Camilla E. Watson^[1]*

“Education is the passport to the future, for tomorrow belongs to the people who prepare for it today.”^[2]

–Malcolm X

Introduction

The importance of education cannot be overstated.^[3] Education is a core principle of the American Dream, and as such, it is the ticket to a better paying job, homeownership, financial security, and a better way of life.^[4] Education is the key factor in reducing poverty and inequality and promoting sustained national economic growth.^[5] But while the U.S. Supreme Court has referred to education as “perhaps the most important function of the state and local governments,”^[6] it has nevertheless stopped short of declaring education a fundamental right guaranteed under the Constitution.^[7] As a consequence, because education is not considered a fundamental right, it does not have to be offered equally to all.^[8]

Despite the 1954 Supreme Court decision in Brown v. Board of Education,^[9] which was followed by legislative efforts to provide greater educational opportunities for minorities by alleviating discrimination,^[10] disparities in the availability and quality of education for minorities and other lower income students have become more pronounced over time.^[11] Today, these disparities result in two general problems. First, many minority and lower income families live in school districts that lack the resources of wealthier districts.^[12] Thus, students in poorer districts tend to drop out at a higher rate, consigning them to a lifetime of low-paying jobs and poverty.^[13] Second, students who continue on to higher education are generally unprepared as compared to their cohorts from wealthier school districts. ^[14] Therefore, not only will more elite institutions of higher education be foreclosed to those students, but they will struggle to obtain a postsecondary degree and many will drop out prior to obtaining that degree.^[15] Without a postsecondary degree, these individuals will be relegated to low-paying jobs, usually with few opportunities for advancement.^[16]

Although grants, scholarships, fellowships, reduced tuition, and work-study programs are available to help defray the cost of higher education, many minorities still struggle to pay this cost. Wealthier students and their families benefit from federal tax incentives, but these incentives do not work as well for lower income students and their families. Thus, for lower income students, the difference between the cost of higher education and the financial assistance received must be compensated through student loans. Those who borrow and drop out prior to completion are worse off for having entered higher education; they struggle to repay student loan debt, and they have no college degree to help them obtain a higher paying job.^[17] Even minorities who earn a degree often find that, with discriminatory hiring and promotion policies, the deck continues to be stacked against them.^[18] Because of the crushing debt load many student loan borrowers bear—particularly lower income individuals—if they do not have a job that allows them to sufficiently manage debt, they may be relegated to a lifetime of indebted servitude.^[19] If so, this could affect their personal and professional decisions, as well as the economy at large.^[20]

Some of the educational inequities that minorities and lower income individuals face are the result of the tax system at both the state and federal levels. State schemes of funding primary and secondary education through the property tax system—a system that has become engrained over time—ensure that those living in poorer districts with lower real estate values generally receive a poorer quality education; this fact has been highlighted and made starker during the current COVID-19 pandemic.^[21] Federal tax incentives further promote disparity by encouraging wealthier families to enroll their children in private and charter schools.^[22] At the college level, myriad tax incentives encourage the pursuit of higher education, but these incentives are highly regressive.^[23] Thus, they are most valuable to those with higher income. While there are Federal Pell Grants available that encourage lower income students to pursue or remain in higher education, those grants become less meaningful each year as the amount of assistance fails to keep pace with rising higher education costs.^[24]

Not surprisingly, these policies have contributed to an education gap between Blacks and Hispanics on the one hand and whites on the other hand,^[25] producing an underclass of uneducated or undereducated poor minorities. This is particularly significant because, in the United States, the population of Blacks and Hispanics is rapidly overtaking that of whites.^[26]

This Article delves into the many ways in which the education playing field is uneven for minorities and other lower income individuals. Part II discusses discrimination in the funding of primary and secondary (K-12) education that has led to problems of inequality and deprivation and has resulted in a large underclass of uneducated or undereducated individuals, many of whom are minorities. These problems stem from state funding schemes that rely on the property tax system—a system that fosters inequality. Part III examines the problems minorities face in higher education, which are, in some part, a function of the federal tax system. Part IV concludes by summarizing these problems and offering suggestions for improvement.

Discrimination in Funding of Primary and Secondary Education

Unlike other countries, the United States has no national education system.^[27] Instead, education and its funding are left to the individual states, where many children of minority and other lower income families receive inadequate education due to insufficient funding. Under state law, funding of K-12 education is determined, in large part, by local property taxes.^[28] Because there are large areas of wealth disparity across the country, this creates haves and have-nots in education, with particularly stark differences during this unusual time of the raging COVID-19 pandemic.^[29] Efforts by both state and federal governments to alleviate these obvious inequities have, for the most part, proven ineffective,^[30] as have various lawsuits seeking to force states to level the playing field.^[31]

Why do states use such an obviously inequitable funding system? The system goes back to the United States’ early days when there were other inequities in the provision of education. Back then, whether a child received an education depended on gender (girls were much less likely to be educated), race, religion, wealth, and geography.^[32] As time passed, some of those inequities were resolved, but racial biases have persisted and have ingrained the system of school funding through property tax revenue.^[33]

