Ratner, A New Legal Duty for Urban Public Schools: Effective Education in Basic Skills, 63 Tex. L. Rev. 777, 788–93 (1985) (noting that the interests of society are too great to maintain the status quo in public education).

13. See, e.g., Derek W. Black, The Fundamental Right to Education, 94 Notre Dame L. Rev. 1059, 1078–84 (2019) (claiming to find a right to education through historical evidence); Goodwin Liu, Education, Equality, and National Citizenship, 116 Yale L.J. 330, 370–74 (2006) (stopping short of finding a constitutional right to education, but arguing that the Constitution requires congressional action to ensure equal educational opportunity).

14. Plyler v. Doe, 457 U.S. 202, 215–21 (1982) (creating a special degree of scrutiny for assessing a state statute that denied access to education for children of undocumented immigrants for equal protection review, but acknowledging that education was not a fundamental right); Papasan v. Allain, 478 U.S. 265, 285–88 (1986) (addressing the issue of proceeds for sale of land related to public education, but acknowledging Rodriguez’s holding on fundamental rights remained good law); Kadrmas v. Dickinson, 487 U.S. 450, 458–59 (1988) (upholding a transportation fee and noting that Rodriguez was still good law, but did not apply to the case at hand).

15. See Gary B. v. Snyder, 329 F. Supp. 3d 344, 354 (E.D. Mich. 2018), aff’d in part, rev’d in part and remanded sub nom. Gary B. v. Whitmer, 957 F.3d 616 (6th Cir. 2020), reh’g en banc granted, opinion vacated, 958 F.3d 1216 (6th Cir. 2020); Class Action Complaint, A.C. v. Raimando, supra note 3.

16. Rodriguez left open the question of whether some level or quantum of education was guaranteed under the constitution. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 36–37 (1973) (“Even if we conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provide an education that falls short.”).

17. These arguments are also premised on what we believe is a mistaken faith in federal courts formed in a different era. See, e.g., Burt Neuborne, The Myth of Parity, 90 Harv. L. Rev. 1105 (1977) (arguing, generally, that federal courts provide a more favorable forum for marginalized groups to seek enforcement of constitutional rights). The federal courts—and the Supreme Court, in particular—have taken on an increasingly conservative bent, one less receptive to expanding or strictly enforcing positive rights under the constitution. See, e.g., Priyanka Boghani, How McConnell’s Bid to Reshape the Federal Judiciary Extends Beyond the Supreme Court, PBS (Oct. 16, 2020), https://www.pbs.org/wgbh/frontline/article/how-mcconnell-and-the-senate-helped-trump-set-records-in-appointing-judges/ [https://perma.cc/9PXQ-KDX4] (documenting Senate Majority Leader Mitch McConnell’s strategy to transform the federal courts by affirming conservative nominees).

18. Rodriguez specifically rejected virtually identical arguments*.* Indeed, the Court acknowledged the importance of education to vote and engage as citizens but stopped short of concluding that this rose to a constitutional protection or affirmative right. Rodriguez, 411 U.S. at 35–38.

19. See, e.g., Martha Minow, Confronting the Seduction of Choice: Law, Education, and American Pluralism, 120 Yale L.J. 814, 833–35 (2011) (outlining the dangers and risks associated with choice if not carefully managed). Despite recent criticisms of public education, the system of U.S. public schools has been upheld as a crown jewel and a recognition that all children deserve educational opportunity, notwithstanding socioeconomic differences. Adlai Stevenson once remarked that “[t]he free common school system is the most American thing about America.” Driver, supra note 6, at 7, 321–26.

20. The evidence is mounting that continued privatization of the public good of education makes for bad policy and that the application of free-market ideas in the context of public education has reached a point of diminishing returns. For example, charter schools have been at the center of scams at the expense of taxpayers and the true extent of that cost is only now being understood. Peter Greene, Charter School Fraud and Waste Worse than We Thought, Forbes (Dec. 10, 2019, 6:00 AM), https://www.forbes.com/sites/petergreene/2019/12/10/new-report-charter-fraud-and-waste-worse-than-we-thought/#1aaf9c047a22 [https://perma.cc/Y8EV-UB4R].

21. The Supreme Court has upheld the use of public money for vouchers to private, religious schools. Zelman v. Simmons Harris, 536 U.S. 639, 653–55 (2000) (upholding Ohio voucher program that permitted use of public funds for parochial education). The Supreme Court has also allowed tax credits to be applied against expenses for private education. Mueller v. Allen, 463 U.S. 388, 395–402 (1983) (upholding state tax credit that could be applied against expenses incurred for private, parochial schools); see also Trinity Lutheran Church v. Comer, 137 S. Ct. 2012, 2019–21 (2017) (finding that exclusion of churches from an otherwise neutral and secular aid program violates the First Amendment’s guarantee of free exercise of religion).

22. Christian Barnard, A Constitutional Right to Education Would Be a Win for School Choice, Hill (Oct. 28, 2018, 3:00 PM), https://thehill.com/opinion/education/412362-a-constitutional-right-to-education-would-be-a-win-for-school-choice [https://perma.cc/LCR9-P85A]; Am. Enter. Inst., Education Policy Debate: A Federal Right to Education, YouTube (Jan. 24, 2019), https://www.youtube.com/watch?v=ypODqa2ER_E [https://perma.cc/UZ67-4DVM] (noting at 26:54 that the constitutional right argument might be best applicable to increase charter schools or other similar mechanisms that are outside of typical public education).

23. See infra Section III.B.

24. We draw heavily from a comparative institutional analysis. See Neil K. Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy 5 (1994) (writing that thorny questions of law and policy present questions of institutional choice among highly imperfect alternatives and determining a choice of institution must assess the relative strengths and weaknesses of the constitutions, courts, political process, or markets). On the other hand, an analysis that examines a policy question through one institution, such as the courts, is insufficient. They rely on a court-based solution to social change in education and assume that courts are frictionless institutions, or almost perfect. Cf. R.H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 2 (1960). We respectfully suggest that advocates have only engaged in single institutional analysis, assuming that federal courts have the capacity to achieve the remedies sought.

25. To be clear this Article does not contend that Rodriguez was correctly decided, although we do believe that implementation would have been challenging. Instead, it contends that Rodriguez has been decided and it’s time to move on. What is needed is a new, multi-faceted approach that focuses on the underlying structural political barriers that maintain educational inequality.

