largely white, was it legal for them to have "better" schools out there if they were willing to heavily tax their local property tax base to achieve that end? And what about the all-white, or mostly-white, schools within urban school districts in the North and West that weren't going to be ordered to desegregate? Was it legal for those schools to be "better" than the schools in the black neighborhoods?

In the mid-to-late 1960s, some wondered whether advocates for black school children should go back to the "separate but equal" doctrine. That strategy, however, seemed problematic for several reasons. First, if racial imbalance in the student bodies could not be shown to be the result of intentional governmental discrimination, would one be able to show that differences in school quality were intentionally created on the basis of race? (Without such a showing, de facto quality differences seemed no more subject to a racial challenge than were de facto assignment schemes.) Second, despite the special place that had been awarded to education in Brown, the Court (and the 1964 Civil Rights Act) soon moved to make intentional racial discrimination generally illegal. In other words, the doctrine of "separate but equal" was broadly overturned—having been made just as inapplicable to public golf courses as to public schooling. Finally, there was the fact that, as one looked around the state, one saw that the apparently excellent public schools that white children attended in some suburbs also seemed markedly superior to public schools elsewhere in the region that also largely enrolled white pupils. Perhaps school-quality differences were not ultimately a race question after all.

These puzzles and concerns forced scholars and activists committed to the idea of equality of educational opportunity for all children to study why it was that some children, both white and black, seemed to be receiving a decidedly inferior education as compared with what other children (mostly white) were receiving. And so, in the late 1960s, while the fight for school desegregation was still in full swing, it was first argued that courts should get involved in the issue of the distribution of school resources quite apart from any question of racial discrimination.

Early Legal Thinking About School Finance Inequalities

Although in the prior paragraphs describing raced-based litigation we have sometimes phrased the complaints of black students in terms of the "inadequacy" of their educational opportunities, school finance scholars today would probably categorize these lawsuits as "equity" cases. This is because the gist of the complaint was that, although the plaintiffs (blacks) were entitled to treatment that was comparable to what the comparison group (whites) received, they were not receiving it. In other words, "equity" cases are about getting worse treatment than someone else. "Adequacy" cases, as well will see, seem instead to be centrally



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