Historical Background of State Funding of K-12 Education

After the Puritans settled in Massachusetts Bay, they focused on education to ensure their children could read the Bible and propagate their religion.^[34] The Puritans funded this education through property tax receipts, which were collected on an annual basis.^[35] At the time, the property tax system worked well because the colonies were sparsely populated, the disparities in wealth were not great, and the money went into a central fund that financed education for the township.^[36] Although the tax was controversial at times, the controversy generally centered on the amounts levied rather than on how the money was spent.^[37]

In the early to mid-1800s, an influx of immigrants led the states to begin funding education, and in 1852, Massachusetts became the first state to require at least twelve weeks of education.^[38] While the provision of mandatory education was at first controversial, it gradually came to be accepted, and state constitutions were amended to guarantee free primary and secondary schooling.^[39]

The Industrial Revolution in the late nineteenth century caused the United States to become more urbanized, producing greater disparities in wealth.^[40] Because wealthier areas with higher valued real estate derived more revenue for schools, this trend highlighted the inequity in funding education through property tax revenues.^[41] In the early twentieth century, states began subsidizing poorer districts to alleviate this inequity.^[42] But as property values soared in wealthier districts, state subsidies began to lag behind, once again widening the funding disparity between wealthier districts and poorer ones.^[43]

After World War II, white families began to move from the cities to the suburbs, leaving Black families stranded in the cities where property values plummeted.^[44] Discriminatory housing practices prevented Blacks from buying homes in white neighborhoods and discriminatory banking practices prevented them from borrowing money, both of which caused further segregation between Blacks and whites.^[45] This, in turn, caused the inequities between poorer urban schools and wealthier suburban schools to become starker than ever.^[46]

Current Funding of Primary and Secondary Education

In general, primary and secondary education are funded by federal, state, and local governments, although the federal government’s contribution is relatively minimal and is targeted to lower income students and those with disabilities.^[47] The amounts contributed by state and local governments tend to be relatively equal.^[48] Reliance on local property taxes has not changed since colonial times and is obviously inequitable, but states loathe abolishing it.^[49] While its underlying rationale may be attributable to racism,^[50] there are legitimate reasons for this type of funding. First, the property tax tends to be less volatile than the income, sales and use, and excise taxes.^[51] Second, in some cases, the property tax can be less regressive than other types of taxes.^[52]Third, some have argued property tax funding supports local autonomy and encourages civic engagement.^[53]

It is understandable that parents would not want to surrender local control of their children’s schools, but the result is an entrenched, inequitable funding system in which it is not politically palatable to simply move money from a wealthy school district to a poor one.^[54] This is where the states should step in to equalize funding. But their participation is a question of how much money they have and how willing they are to resolve the problem.

While it is not always true that school districts with lower valued property have more minorities and lower income families,^[55]that is generally the case. Schools in these districts often have more students with exceptional needs, such as homelessness; trauma; lack of internet access; fallout from the COVID-19 pandemic, which has disproportionally fallen on minorities in both health and economic respects; language barriers; and other challenges.^[56]Thus, these districts generally need additional resources to put them on equal footing with their peers from wealthier school districts.

A few states account for these exceptional needs in their funding formulas by adequately funding poorer school districts, while other states fail to fully consider (or are not inclined to consider) the exceptional needs of high-poverty school districts.^[57] Other states consider these needs and are concerned with the plight of high-poverty school districts but do not have the money to adequately fund those districts.^[58] These latter states tend to fall within the “flat” zone, in which there are no significant differences between the amounts they allocate to high-poverty school districts versus low-poverty districts.^[59]This results in underperforming students and high dropout rates.^[60]

The disparity between wealthy and poor schools has been further heightened and highlighted during the COVID-19 pandemic as disadvantaged minority students have suffered far more than privileged white students.^[61] Even with additional state funding, poorer school districts have struggled to provide adequate personal protection equipment for teachers and students, to make technology available for remote learning, and to ensure internet access for students.^[62] Additionally, many children from lower income families lack supportive home environments, reliable internet connectivity, or quiet areas to study and participate in online classes.^[63] After school closures at the start of the pandemic, some students in poorer districts could not be reached to receive instructions for online classes.^[64] In contrast, in wealthier households, many parents could afford to stay home or hire tutors to homeschool their children and ensure they were spending the requisite time learning and absorbing what they had learned.^[65]

The COVID-19 pandemic has widened an already large education gap between lower income and higher income students.^[66] In an interview, one expert remarked that it “will take years of additional supports, more individualized instruction, and [more] opportunities for students to be tutored or do small group work” to lessen this gap.^[67] That same expert further noted that lessening the gap will involve prioritizing systematic changes “not just within schools, but also throughout the community at local, state and national levels.”^[68]

In the past—when confronted with the stark disparity in facilities; training; and availability of teachers, counselors, materials, technology, and funding—officials have harked back to the long-held view of white entitlement: that local schools should be locally controlled and funded.^[69] This view is self-sustaining because those in positions of influence who may be able to effect change think the system works just fine as is.^[70] But the fact is that states can and do exert control over local schools.^[71]