26. In fact, we take issue with the misleading “silver bullet arguments” that suggest court orders will lead to social change or that any quick fix is possible.

27. Historically, the battle over the franchise has long been recognized as a key to unlocking other rights and equality. See, e.g., David W. Blight, Frederick Douglass: Prophet of Freedom 442 (2018) (quoting Frederick Douglass on voting as “keystone to the arch of human liberty”). Today, political leaders continue to recognize this and underscore the important role of government in securing voter rights as a means to addressing inequality and systemic racisms. For example, in one of his first major political speeches after leaving office, former President Obama commented in stark terms about the relationship between voting and policy as follows:

    You’ve got to vote. When you vote, you’ve got the power to make it easier to afford college, and harder to shoot up a school. When you vote, you’ve got the power to make sure a family keeps its health insurance; you could save somebody’s life. When you vote, you’ve got the power to make sure white nationalists don’t feel emboldened to march with their hoods off or their hoods on in Charlottesville in the middle of the day.

    See Barack Obama: You Need to Vote Because Our Democracy Depends on It, Guardian (Sept. 8, 2018), https://www.theguardian.com/commentisfree/2018/sep/08/barack-obama-you-need-to-vote-because-our-democracy-depends-on-it/ [https://perma.cc/ZRY2-HN7H].

28. See, e.g., David Tyack & Larry Cuban, Tinkering Toward Utopia 1 (2003) (documenting the history of education reform, noting that education change occurs on an incremental level, as a general rule, and that promises of sweeping change rarely deliver absent larger social change). The influence of money, for example, in the political process will continue to skew who is elected and policy priorities, even if the purest form of voter protection could be achieved. We suggest that voting rights are the most logical place to start with respect to addressing inequality, but we recognize that there are substantial obstacles that dilute an individual’s voting power. See, e.g., Citizens United v. FEC, 558 U.S. 310, 336–41 (2010) (ruling, in 5–4 decision, that limits on corporate spending in political campaigns were unconstitutional).

29. See Komesar, supra note 24.

30. State courts have been receptive to arguments involving resource questions, like the issues presented in Rodriguez. See Michael A. Rebell, Courts and Kids: Pursuing Educational Equity Through the State Courts 16–17 (2009) (documenting the relative number of victories in state courts for plaintiffs seeking greater financial resource and change to school finance formulas).

31. The virus has exacerbated the current barriers to the ballot box as citizens now must weigh health risks when going to polls or serving as election officials. See, e.g., Emily Bazelon, Will Americans Lose Their Right to Vote in the Pandemic?, N.Y. Times Mag. (Nov. 4, 2020, 10:44 AM), https://www.nytimes.com/2020/05/05/magazine/voting-by-mail-2020-covid.html [https://perma.cc/Z8Q5-J27M].

32. COVID-19 has disproportionately impacted the economic and political power of poorer individuals and workers, especially those in communities of color who are already marginalized by the political system. See The Disproportionate Impact of COVID-19 on Communities of Color, Am. Hosp. Ass’n. (May 27, 2020), https://www.aha.org/testimony/2020-05-27-testimony-disproportionate-impact-covid-19-communities-color [https://perma.cc/J9P6-AMXE]. The virus has also robbed the coffers of school districts and local and state government. Mary Williams Walsh, As Virus Ravages Budgets, States Cut and Borrow for Balance, N.Y. Times (May 14, 2020), https://www.nytimes.com/2020/05/14/business/virus-state-budgets.html [https://perma.cc/R42R-ATPR]. Under these conditions, it is even more difficult and risky to impose new federal mandates on schools.

33. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 4–6 (1973).

34. Id. at 17.

35. Id. at 9–11.

36. Id. at 11–13.

37. Id. at 28–29.

38. Id. at 29.

39. Id. at 6.

40. Id. at 2–3, 6.

41. Id. at 19.

42. Id. at 20–25.

43. Id. at 25–26.

44. Id. at 55.

45. Id. at 6.

46. Id. at 35–37.

47. Id. at 30; see also, e.g., Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (“The American people have always regarded education and [the] acquisition of knowledge as matters of supreme importance . . . .”); Abington Sch. Dist. v. Schempp, 374 U.S. 203, 230 (1963) (Brennan, J., concurring) (“Americans regard the public schools as a most vital civic institution for the preservation of a democratic system of government.”); Wisconsin v. Yoder, 406 U.S. 205, 221 (1972) (“[S]ome degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.”). In cases that followed Rodriguez, the Court continued this emphasis. See, e.g., Ambach v. Norwick, 441 U.S. 68, 76 (1979) (highlighting public education as a means to transmit the values of society); Plyler v. Doe, 457 U.S. 202, 221 (1982) (recognizing that education is not “merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation”). In Plyler, however, the court did apply an intermediate standard of review in its Equal Protection Clause analysis of Texas’s laws that prohibited state funds being expended for the public education of children of illegal immigrants. Id. at 230. Importantly, before and since Rodriguez, the Court has declined to find education as a fundamental right under the substantive Due Process Clause of the Fourteenth Amendment. Id. at 223. But see id. at 230 (Marshall, J., concurring) (reiterating his argument that education is a fundamental right).

48. Rodriguez, 411 U.S. at 29 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)).

49. Id. at 30 (writing that the “respect for the vital role of education in a free society[] may be found in numerous opinions of Justices of this Court” both before and after Brown).

50. As part of this argument, plaintiffs argued that education was so closely connected to other explicit rights in the Constitution that, by extension, it was fundamental. The Court did not adopt this reasoning. Id. at 35 (“Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected . . . . [T]he undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State’s social and economic legislation.”).

51. Id. at 33–34.

52. Id. at 32–33.

53. Id. at 31.

54. Id. at 44.

55. Id. at 103, 111 (Marshall, J., dissenting) (“Only if we closely protect the related interests from state discrimination do we ultimately ensure the integrity of the constitutional guarantee itself.”).

56. Id. at 111 (“Today, education is perhaps the most important function of state and local governments . . . . It is the very foundation of good citizenship.” (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954))).

57. Id. at 111–12 (“[P]roviding public schools ranks at the very apex of the function of a State . . . . [S]ome degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system . . . .” (quoting Wisconsin v. Yoder, 406 U.S. 205, 213, 221 (1972))).

