Last year's crossing of the half-century mark for Brown v. Board of Education sparked much reflection. With the notable exception of Derrick Bell, who in the tradition of W.E.B. du Bois has argued that the goal of Brown should have been equal funding rather than integrated schools, most scholars agreed that the right result was reached, if for wrong, strained, or insufficient reasons.
One route the court could have taken, but did not, was to declare that education itself is a fundamental constitutional right. Actually, Jack Balkin, in his smart and clever book What Brown v. Board of Education Should Have Said, said "one could be forgiven for thinking that the court did hold that education was a fundamental interest." Chief Justice Warren wrote that the opportunity for education, "where the state has undertaken to provide it, is a right which must be made available to all on equal terms." But the simple holding of Brown as it became understood was considerably more modest: that "separate educational facilities are inherently unequal."
Any doubt on this point was resolved in San Antonio Independent School District v. Rodriguez (1973), a 5-4 opinion in which Justice Powell held (as Balkin puts it) "that education was not a fundamental right or a fundamental interest, that the poor had no constitutional right to equal treatment on grounds of their poverty, and that states and municipalities had no constitutional obligation to equalize funding for education, or, for that matter, to guarantee equal educational opportunity for rich and poor." (Thurgood Marshall was in the dissent, as you might imagine.) It was an issue best left to the states.
In North Carolina the Leandro case put this question to the test. Although Justice Orr would have found a constitutional right to equal education, he was a lone minority. The guarantee of Leandro is only a guarantee of certain basic minimal standards.
Still, you work with what you have. Judge Howard Manning, who has embraced his role as enforcer of the law, cajoler of legislators, thorn in the side of school administrators, does not let up. In a report issued this week on the sad state of N.C. high schools (available here), he cited four in the Charlotte-Mecklenburg district--four schools whose low test scores aligned with high percentages of minority students--as victims of "academic genocide." Manning to Charlotte-Mecklenburg, Manning to North Carolina: you must and can do better.