In defending the system, officials have argued most states lessen the disparity by providing more funding to poorer school districts than wealthier ones.^[72] But the additional state funding is not nearly enough to close the funding gap between these districts.^[73] Another problem is that state funding from general revenue is more erratic than property tax revenue because general state revenue relies heavily on income and sales taxes, which in periods of economic downturn—of which the pandemic is an extreme example—have dropped precipitously while property taxes have remained relatively constant.^[74]

The fair way to rectify this disparity is to control school funding at the state, rather than local, level.^[75] Some state constitutions provide for free education at the primary and secondary levels, but thus far, only twenty-two states have recognized education as a fundamental right.^[76] According to the American Bar Association, “American education has developed into a hodge-podge quilt of different rights, access, and quality standards that depend entirely upon where children live.”^[77] Both “[p]oliticians and the public” have noted that “no child’s future should be determined by their zip code.”^[78]

Why a Judicial System Is Not Feasible

After the 1954 decision in Brown, there was an effort to level the playing field,^[79] but the success of this effort depended upon the size of the school district. In states where education funding was dispersed at the county level, wealthier and poorer areas could be combined to alleviate much of the disparity.^[80] But in states with separate school districts, this was a far more difficult task.^[81]

San Antonio Independent School District v. Rodriguez

In 1968, Demetrio Rodriguez, a San Antonio sheet metal worker representing Mexican-American parents whose children attended schools in the Edgewood School District of San Antonio, brought a class action lawsuit against the Texas state educational financing system, alleging that the system violated the Equal Protection Clause of the U.S. Constitution.^[82] Rodriguez’s children, along with those of the other plaintiffs, attended a dilapidated school in which the third floor had been condemned, the textbooks were out of date, and the teachers were underpaid.^[83] This contrasted with the neighboring, predominately white area of Alamo Heights, a much more affluent section of San Antonio with a far superior school system.^[84] Rodriguez alleged that the Texas school financing structure, which relied heavily on local property taxes, fostered inequitable educational opportunities between the rich and poor, of the type that Brown sought to alleviate.^[85]

The case was argued before a three-judge panel, which held in favor of Rodriguez, reasoning that education was a fundamental right and wealth was a suspect classification.^[86] As such, heightened scrutiny applied and the state was unable to demonstrate a compelling interest for this particular funding scheme.^[87] The school district appealed to the U.S. Supreme Court, which reversed the district court in a 5–4 decision, holding that the lower court improperly applied strict scrutiny to the Texas financing scheme.^[88] Although it recognized the “undeniable importance of education,”^[89] the Supreme Court held the Texas system was constitutional because it did not discriminate against any definable suspect class^[90] and the respondents failed to prove education was a fundamental right specifically guaranteed under the Constitution.^[91] Thus, the Texas system stood because the proper standard of review, which the petitioners had met, was whether the Texas system was rationally related to the legitimate state purpose of providing basic minimal skills sufficient for its citizens to exercise their constitutional rights.^[92] Moreover, according to the Court, the Texas system did not violate the Equal Protection Clause because the system “permit[ed] and encourage[d] . . . participation in and significant control of each district’s schools at the local level.”^[93]

Recognizing that reliance on local property tax revenue to fund school districts would “provide[] less freedom of choice with respect to expenditures for some districts than for others,”^[94] the Court went on to opine that “the existence of ‘some inequality’ in the manner in which the State’s rationale is achieved is not alone a sufficient basis for striking down the entire system.”^[95]

In a short dissenting opinion, Justice Brennan criticized the majority’s view that a fundamental right could only be a right directly guaranteed by the Constitution. Instead, he claimed that the “fundamentality” of a right is determined, in large part, by “the right’s importance in terms of the effectuation of those rights which are in fact constitutionally guaranteed.”^[96] Rodriguez believed the Texas funding scheme was unconstitutional, arguing that education should be regarded as a fundamental right because it is “inextricably linked to the right to participate in the electoral process and to the rights of free speech and association guaranteed by the First Amendment.”^[97]

Interestingly, between the case’s filing and oral argument, a new group of Justices had been appointed.^[98] Chief Justice Warren, who wrote the majority opinion in Brown, stepped down in 1969 and was succeeded by Chief Justice Burger, a Nixon appointee and a more conservative Justice.^[99] In 1971, Justice Black, an FDR appointee and one of the Court’s more liberal members, stepped down for health reasons and was succeeded by Justice Powell, another Nixon appointee.^[100] Justice Powell, a moderate member of the Court, was the swing vote, as well as the author of the majority opinion in Rodriguez.^[101]

Although Justice Powell served for eighteen years on the school board of the city of Richmond and the Virginia State Board of Education and was appointed chair of those bodies for nine years and one year, respectively, he drew the line at deeming education a fundamental interest.^[102] Instead, he believed judicial restraint was of primary importance, despite calling himself “the education justice.”^[103]