58. Id. at 112–15. Interestingly, Justice Marshall’s dissent, like many seeking to overturn Rodriguez today, overlooks the impact of voter suppression and dilution efforts on political participation although Justice Marshall voiced a reluctance to leave the question of educational opportunity to the “vagaries of the political process.” Id. at 71.

59. Id. at 130. While there is much involved with respect to local education decisions, there are perhaps none more important than developing a budget and seeking taxpayer approval.

60. Id. at 70.

61. Id. at 67–68 (White, J., dissenting).

62. Id. at 36–37 (majority opinion) (emphasis added).

63. See, e.g., Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735, 757 (2018) (noting that the dicta from Rodriguez is “thin” and “consist[s] primarily of laudatory statements” unsuitable for persuading a court to discover an implicit right in the Constitution).

64. Rodriguez, 411 U.S. at 14–15, 58.

65. See infra Parts IV–V.

66. Plyler v. Doe, 457 U.S. 202, 203, 223 (1982).

67. Id. at 205.

68. Id.

69. The Court adopted an intermediate standard of review under its equal protection analysis to strike down the Texas statute. Id. at 217–18. That standard classified children in a quasi-suspect group for purposes of equal protection. Id. Depriving a particular group of children (in this case, the children of illegal immigrants) was particularly offensive to concepts of equal protection. Id. at 219–22 (“[D]enial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit.”).

70. Id. at 239 (Powell, J., concurring).

71. Id. at 235 (Blackmun, J., concurring). The Court also reviewed certain arguments that linked a fundamental right to the adoption of the Fourteenth Amendment—an argument now being urged in academic circles—to suggest that a historical analysis supports an originalists interpretation to finding a right. See, e.g., Brief Amici Curiae of the National Education Ass’n and the League of United Latin American Citizens at 6, Plyler v. Doe, 457 U.S. 202 (1981) (Nos. 80-1538 and 80-1934) (arguing that the adoption of the congressional history associated in the aftermath of the adoption of the Equal Protection Clause confirmed that access to basic education was a fundamental right protected by the Equal Protection Clause).

72. Plyler, 457 U.S. at 221–22. Interestingly, four dissenters agreed with Texas in that improperly documented children could be denied the right to attend a public school at all. Id. at 242 (Burger, J., dissenting).

73. Id. at 223; see also Papasan v. Allain, 478 U.S. 265, 285 (1986) (“The [Plyler] Court did not, however, measurably change the approach articulated in Rodriguez. It reiterated that education is not a fundamental right . . . .”).

74. Papasan, 478 U.S. at 287 (noting that Rodriguez was inapplicable).

75. Id. at 296–97.

76. Id. at 289.

77. Id. at 288–89. But see id. at 301 n.6 (Powell, J., dissenting) (arguing that Rodriguez simply provided “another reason” for dismissing the case).

78. Id. at 285 (majority opinion).

79. Kadrmas v. Dickinson, 487 U.S. 450, 457–58 (1988). But see id. at 467–68 (Marshall, J., dissenting) (suggesting that the statute at issue unconstitutionally discriminated based on wealth).

80. Id. at 458 (majority opinion).

81. Id. at 450, 458.

82. Id. at 458.

83. Id. at 451.

84. Id. at 458.

85. Papasan v. Allain, 478 U.S. 265, 284 (1986); Kadrmas, 487 U.S. at 458.

86. Papasan, 478 U.S. at 284–86; Kadrmas, 487 U.S. at 458.

87. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35–36 (1973) (emphasis added).

88. Class Action Complaint, A.C. v. Raimondo, supra note 3, at 1.

89. Id. at 2.

90. Id.

91. Id. at 5–6.

92. Id. at 11–14.

93. Id. at 3–4.

94. Id. at 45–46.

95. See, e.g., DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989) (noting that the Due Process Clause is phrased as a limitation on the state’s power to act).

96. See Class Action Complaint, A.C. v. Raimondo, supra note 3, at 54 (suggesting that the lack of civics engagement can be traced to a reduction in classes devoted to civics education, per se).

97. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 44 (1973) (“Questions of federalism are always inherent in the process of determining whether a State’s laws are to be accorded the traditional presumption of constitutionality . . . .”).

98. See, e.g., Dana Goldstein, ‘It Just Isn’t Working’: PISA Test Scores Cast Doubt on U.S. Education Efforts, N.Y. Times (Dec. 5, 2019), https://www.nytimes.com/2019/12/03/us/us-students-international-test-scores.html [https://perma.cc/Q2AC-QEPN] (documenting little change in standardized test scores despite large scale efforts to change education).

99. It is worth noting that teaching certain curriculum ideas that relate to individual rights and constitutional interpretation of those rights, themes that would presumably be part of any civics course, have been hotly contested. See, e.g., Parker v. Hurley, 514 F.3d 87, 90–91, 94 (1st Cir. 2008) (rejecting parents’ argument that teaching of tolerance through a curriculum that cited same-sex marriage as an example violated constitutional rights of parents to raise their children).

100. Gary B. v. Snyder, 329 F. Supp. 3d 344, 348 (E.D. Mich. 2018), aff’d in part, rev’d in part and remanded sub nom. Gary B. v. Whitmer, 957 F.3d 616 (6th Cir. 2020), reh’g en banc granted, opinion vacated, 958 F.3d 1216 (6th Cir. 2020); Class Action Complaint, A.C. v. Raimondo, supra note 3, at 25.

101. Gary B., 329 F. Supp. 3d at 348.

102. Id. at 362.

103. In addition, the local control argument that was persuasive in Rodriguez is undercut because the state of Michigan had assumed almost total control of the Detroit Public Schools for approximately twenty years. Id. at 348–49, 354. From a procedural point, the facts of split control complicate the plaintiffs’ argument that the State is at fault for any injury and the State has argued that they are improper parties to the suit. Id. at 349 (discussing the issue of whether the plaintiffs had named the proper defendants).

104. Id. at 355.

105. Plyler contested the state statute that resulted in denial of access to public education. Plyler v. Doe, 457 U.S. 202, 205–06 (1982). In Plyler, the Court noted that children were a quasi-suspect class and the state statute that denied the students access to a public education was unconstitutional. Id. at 219, 230.

106. See Class Action Complaint at 1–5, 128–29, Gary B. v. Snyder, 313 F. Supp. 3d 852 (E.D. Mich. 2016) (No. 16-cv-13292) (requesting a prayer for relief that would require the state to institute fundamental realtering change to the nature and type of education delivered to address any underlying issue of a right to literacy).