Ironically, Justice Blackmun, a liberal member of the Court, voted with the majority, while Justice White, a conservative, dissented. Justice White noted that, if the Texas financing scheme had provided a minimum level expenditure to all districts and allowed each district a meaningful option to increase funding and provide a better education for its children, the system arguably would have been a rational method of achieving quality education through local control.^[104] But he pointed out that, while the Texas system provides a meaningful option to wealthier districts like Alamo Heights, it provides almost no option to poorer districts with a low real estate tax base, like Edgewood.^[105] He went on to note that the property-tax-based system “utterly fails to extend a realistic choice to parents because the property tax, which is the only revenue-raising mechanism extended to school districts, is practically and legally unavailable” to poorer districts.^[106]

The effect of the Rodriguez decision is that, despite the passage of almost 350 years, the quality of education and whether some children actually receive an adequate education still depend upon ethnicity, locality, and socioeconomic status.^[107]Thus, it is not surprising that, in a 2015 Time magazine article, the Rodriguez decision was nominated one of the worst Supreme Court decisions since 1960.^[108]

The Gary B. et al. Cases

After Rodriguez, it was clear litigants challenging property-tax-based funding would be waging a losing battle in the federal courts and would have to seek redress in state courts.^[109]Although these litigants have had some success at the state court level, these suits have proved unsatisfactory for the most part.^[110] But, in 2020, litigants were temporarily successful in the Sixth Circuit. In Gary B. et al. v. Whitmer, a group of Detroit students in predominately Black and Latinx schools challenged the school funding system, alleging their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment had been violated because, in contrast to wealthier, predominately white school districts, the deplorable conditions in their schools deprived them of a basic minimum education.^[111] They asked the Sixth Circuit to rectify this problem by recognizing a fundamental right to education.^[112]

The case was initially filed against Michigan governor, Richard Snyder, in the Eastern District of Michigan in 2016, and a decision was rendered by that court in 2018.^[113] Judge Murphy, a Trump appointee, rejected the plaintiffs’ claims^[114] by declining to recognize education as a fundamental right.^[115] He stated that, while literacy and access to it are of “incalculable importance,” that alone does not justify education’s classification as fundamental.^[116] Instead, he reasoned that, under Supreme Court precedent, a fundamental right to education would be one that “requires [a] finding that neither liberty nor justice would exist absent state-provided literacy access.”^[117] In keeping with the originalist view of fundamental rights being only those rights envisioned under the Constitution, Judge Murphy noted: “There was no federal or state-run school system anywhere in the United States as late as 1830.”^[118] He concluded “history evinces a deep American commitment to education, but runs counter to the notion that ordered society demands that a state provide one.”^[119]

Judge Murphy’s reasoning demonstrates the fallacy in the originalist view. When the Constitution was ratified, the United States was not the vast country it is today.^[120] Slaves were regarded as property,^[121] women were not educated to the extent that men were,^[122] and the country was much less populated and diverse. Early education focused mainly on religion.^[123] Education was not directly mentioned in the Constitution because, at the time it was ratified, education was not fully available to all. However, two years before ratification, the Northwest Ordinance declared: “Religion, [m]orality and knowledge being necessary to good government and the happiness of mankind, [s]chools and the means of education shall be forever encouraged.”^[124]

Judge Murphy also focused on Brown, noting that, although the language in support of education for all was strong, the Supreme Court not only had stopped short of declaring it a fundamental right but also had implied it was not a fundamental right at all.^[125] In support of this assumption, he quoted Brown:

In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.^[126]

Judge Murphy interpreted the italicized language to mean that a state may choose not to provide education, thus undercutting the plaintiffs’ due process claim.^[127] What he neglected to say, however, is that all fifty states provide for education in their constitutions, although the language of those provisions varies.^[128]

The plaintiffs then appealed to the Sixth Circuit, where the case was heard before a three-judge panel.^[129] The panel agreed with Judge Murphy that the plaintiff’s equal protection and due process claims had been properly dismissed, but it held in a 2–1 decision—divided along political lines—that basic minimal education should be regarded as a fundamental right.^[130] In response to the appellees’ argument that the right to education was not regarded as fundamental when the Constitution was ratified, the court noted: “Suffice it to say that the practices of the 1700s cannot be the benchmark for what a democratic society requires.”^[131] The court reasoned that education (and thus literacy) is fundamental “because it is essential to the enjoyment of . . . other fundamental rights, such as participation in the political process”^[132] and “is important not just to provide a shot at achievement in the face of inequalities of wealth and power, but specifically as a means of addressing past racial discrimination that restricted educational opportunities, and of course to maintain as best we can whatever equal opportunity has already been achieved.”^[133]

Democratic governor Gretchen Whitmer was quick to preserve this decision by agreeing to settle with the appellants.^[134] However, in an unusual—although not altogether surprising—move, the Sixth Circuit vacated the decision en banc.^[135]

The International View

Contrary to American jurisprudence, the international community has long regarded the right to education as fundamental.^[136] This concept is center stage in two conventions: the Convention on the Rights of the Child^[137] (CRC) and the International Covenant on Economic, Social and Cultural Rights^[138] (ICESCR).

The CRC is a human rights treaty focused on the rights of children,^[139] including civil, economic, social, educational, medical, political, and cultural rights.^[140] The convention provides that these rights shall be available “without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”^[141] The right to education under the convention is guaranteed “on the basis of equal opportunity.”^[142]

The ICESCR was adopted in 1966 by the General Assembly of the United Nations and was entered into force ten years later.^[143] It ensures the protection of economic, social, and cultural rights, including the rights to work;^[144] have an adequate standard of living;^[145] and be free from “discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”^[146] The ICESCR also ensures a right to education to “enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and among all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.”^[147]

Although the United States has signed both conventions, it has yet to ratify either.^[148] Its failure to ratify the CRC is particularly noteworthy because, although it played a role in drafting the convention, the United States is the only United Nations country that has failed to ratify it.^[149] The United States is also among only four countries to sign but not ratify the ICESCR.^[150]

A Federal Solution?

When the federal government undertook to fund programs for lower income children and disabled individuals, it agreed to pay an amount far less than what it currently pays.^[151] Although the government has turned a deaf ear to states’ pleas to raise this funding in the past, states are likely to have more success with the Biden Administration because President Biden has identified education as an urgent priority and has previously expanded the federal role in education with bipartisan support.^[152] President Biden has also expressed an interest in addressing unequal funding among school districts,^[153] but he has not revealed how he intends to do this.

Any increase in the federal government’s role should require a hard look at how states spend current federal funding and whether needless bureaucracy at the state level can be cut.^[154] This would not only ensure that federal dollars go farther, but it would also ensure that intended beneficiaries actually receive them. Another condition of receiving this aid should be that states cannot cut their own funding in response to additional federal support.

Federal Funding of Higher Education

Background

Although the federal government became heavily involved in higher education at the end of World War II when Congress enacted the Serviceman’s Readjustment Act of 1944, better known as the GI Bill,^[155] education continued to be regarded as the primary responsibility of the states.^[156] Further federal expansion into the funding of higher education occurred during the Cold War era,^[157] but the 1960s—during the Johnson Administration—saw the largest expansion of federal funding with the enactment of the Elementary and Secondary Education Act of 1965^[158] (ESEA) and the Higher Education Act of 1965^[159] (HEA). These two pieces of legislation marked the beginning of wholesale federal involvement in education funding.

The ESEA sought to equalize educational opportunities at the K-12 level for minorities who had been deprived and discriminated against.^[160] The HEA provided financial resources not only to colleges and universities but also to postsecondary students through scholarships, low-interest loans, and work-study programs that made higher education more affordable to low- and middle-income students.^[161]

Over time, the federal government’s financial involvement in education continued to grow while state involvement, particularly in higher education, declined.^[162] This phenomenon caused both the cost of higher education and the amount of federal financial assistance to incrementally increase.^[163] Such assistance includes direct benefits, like Pell Grants for low-income students;^[164] low-interest student loans;^[165] and indirect assistance in the form of income tax incentives.^[166] Today, without federal assistance, the cost of higher education would be prohibitive for many minority and lower income students. Even with federal assistance, many lower income individuals are reluctant to undertake the crushing burden of student loan debt.^[167] This is reflected in the widening education gap between minorities and other lower income individuals and those in higher income ranges.^[168]

Another cause of that gap lies in funding inequities at the primary and secondary levels, which often translate into the dwindling availability of college counselors at poorer secondary schools.^[169] Thus, students at these schools may be less informed about the advantages of higher education and which schools may be better suited to their needs.^[170] It also may result in students being ill-informed about the availability of federal financial assistance, which could be crucial in their pursuit of higher education.^[171] As a result, those who enter higher education may not be as academically well-prepared as their cohorts from wealthier schools.^[172] Students from poorer schools may also require remedial help, which increases the cost of their education.^[173] Others may drop out prior to obtaining a degree—a phenomenon that has increased since the COVID-19 pandemic.^[174] These students are worse off than if they never entered higher education because they may have to repay student loans without the benefit of a higher paying job.^[175] In those cases, individuals will have been relegated to a lifetime of indentured servitude because their loans are all but impossible to discharge in bankruptcy, there is an unlimited statute of limitations on collection, and creditors can reach their Social Security and disability benefits.^[176]

Direct Funding: Pell Grants

One of the major forms of federal financial assistance for lower income students is the Pell Grant—a need-based grant available upon application.^[177] Because of the Pell Grant’s status as a grant, it does not have to be repaid. The grant is awarded through the U.S. Department of Education (DOE) and is the DOE’s largest grant program,^[178] enabling millions of lower income students to further their education.^[179] The grant can be used to pay tuition, fees, room and board, and other costs of higher education.^[180] If the grant is used to pay the costs of room and board, however, that portion of the grant becomes taxable.^[181]

While the grant was initially awarded to incarcerated students, this access was restricted in 1992 when Congress reauthorized the HEA and prohibited those on death row and those serving a life sentence without the possibility of parole from receiving the grant.^[182] In 1994, as part of the Violent Crime Control and Law Enforcement Act,^[183] Congress prohibited incarcerated individuals from accessing Pell Grants altogether,^[184] even though studies showed inmates who took advantage of educational opportunities while incarcerated were less likely to become recidivists.^[185]