107. Gary B., 313 F. Supp. 3d at 875 (writing that the conditions at the plaintiffs’ schools are “nothing short of devastating”).

108. Id. at 873.

109. It also dismissed the equal protection claim because the students failed to identify a class of similarly situated plaintiffs that were being treated differently, noting that the Detroit schools were the only school district under the State’s control, so there were other similarly situated classes that could be identified for equal protection analysis. Id. at 868, 874–77.

110. Gary B. v. Whitmer, 957 F.3d 616, 620, 662 (6th Cir. 2020), reh’g en banc granted, opinion vacated, 958 F.3d 1216 (6th Cir. 2020).

111. Id. at 634–35, 637.

112. Id. at 649.

113. Jennifer Chambers, Federal Court Upholds Detroit Literacy Settlement, Detroit News (June 11, 2020, 1:39 PM), https://www.detroitnews.com/story/news/education/2020/06/10/federal-court-upholds-detroit-literacy-settlement-dismisses-appeal/5337575002/ [https://perma.cc/6MSE-AKNP].

114. Id.

115. Order, Gary B. v. Whitmer, 957 F.3d 616 (6th Cir. 2020) (Nos. 18-1855/1871), https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0157p-06.pdf [https://perma.cc/76EX-2BB8].

116. Gary B. v. Whitmer, 958 F.3d 1216 (6th Cir. 2020); John Wisely, Michigan Right to Literacy Settlement Stands as Court Rejects Legislature’s Appeal, Detroit Free Press (June 10, 2020, 6:16 PM), https://www.freep.com/story/news/education/2020/06/10/right-literacy-ruling-stands-court-rejects-legislatures-appeal/5337778002/ [https://perma.cc/ZNE6-6U3Y].

117. Another problem is that the Detroit schools are failing for the very same reasons as the Edgewood schools (the plaintiffs in Rodriguez): a hollowed-out tax base, challenging school demographics, and politically marginalized voters. See Class Action Complaint at 31, 47, 59, Gary B. v. Snyder, 313 F. Supp. 3d 852 (E.D. Mich. 2018) (No. 16-CV-13292).

118. Interestingly, the plaintiffs’ strongest argument may have related to their claim that the state abridged the students’ liberty interests by forcing them to attend decrepit and dangerous schools that provided no learning value through the state compulsory attendance laws. Gary B. v. Whitmer, 957 F.3d 616, 624, 638, 661 (6th Cir.), vacated, 958 F.3d 1216 (6th Cir. 2020). In some ways, the schools resembled jails. See id. at 638. The court did not rule on this claim because it found that the complaint did not provide adequate notice, but it did give plaintiffs leave to amend. Id. This theory is not risk-free, however, and could lead to a request for relief in the form of free-market educational policies, like vouchers. The compulsion and infringement on the liberty interest, in theory, could be ameliorated by issuing vouchers to parents to choose schools, thereby taking the state off the hook. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 662–63 (2002) (upholding state voucher program).

119. Such arguments tend to cling to the antiquated notion that the federal courts and government are better positioned with experience and wisdom than their state counterparts to address issues of inequality. See, e.g., Burt Neuborne, The Myth of Parity, 90 Harv. L. Rev. 1105, 1115–16, 1116 n.45 (1977) (arguing, generally, that federal courts provide a more favorable forum for marginalized groups to seek enforcement of constitutional rights). This may have been true in another time. We have argued elsewhere about the problems of federal government involvement in education. Bruce Meredith & Mark Paige, Opinion, For Better Schools, Abolish the Politicized Department of Education and Give Local Districts More Control, L.A. Times (Jan. 9, 2017, 4:00 AM), https://www.latimes.com/opinion/op-ed/la-oe-meredith-paige-abolish-education-department-20170106-story.html [https://perma.cc/ZAP5-5W5Y].

120. See Barnard, supra note 22.

121. See, e.g., Mueller v. Allen, 463 U.S. 388, 401–02 (1983) (upholding constitutionality of state tax deductions to parents for expenses incurred for private school expenses, including parochial schools); Zelman, 536 U.S. at 658, 661–63 (ruling that state voucher program that resulted in state tax dollars being applied for purposes of sectarian school tuition did not violate the Constitution); Agostini v. Felton, 521 U.S. 203, 230, 237 (1997) (ruling that public school teachers’ instruction in parochial schools did not run afoul of the Establishment Clause); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2024–25 (2017) (finding that exclusion of churches from an otherwise neutral and secular aid program violates the First Amendment’s guarantee of free exercise of religion).

122. See Christopher A. Lubienksi & Sarah Theule Lubienski, The Public School Advantage: Why Public Schools Outperform Private Schools 82 (2014) (assessing student testing data to demonstrate that public schools actually outperform private schools).

123. Id.

124. See, e.g., Valerie Strauss, Florida’s Charter-School Sector Is a Real Mess, Wash. Post (May 3, 2019, 11:56 AM), https://www.washingtonpost.com/education/2019/05/03/floridas-charter-school-sector-is-real-mess/ [https://perma.cc/U6WR-AVPX].

125. See, e.g., Editorial, California’s Charter School Task Force Failed in Its Chief Objective, L.A. Times (June 14, 2019, 11:52 AM), https://www.latimes.com/opinion/editorials/la-ed-charter-school-study-20190614-story.html [https://perma.cc/2MNN-YHH7].

126. See Preston C. Green, III et al., Are Charter Schools the Second Coming of Enron?: An Examination of the Gatekeepers That Protect Against Dangerous Related-Party Transactions in the Charter School Sector, 93 Ind. L.J. 1121, 1123 (2018).

127. See Suzanne E. Eckes et al., Dollars to Discriminate: The (Un)intended Consequences of School Vouchers, 91 Peabody J. Educ. 537, 538–39 (2016).

128. Martha Minow, Confronting the Seduction of Choice: Law, Education, and American Pluralism, 120 Yale L.J. 814, 817 (2011) (noting that the rhetoric around choice appeals to American ideals, such as freedom of religious, individual autonomy, and the like).

129. Id.

130. Id. at 818.

131. Jim Carl, Freedom of Choice: Vouchers in American Education 2 (2011).

132. To be sure, NCLB did raise awareness of important issues of racial disparity in educational achievement. But, as we note below, the costs were quite significant. See infra notes 144–59 and accompanying text.

133. No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1405 (2002).

134. No Child Left Behind Act of 2001, 20 U.S.C. § 6301 (Statement of Purpose).

135. Peter Schrag, Bush’s Education Fraud, Am. Prospect (Jan. 16, 2004), https://prospect.org/special-report/bush-s-education-fraud/ [https://perma.cc/A63U-KHVQ].

136. For example, states were required to adopt standards, such as annual tests to assess student progress to state standards. 20 U.S.C. § 6311(a)(1), (b)(2)(G). If schools failed to satisfy certain proficiency benchmarks, they were subjected to punitive measures, including but not limited to, potential school closure. Id. § 6316(b)(5), (8).

137. Id. § 6301(1). States could set their own standards and some states set bars higher or lower than others. See No Child Left Behind: Early Lessons from State Flexibility Waivers, U.S. Dep’t Educ. (Feb. 7, 2013), https://www.ed.gov/news/speeches/no-child-left-behind-early-lessons-state-flexibility-waivers [https://perma.cc/K4SE-WHUK].

138. 20 U.S.C. § 6311(b)(2)(G).

139. Id. § 6311(b)(2)(C)(v).

140. Id. § 6311(b)(2)(F)–(G).

141. Id. § 6314(b)(1)(C).

142. Id. § 6319(a).

143. Id. § 6316(b)(5), (8)(B).

144. William J. Mathis, The Cost of Implementing the Federal No Child Left Behind Act: Different Assumptions, Different Answers, 80 Peabody J. Educ., no. 2, 2005, at 90, 90–‍91, 97–115 (assessing the costs associated with NCLB and concluding that it would require substantially more money to obtain its goals).

145. James E. Ryan, The Perverse Incentives of the No Child Left Behind Act, 79 N.Y.U. L. Rev. 932, 932, 934 (2004) (characterizing NCLB as “at war with itself” and creating a host of conflicting incentives that undermine any progress that could be had); see also Michel Martin, Former Teacher Blames Education Policymakers for Atlanta Cheating Scandal, NPR (Feb. 16, 2019, 5:07 PM), https://www.npr.org/2019/02/16/695344751/former-teacher-blames-education-policymakers-for-atlanta-cheating-scandal [https://perma.cc/GEM9-XZBC]; Edward C. Fletcher Jr., No Curriculum Left Behind: The Effects of the No Child Behind Legislation on Career and Technical Education, 31 Career & Tech. Educ. Rsch. 157, 160–62, 164–69 (2006) (documenting the negative impact on career and technical offerings in the wake of NCLB).

146. Richard Rothstein, Leaving “No Child Left Behind” Behind, Am. Prospect (Dec. 15, 2007), https://prospect.org/features/leaving-no-child-left-behind-behind/ [https://perma.cc/LH59-YXLW] (describing the impact of NCLB on other subjects). There is an irony in calls for both increased federal involvement and increased civics education, given that the federal government’s last foray into curriculum matters resulted in less, not more, attention to this subject.

147. Michael Heise, From No Child Left Behind to Every Student Succeeds: Back to a Future for Education Federalism, 117 Colum. L. Rev. 1859, 1859 (2017) (“[T]he [NCLB] represented the federal government’s most dramatic foray into the elementary and secondary public school policymaking terrain.”); see also Michael Heise, The Political Economy of Education Federalism, 56 Emory L.J. 125, 127 (2006) (describing NCLB’s mandates as not well-received by governors and local officials).

148. Sch. Dist. of Pontiac v. Sec’y of the U.S. Dep’t of Educ., 584 F.3d 253, 257, 278 (6th Cir. 2009).

149. Heise, supra note 147 (remarking that state policymakers’ reception of NCLB was “strained”).

150. Id. at 129.

151. See, e.g., Diane Ravitch, The Death and Life of the Great American School System 20 (2010).

152. See, e.g., Mark A. Paige et al., Tennessee’s National Impact on Teacher Evaluation Law & Policy: An Assessment of Value-Added Model Litigation, 13 Tenn. J.L. & Pol’y 523, 526, 534–35 (2019).

153. See generally Julie F. Mead & Mark A. Paige, Parents as Advocates: Examining the History and Evolution of Parents’ Rights to Advocate for Children with Disabilities Under the IDEA, 34 J. Legis. 123, 125–35 (2008) (providing a history of special education law and noting the various rights granted to parents to ensure that children with disabilities are not excluded from educational opportunities).

154. Nat’l Council on Disability, Broken Promises: The Underfunding of IDEA 12–13, 34–38 (2018), https://ncd.gov/sites/default/files/NCD_BrokenPromises_508.pdf [https://perma.cc/YD6V-HHDG]. The IDEA, a signature law ensuring public education for students with disabilities has been chronically underfunded by both the federal and state governments since its inception, leaving school districts to cover any shortfall. See Bruce Meredith & Julie Underwood, Irreconcilable Differences? Defining the Rising Conflict Between Regular and Special Education, 24 J.L. & Educ. 195, 206–08 (1995). To be sure, we take no issue with the operating premise of the IDEA—all children do deserve a free appropriate public education. We simply call attention to it as yet another example of unintended consequences of federal intervention in educational policy and that federal interventions may have a sound moral basis but can fall short of practical support. Id. (documenting the rising conflict for resources emerging between parents of regular education students and special education students).

155. Meredith & Underwood, supra note 154, at 196.

156. Peter Greene, 'Tired of Being Treated Like Dirt’ Teacher Morale in the 2019 PDK Poll, Forbes (Aug. 7, 2019, 2:19 PM), https://www.forbes.com/sites/petergreene/2019/08/07/tired-of-being-treated-like-dirt-teacher-morale-in-the-2019-pdk-poll/#1e7fe658df48 [https://perma.cc/V5D8-QWX2].

157. Id.

158. See, e.g., Cory Turner, DeVos Faces Pushback over Plan to Reroute Aid to Private School Students, NPR (May 21, 2020, 2:53 PM), https://www.npr.org/sections/coronavirus-live-updates/2020/05/21/860352150/devos-faces-pushback-over-plan-to-reroute-aid-to-private-school-students [https://perma.cc/DTX9-QCKD]. This is not to say that the federal government should play no role. In fact, the recent federal government response to the coronavirus epidemic highlights one significant role. Instead of designing highly prescriptive educational programs, the federal government can ensure greater and more equal educational opportunities by funding a wide range of educational and social programs that help schools and communities, reminiscent of the President Johnson’s Great Society initiatives, most of which became casualties of the Vietnam War. See generally Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev. 1189, 1272–74, 1281 (1986).