Four years later, as part of the seventh reauthorization of the HEA and its tough-on-crime ideology, Congress suspended eligibility for any federal grants, loans, or work-study assistance—including Pell Grants—for any person convicted of a drug-related offense.^[186] This was counterproductive because it deprived those convicted of drug-related offenses from obtaining federal financial assistance to pursue an education. Without such an education, these individuals may have no incentive to turn their lives around and, instead, might be relegated to a lifetime of crime. In his 2015 State of the Union Address, President Obama proposed a program entitled America’s College Promise that would have made sweeping changes to federal funding for higher education, such as providing free community college.^[187] Also among those changes was a proposed pilot program, called Second Chance Pell, to restore Pell Grants to incarcerated individuals.^[188] This program was implemented by the DOE in 2016, with twenty-six states participating.^[189] In 2020, the DOE expanded the program to include 130 colleges in forty-two states and the District of Columbia.^[190]

In 2016, the Obama Administration implemented a policy to protect students, many of whom were minorities, who had been defrauded by for-profit schools.^[191] Under this policy, those students would have a defense to repayment of their loans and would be able to recoup their Pell Grants, which were otherwise only available for a total of six years.^[192] This policy was in response to for-profit schools, such as Corinthian Colleges, defrauding students, declaring bankruptcy, and leaving students saddled with student loan debt and worthless degrees, or in some cases with no degree.^[193] Under the Trump Administration, Secretary of Education Betsy DeVos fought the policy, attempting to delay its implementation and narrow its focus by providing only partial relief to some borrowers.^[194] She delayed processing many claims, ultimately allowing a backlog of over 200,000 claims to accumulate.^[195] However, she was sued over these tactics and lost.^[196] Secretary DeVos then agreed to stop issuing any further claim denials.^[197] In 2019, the Trump Administration issued a revised form of the policy, which narrowed the Obama Administration’s definition of fraud and made it more difficult for borrowers to obtain relief.^[198] Both chambers of Congress rejected the proposal, but the rejection was vetoed by President Trump^[199] and became effective July 1, 2020.^[200]

At the end of 2020, Congress agreed on a $2.3 trillion spending bill, which contained three provisions restoring Pell Grant benefits to certain individuals.^[201] This bill restored benefits to incarcerated individuals, repealed the law restricting federal financial aid to those convicted of a drug crime, and restored Pell Grant eligibility to students who had been defrauded by their colleges.^[202] The bill also streamlined the FASFA application, making it easier for students to apply for federal aid.^[203] After a delay, President Trump finally signed the bill on December 27, 2020.^[204]

The problem is that Pell Grants have failed to keep up with the rising cost of tuition, so their significance has declined each year as tuition costs have increased.^[205]President Biden has proposed to double the amount of Pell Grants to restore their significance and help lower income students afford the high cost of college.^[206] If President Biden’s efforts are successful, Pell Grants will allow more minority and lower income students to better afford the cost of higher education, although still on an unlevel playing field.

Direct Benefits: Student Loans

Education is very expensive, and most students cannot afford it without financial assistance. Thus, most students borrow to attend college,^[207] although studies have shown that minorities, particularly Blacks, shoulder disproportionately high burdens of student loan debt.^[208] This is not surprising considering minorities generally take on more debt to obtain a degree—if they obtain one at all—than their white cohorts.^[209] Further, because of the disadvantages that minorities face in K-12 education, they often pay more for higher education.^[210]

The student loan program is the largest program of federal financial assistance for higher education.^[211] Currently, 44.7 million Americans hold student loan debt, and the total amount of this debt
($1.64 trillion) exceeds American credit card debt.^[212] In the class of 2019, 69% of students had student loans averaging almost $30,000 per student, including both federal and private loans.^[213]

Federal loans are more advantageous than private loans because they carry a lower interest rate and do not require repayment until the borrower graduates or leaves school. In the case of a low-income borrower, a federally subsidized loan may be available in which the government pays the interest on the loan while the borrower is in school.^[214] If the borrower dies or becomes disabled prior to paying the loan, the remaining balance may be forgiven tax free.^[215] Additionally, those working in certain types of public service jobs may qualify for tax-free loan forgiveness.^[216]

But many of those who have already incurred massive student loan debt must rethink their life choices, such as marriage, children, homeownership, business ventures, and retirement savings.^[217] This is because federal loans are virtually impossible to discharge in bankruptcy;^[218] there is no statute of limitations on collection;^[219] and upon default, the government may be able to reach the borrower’s social security benefits, disability benefits, or both.^[220] While these provisions are favorable for creditors, the benefit creditors receive is not shared with borrowers in the form of interest rate reductions or abatements of loan origination fees.^[221]

Under the Internal Revenue Code, certain amounts of loan forgiveness, including amounts forgiven under the Public Service Loan Forgiveness Program, are not considered taxable income.^[222] But other amounts are, including amounts forgiven in an income-driven repayment plan—a popular type of student loan repayment plan.^[223] Loan forgiveness in these plans is earned through extended payments.^[224] Whereas the standard repayment plan requires payments over a ten-year period, the income-driven plan requires extended payments over a twenty- to twenty-five-year period, depending on the plan.^[225] Because borrowers pay greater interest under the income-driven repayment plan’s extended repayment period, the remaining balances of their loans are forgiven at the end of that period. However, these borrowers may be surprised by a tax bill on the remaining amount.^[226]

Minorities are likely to be overrepresented in income-driven repayment plans as the monthly payments are lower, although the total interest is higher.^[227] Because minorities frequently face discrimination in the workforce, they often cannot afford the higher payments accompanying the ten-year standard plan.^[228] Thus, they are likely to be disproportionately impacted by the surprise tax bill at the end of their loan term.