159. Some scholars have called for increased federal involvement. See, e.g., Kimberly Jenkins Robinson, The High Cost of Education Federalism, 48 Wake Forest L. Rev. 287, 287–89 (2013) (criticizing federalism as perpetuating local control that, in turn, maintains a status quo of inequality). We do not suggest there is no role for the federal government. Congress can use its spending and borrowing power to provide funds to distressed school districts and communities, particularly in difficult economic times and with particular focus on programs that reduce impacts of childhood poverty. But, especially in dealing with educational policy, Congress must work collaboratively with states and local districts and, most importantly, must pay for what it mandates.

160. Paul S. Martin, Voting’s Rewards: Voter Turnout, Attentive Publics, and Congressional Allocation of Federal Money, 47 Am. J. Pol. Sci. 110, 111 (2003).

161. See, e.g., Stephen Ansolabehere et al., Equal Votes, Equal Money: Court-Ordered Redistricting and Public Expenditures in the American States, 96 Am. Pol. Sci. Rev. 767, 776 (2002) (“Representation affects the distribution of funds—who gets what—rather than how much government spends.”).

162. Martin, supra note 160.

163. Id. (emphasis added).

164. See, e.g., Elizabeth U. Cascio & Ebonya Washington, Valuing the Vote: The Redistribution of Voting Rights and State Funds Following the Voting Rights Act of 1965, 129 Q.J. Econ. 379, 380 (2014).

165. 42 U.S.C. § 1973(a).

166. Martin Luther King Jr., Civil Right No. 1, N.Y. Times Mag., Mar. 14, 1965, at 26, 95.

167. Cascio & Washington, supra note 164, at 379; Vann R. Newkirk II, How Shelby County v. Holder Broke America, Atlantic (July 10, 2018), https://www.theatlantic.com/politics/archive/2018/07/how-shelby-county-broke-america/564707/ [https://perma.cc/5FW2-PDPR]. The Act prohibited states and local subdivisions from enacting standards, practices, or procedures that would deny the right of any citizen to vote based on race. Voting Rights Act of 1965, Pub. L. No. 89-110, § 2, 79 Stat. 437, 438. It set forth “covered jurisdictions” as states and political subdivisions that had tests or prerequisites to voting. 42 U.S.C. § 1973b(a)(1). Covered jurisdictions were determined under a “coverage formula” that relied on whether a jurisdiction had a voting test in the 1960s and 1970s and also had low voter turnout. Covered jurisdictions were required to obtain “preclearance” (approval from the federal Department of Justice) if they were going to make any changes in their voting procedure. Shelby Cnty. v. Holder, 570 U.S. 529, 537–38 (2013).

168. Cascio & Washington, supra note 164, at 388.

169. 42 U.S.C. § 1973(a).

170. Shelby, 570 U.S. at 537 (“Section 2 is permanent, applies nationwide, and is not at issue in this case.”).

171. Voting Rights Act of 1965 § 4(b).

172. Id. § 5; Shelby, 570 U.S. at 537.

173. See King, supra note 166.

174. Id. at 26.

175. James W. Button, Blacks and Social Change: Impact of the Civil Rights Movement in Southern Communities 5, 206–07 (1989).

176. Martin, supra note 160, at 111.

177. Id.

178. Id. at 112.

179. Cascio and Washington, supra note 164, at 379.

180. Id. at 423–24 (“We posit that the causal link runs from enfranchisement to resource receipt . . . [and] that the VRA provided substantive, rather than merely symbolic, political gains for Southern blacks. Although political gain does not necessarily equate to welfare gain, the fact that this political gain was accompanied by increases in the quality and quantity of black education suggests that the win may have been welfare improving.”).

181. Id.

182. See, e.g., Grant Miller, Women’s Suffrage, Political Responsiveness, and Child Survival in American History, 123 Q.J. Econ 1287, 1303 (2008); John R. Lott, Jr. & Lawrence W. Kenny, Did Women’s Suffrage Change the Size and Scope of Government?, 107 J. Pol. Econ. 1163, 1185 (1999).

183. Lott & Kenny, supra note 182, at 1163 (“Suffrage coincided with immediate increases in state government expenditures and revenue and more liberal voting patterns . . . .”). But see Carolyn M. Moehling & Melissa A. Thomasson, The Political Economy of Saving Mothers and Babies: The Politics of State Participation in the Sheppard-Towner Program, 72 J. Econ. History 75, 75, 77 (2012) (acknowledging the impact of suffrage on initial passage of federal bill leading to increased public spending on social welfare programs at the state level but questioning its long-term impact).

184. For an illustrative but important list of cases, see Citizens United v. FEC, 558 U.S. 310, 351–56 (2010); Buckley v. Valeo, 424 U.S. 1, 25–26 (1976); Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833, 1848 (2018) (finding that process the state of Ohio uses to remove voters from registration rolls does not violate National Voter Registration Act); Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 204 (2008) (upholding state of Indiana’s voter identification requirement for purposes of voting). The policy impact of these decisions has been documented by others. See, e.g., Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right 203–04 (2016) (arguing that a group of extremely wealthy individuals has exploited campaign finance laws to their advantage at the cost of ordinary people and democratic processes); Nancy MacLean, Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America, at xxvii (2017) (making similar arguments to Mayer, but also highlighting the early alliance of convenience between libertarians and those opposing integration).

185. Shelby Cnty. v. Holder, 570 U.S. 529, 557 (2013).

186. See, e.g., Daniel P. Tokaji, Responding to Shelby County*: A Grand Election Bargain*, 8 Harv. L. & Pol’y Rev. 71, 71–72 (2014) (outlining various criticisms of Shelby, including the argument that states would enact restrictive voting requirements without the threat of preclearance).

187. See Newkirk, supra note 167.

188. Shelby, 570 U.S. at 540, 557. In the 5–4 decision, Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented. Id. at 559.