President Biden has supported forgiving a portion of student loan indebtedness^[229]—a proposal that has, not surprisingly, garnered supporters and detractors. Detractors argue the borrowers promised to repay their loans, and morally, they should be held to their promises.^[230] They further argue that forgiving debt would create a moral hazard where future borrowers may overborrow in expectation of a government bailout. Others argue it is unfair both to those who have paid their debts and to taxpayers who will ultimately foot the bill, especially noting those with a college degree tend to earn more.^[231]

Supporters of the proposal argue that, while a college degree is supposed to lead to higher wages, this is not always the case—or at least the opportunities are not equally distributed. Because minorities and first-generation students often face challenges in the labor market due to deficient educational backgrounds, discrimination, and wage gaps, these students also tend to encounter heightened struggles in loan repayment.^[232] These difficulties have been highlighted during the COVID-19 pandemic. Moreover, lessening the student loan debt burden, particularly among minorities and lower income individuals “could accelerate . . . a more diverse and robust middle class.”^[233]

If President Biden’s proposal is adopted without a corresponding change in the Internal Revenue Code, loan forgiveness could trigger the surprise tax bill for these borrowers. Under the Code, insolvent borrowers will not face a tax bill upon forgiveness of their debt,^[234] and neither will those whose debts are forgiven due to death or total and permanent disability.^[235] Others, however, must include the amount of the forgiveness in their income and pay a tax on that amount. Senators Charles Schumer and Elizabeth Warren have issued a resolution encouraging President Biden to use his executive authority to fix this problem.^[236] It is debatable, though, whether this would work.^[237]

Indirect Funding: Tax Incentives and Their Consequences

Tax benefits, for the most part, are very inefficient means to help families afford the cost of higher education. For example, tax savings incentives can be worthwhile because they encourage some families to start saving for their children’s highereducation. But the problem is that tax laws are not designed to encourage those who really need to start saving early: those in the lower, lower-middle, and middle income levels. Instead, they are designed to primarily benefit those in the upper-middle and upper income levels.

The Taxpayer Relief Act of 1997 was enacted during the Clinton Administration as a bipartisan effort to encourage college enrollment by providing five new tax incentives^[238] while also broadening and extending other education tax incentives.^[239] This Act shifted federal funding for higher education from direct assistance through scholarships, grants, work-study programs, and low-interest loans to indirect benefits through the Internal Revenue Code. Tax incentives have discrete advantages, particularly for middle and higher income taxpayers,^[240] but they are less beneficial for lower income taxpayers.

Although many tax incentives are available to help defray the cost of higher education, they include every type of tax benefit—from exclusions, to deductions, to credits—and, thus, are very complex.^[241] As a result, many lower income individuals, who cannot afford professional tax advice, may forego benefits simply because they are not aware of them or do not understand how they work.^[242]

Gifts

The tax benefit of gifts is not a “pure” education tax benefit—that is, one designated specifically for education. Nevertheless, it can provide a variety of tax benefits for education. Students who are fortunate enough to afford the cost of higher education not only benefit financially but also, because this amount is considered a gift, do so free of an income tax.^[243] This is one of many benefits from gifts to fund education, but the extent of the benefit depends on how the gift is paid.

Currently, a donor can give up to $15,000 annually to a person without having to pay a gift tax on that amount.^[244] The donor will, however, be responsible for the gift tax on anything over that amount, although the tax can be deferred by crediting it against the unified estate and gift tax credit.^[245] On the contrary, if the donor pays a tuition gift directly to a school or college, no gift tax is owed on that amount even if it exceeds $15,000.^[246]

If the donor is a grandparent who pays tuition directly to a college or university, that grandparent can transfer a significant amount of money out of his or her taxable estate and avoid the generation-skipping tax that would normally apply to a donative transfer from a grandparent to a grandchild.^[247]

Most pure education tax benefits have rules against “double dipping.” These rules, also known as “no-double-benefit” rules, prevent any qualified education expenditure from being used twice to obtain a benefit, such as an exclusion, deduction, or credit.^[248] Thus, a taxpayer cannot obtain double tax benefits for the same expenditure. So, for instance, if the American Opportunity Tax Credit (AOTC) is used to obtain a tax credit of $2,500 based on a $4,000 expenditure of tuition, that $4,000 expenditure must be subtracted from other qualified expenditures if the taxpayer wishes to take advantage of another education tax provision.^[249] This rule applies to all tax benefits for current education with the sole exception of gifts.^[250] Therefore, even though the recipient paid no income taxes on the gift and the donor paid no gift taxes and may have avoided some estate taxes, the amount of that gift, if paid for tuition, constitutes a “qualified expense” that may be used to obtain another education tax benefit.^[251]

In addition to the gift-tax- and income-tax-free amount that may be paid directly to the educational institution, the donor may also give up to $15,000 tax-free to the donee in the same year.^[252] Obviously, these exclusions operate to the advantage of wealthier taxpayers who can afford to pay educational expenses for their children or grandchildren.