189. Id. at 547–48, 556–57 .

190. Id. at 545–47.

191. Id. at 547.

192. Id.

193. Id. at 556–57.

194. Voter fraud is closely attached to political lore in America. Politicians have famously stated preferences to be buried in Louisiana or Chicago “so [they] could stay active in politics.” See, e.g., Donald W. Carson & James W. Johnson, Mo: The Life & Times of Morris K. Udall (2001); James Gill, Blaze Starr’s Death Prompts memories of Former Louisiana Governor Earl Long, NOLA (June 25, 2015, 2:07 PM), https://www.nola.com/opinions/james_gill/article_72827a3d-690d-5772-8be2-0cd6a4425a0a.html [https://perma.cc/K9E7-CG72]. The reality, however, is that voter impersonation and fraud is extremely rare and, to the extent it does occur, its impact on elections is minimal. For a composite of extensive research on the matter, see Brennan Ctr. for Just., Debunking the Voter Fraud Myth 1, 4 (2017), https://www.brennancenter.org/sites/default/files/analysis/Briefin
     g_Memo_Debunking_Voter_Fraud_Myth.pdf [https://perma.cc/P6ZV-UGEH]. But perhaps the research can be best summed up as follows: “It is more likely that an individual will be struck by lightning than that he will impersonate another voter at the polls.” Justin Levitt, Brennan Ctr. for Just., The Truth About Voter Fraud 4 (2007), https://www.brennancenter.org/sites/default/files/2019-08/Report_Truth-About-Voter-Fraud.pdf [https://perma.cc/U7R8-AAMH].

195. Voting purge refers to the process of cleaning up voter registration rolls by deleting names from voter registration lists. Oftentimes, voters discover that they have been deleted from the list of eligible voters when they arrive at the polling station. While maintaining accurate voting lists is important, the dramatic and recent uptick in such practices that have been considered “deeply flawed” should be noted. Voter Purges, Brennan Ctr. for Just., https://www.brennancenter.org/issues/ensure-every-american-can-vote/vote-suppression/voter-purges [https://perma.cc/W4UT-UA93] (last visited Sept. 20, 2020). From 2014–2016, almost 16 million voters were removed from the rolls, an increase of 33% from the 2006–2008 purges; the increase was highest in states with a history of voter discrimination. Id.

196. Numerous states have enacted strict voter identification laws that require a government issued photo identification, which can be difficult to obtain, especially for pockets of voters, such as minorities, people with disabilities, economically disadvantaged, and elderly, among others. For a comprehensive review of this issue, see Keesha Gaskins & Sundeep Iyer, Brennan Ctr. for Just., The Challenge of Obtaining Voter Identification 1–2 (2012), https://www.brennancenter.org/sites/default/files/2019-08/Report_Challenge_of_Obtaining_Voter_ID.pdf [https://perma.cc/95QZ-KK2E].

197. See Rucho v. Common Cause, 139 S. Ct. 2484, 2508 (2019) (declining to deem partisan gerrymandering unconstitutional).

198. See id. at 2507. Plaintiffs in the North Carolina case asserted violations of the First and Fourteenth Amendments, Article I, § 2 of the Constitution (requiring elected members of Congress be chosen by the People), and the Elections Clause of the Constitution (delegating to States the duty to set the “Times, Places[,] and Manner” of elections). Id. at 2492.

199. Rucho, 139 S. Ct. at 2512. Rucho consolidated two cases, Rucho v. Common Cause (the North Carolina challenge) and Benisek v. Lamone, 348 F. Supp. 3d 493 (D. Md. 2018) (the Maryland case). Id. 2491, 2493. Plaintiffs in the Maryland case did not allege an Equal Protection violation. Rucho, 139 S. Ct. at 2493.

200. Lamone, 348 F. Supp. 3d at 497, 502.

201. Rucho, 139 S. Ct. at 2492–93.

202. Id. at 2506–07 (citations omitted) (quoting Vieth v. Jubelirer, 541 U.S. 267, 278–79 (2004)).

203. Id. at 2497.

204. Despite the Court’s reliance on abstract constitutional doctrine, Rucho benefited Republican interests because Republicans were in control of most state legislatures, thereby allowing them to draw the legislative districts, resulting in a political geography that favored Republican candidates and interests. See Associated Press, Analysis: Partisan Gerrymandering Has Benefited Republicans More than Democrats, Bus. Insider (June 25, 2017, 11:25 AM), https://www.businessinsider.com/partisan-gerrymandering-has-benefited-republicans-more-than-democrats-2017-6 [https://perma.cc/GUQ8-TPHJ].

205. Laura Royden & Michael Li, Brennan Ctr. for Just., Extreme Maps 1 (2017), https://www.brennancenter.org/sites/default/files/publications/Extreme Maps 5.16_0.pdf [https://perma.cc/YTU8-A57A].

206. Id. at 22.

207. Joshua A. Douglas, The Right to Vote Under State Constitutions, 67 Vand. L. Rev. 89, 101 (2014); Jamin B. Raskin, Introduction: The Constitutional Importance of the District of Columbia, 48 Am. U. L. Rev. 589, 612–13 (1999).

208. See, e.g., Douglas, supra note 207.

209. Id. at 103. “These states are Arizona, Arkansas, Colorado, Delaware, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.” Id. at 103 n.86.

210. Id. at 104 & n.91 (“Eight of these fifteen states also include a ‘free and equal’ or ‘free and open’ clause . . . . Seven states . . . also explicitly grant the right to vote, meaning that they have all three provisions in their constitutions.”).

211. See id. at 120–22 (presenting an argument as to why states should give their respective constitutional voting provisions “primacy” over federal interpretation of voting rights). Douglas sets forth a two-part test that could prove a workable standard for state courts to ensure robust protections of voter rights under state constitutions. Id. at 137. That test would require state courts to ask two questions: “(1) whether the law at issue infringes upon the explicit constitutional grant of voting rights by adding an additional qualification, and then (2) whether the exercise of the legislature’s power can outweigh that mandatory right.” Id.

212. See id. at 121–22 (arguing that “lockstepping,” following federal guidance in interpretation of state constitutional voting provisions, is inconsistent with federal constitutional deference to states with respect to election law); Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 17 (2013).

213. See Douglas, supra note 207, at 121–22.

214. Id. at 125.

215. Rucho v. Common Cause, 139 S. Ct. 2484, 2507 (2019) (citations omitted) (first citing League of Women Voters of Fla. v. Detzner, 172 So. 3d 363 (2015); and then citing Rucho, 139 S. Ct. at 2524–25 (Kagan, J., dissenting)).

216. Kristen Bialik, How Americans View Some of the Voting Policies Approved at the Ballot Box, Pew Rsch. Ctr.: FactTank (Nov. 15, 2018), https://www.pewresearch.org/fact-tank/2018/11/15/how-americans-view-some-of-the-voting-policies-approved-at-the-ballot-box/ [https://perma.cc/LY25-L8JM].

217. See, e.g., Number of States Using Redistricting Commissions Growing, AP News (Mar. 21, 2019), https://apnews.com/4d2e2aea7e224549af61699e51c955dd [https://perma.cc/FZN4-NLM2]. Specific examples of states adjusting their redistricting procedures include: (1) Missouri: creating a state demographer to draw state legislative district lines and requiring that maps are designed to achieve partisan fairness and competitiveness); (2) Colorado: amending constitution to require that the general assembly prioritizes equality in populations across districts); and (3) Michigan: amending state constitution to create nonpartisan multimember commission charged with creating congressional and state legislative districts). See Mo. Const., art. III, § 3.; Colo. Const., art. V, §§ 44, 46; Mich. Const., art. IV, § 6.

218. Ciara Torres-Spelliscy, Electoral Silver Linings After Shelby*,* Citizens United and Bennett, Berkeley J. Afr.-Am. L. & Pol’y, 2015, at 103, 107 (noting that the concept of “severability” preserved key provisions of the Voting Rights Act, notwithstanding the Supreme Court’s decision to hold certain other sections as unconstitutional).

219. Shelby Cnty. v. Holder, 570 U.S. 529, 537 (2013) (“Section 2 is permanent, applies nationwide, and is not at issue in this case.”); id. at 557 (“Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in § 2.”).

220. See Travis Crum, The Voting Rights Act’s Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance, 119 Yale L.J. 1992, 1997 (2010); Paul M. Wiley, Shelby and Section 3: Pulling the Voting Rights Act’s Pocket Trigger to Protect Voting Rights After Shelby County v. Holder, 71 Wash. & Lee L. Rev. 2115, 2118 (2014).

221. This is not optimal as it raises difficult evidentiary questions of intent in the context of racial discrimination claims, creating a high bar to prove.

222. Jelani Cobb, The House Takes on America’s Voting-Rights Problem, New Yorker (Feb. 10, 2019), https://www.newyorker.com/magazine/2019/02/18/the-house-takes-on-americas-voting-rights-problem [https://perma.cc/RN53-62GB].

223. U.S. Const. art. I, § 4.

224. See Douglas, supra note 207, at 95–101 (2014); Cynthia Soohoo & Jordan Goldberg, The Full Realization of Our Rights: The Right to Health in State Constitutions, 60 Case W. Rsrv. L. Rev. 997, 1005 (2010) (describing what negative rights are and how they operate).

225. Douglas, supra note 207, at 95–96 (“The U.S. Constitution mentions individual voting rights . . . in the Fourteenth, Fifteenth, Seventeenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments—but none of [these] provisions actually grant a right to vote to U.S. citizens.”).

226. See, e.g., Burdick v. Takushi, 504 U.S. 428, 434 (1992); Bush v. Gore, 531 U.S. 98, 104 (2000); Baker v. Carr, 369 U.S. 186, 207–08 (1962).

227. Reynolds v. Sims, 377 U.S. 533, 555 (1964).

228. Harper v. Va. Bd. of Elections, 383 U.S. 663, 665 (1966) (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.”).

229. Douglas, supra note 207, at 98.

230. Burdick, 504 U.S. at 434.

231. See id.

232. See id.

233. Id.

234. Douglas, supra note 207, at 99 (describing the disconnect between the right to vote, which has been considered “fundamental” and “the essence of a democratic society,” and the high bar of scrutiny that must be passed for plaintiffs to succeed in challenging restrictive state voting laws). Moreover, the Court has rejected facial challenges to state election laws, preferring to limit claims to as-applied, further restricting federal protections. Id. This has the practical effect of impacting only the plaintiffs involved in a matter. Recently, the U.S. Supreme Court refused to hear a challenge to Texas’s prohibitions on mail-in voting, however the challenge may be heard prior to the November 2020 elections. See Emma Platoff, U.S. Supreme Court Won’t Fast-track Texas Democrats’ Bid to Expand Mail-in Voting During Pandemic, Tex. Trib. (July 2, 2020, 10:00 AM), https://www.texastribune.org/2020/07/02/us-supreme-court-Texas-lawsuit-mail-in-voting/ [http
     s://perma.cc/J96K-YCM5].

235. E.g., Common Cause v. Brehm, 432 F. Supp. 3d 285, 319 (S.D.N.Y. 2020).

236. Rucho v. Common Cause, 139 S. Ct. 2484, 2502 (2019) (distinguishing racial gerrymandering claims from those that assert partisan gerrymandering).

237. These barriers have only multiplied in the context of the COVID-19 pandemic. See, e.g., Emily Bazelon, Will Americans Lose their Right to Vote in the Pandemic?, N.Y. Times Mag. (May 5, 2020), https://www.nytimes.com/2020/05/05/magazine/voting-by-mail-2020-covid.html [https://perma.cc/8ZV3-E45F]. Some states appear to be restrictive in allowing mail-in voting as a means to avoid potential exposure to the coronavirus. Ashley Lopez, Texas Voters Are Caught in the Middle of a Battle Over Mail-in Voting, NPR (May 29, 2020, 5:00 AM), https://www.npr.org/2020/05/29/864143739/texas-voters-are-caught-in-the-middle-of-a-battle-over-mail-in-voting [https://perma.cc/B4SZ-9W2P].

238. Other scholars have framed voting as a key to equality by advancing an argument for an amendment to the Constitution. Richard L. Hasen, Opinion, Bring on the 28th Amendment, N.Y. Times (June 29, 2020), https://www.nytimes.com/2020/06/29/opinion/sunday/voting-rights.html [https://perma.cc/P9HD-3MFU].

239. The aftermath of the Brown decision continues to highlight these limits. Indeed, the federal courts struggled with achieving the goals of Brown and public schools are as segregated today as they were when the Court decided Brown. See, e.g., Charles T. Clotfelter, After Brown: The Rise and Retreat of School Desegregation 1, 56–57 (2004) (noting how some schools remain just as segregated today as prior to Brown).