Scholarships, Fellowships, and Grants

While government scholarships, fellowships, and grants are direct benefits from the federal government, they also provide some indirect benefits through tax advantages. Under the Internal Revenue Code, scholarships, fellowships, and grants, such as the Pell Grant, are exempt from taxation as long as they constitute a “qualified scholarship.”^[253] A qualified scholarship is a scholarship, fellowship, or grant that is used in accordance with its terms on “qualified tuition and related expenses.”^[254] Qualified tuition and related expenses include tuition and fees required for enrollment or attendance at a qualified educational institution, as well as fees, books, supplies, and equipment used in one’s course of study.^[255] While this covers a multitude of expenses, it does not cover room and board.^[256] Thus, if any of the proceeds from a qualified scholarship, fellowship, or grant are used to pay room and board, that amount becomes taxable. Because room and board are, for most students, unavoidable costs of higher education, the government should not be able to claw back part of a scholarship, fellowship, or grant if any portion is spent on room and board. Pell recipients are, by definition, among those least able to afford the taxes inadvertently triggered if their grants are used to offset the cost of room and board.^[257] Thus, current law provides some protection for these recipients by requiring the grant first be spent on qualified tuition and fees.^[258] This enables the grant to be used to its maximum tax advantage without onerous recordkeeping. The problem, though, is that the no-double-benefit rule reduces the amount of qualified expenses that may be used for other tax-favored benefits, including the AOTC—a partially refundable tax credit^[259]—which may be more beneficial to the Pell recipient.

This is in comparison to the treatment of gifts, in which the rule does not apply.^[260] Thus, students whose families can afford to make tuition gifts will not have to pay any tax on the gifts,^[261] nor will they have to reduce the qualified expenses that were paid with the gifts.^[262] In this way, they get a double tax benefit that is not allowed for lower income students, such as Pell recipients and others whose families cannot afford to make such gifts.

Qualified Tuition Plans

Another popular education tax benefit is the qualified tuition program (QTP)—a savings plan also known as a 529 plan.^[263] This plan is created and maintained by a state or educational institution, which allows an individual to contribute to an account or prepay college expenses that will accumulate tax-free interest over time.^[264] While there is no set limit on contribution to these plans, contributions are considered gifts subject to the gift and generation-skipping taxes.^[265]However, a special rule shields contributions of up to $75,000 made in a single year from gift and generation-skipping taxes by spreading the $15,000 annual per donee gift tax exclusion over a five-year period.^[266]When beneficiaries begin college, they may withdraw money tax-free to pay qualified expenses.^[267] Since 2018, up to $10,000 worth of distributions may be used to pay K-12 private school expenses.^[268] Thus, Congress has provided a tax benefit to encourage wealthier families to abandon public schools and enroll their children in private or religious schools. This will solidify the further decay of public schools, particularly those in lower property-tax valued areas.

The term “qualified expense” has a broader meaning under this plan than under other pure education tax benefits because it includes books, supplies, equipment (in certain cases a computer),^[269]and room and board in addition to tuition and fees, provided the beneficiary is attending school on at least a half-time basis.^[270] This benefit does not follow the rule of scholarships, fellowships, and grants where any amount spent on room and board becomes taxable.^[271] Thus, if any portion of a QTP distribution is spent on room and board, it remains tax-free.^[272] Because those who are able to take full advantage of QTPs are generally in higher income levels, it is inequitable to allow a tax-free benefit in these scenarios while not providing the same benefit to those who are less well off, such as Pell Grant beneficiaries. If a QTP distribution is not used for a qualified expense, that amount becomes taxable at the beneficiary’s tax rate.^[273]

Amid the current pandemic, those who were financially able to invest in QTPs have seen their investment grow while being held in the plan.^[274] As a result, they now have a safety net—the size of which will depend on when they started investing in the plan—whereas lower income families who could not afford to invest in these plans and now may be jobless due to the pandemic likely have no safety net for their children’s education.

A QTP is not feasible for lower income and lower-middle income families as some of these plans charge fees.^[275] For those with only a small amount of disposable income to contribute, fees can make a noticeable difference. Also, investing in these plans is subject to risk and may fluctuate with the market.^[276] The possibility of a downward fluctuation may dissuade lower income families from investing.^[277]QTPs have been criticized for providing tax-free savings accounts for individuals whose children would have gone to college anyway such that taxpayers are not getting much for their money.^[278]

Series EE and I Savings Bonds

While there are fifteen assorted tax benefits for education,^[279] the most advantageous savings device for lower income individuals is the Series EE and I savings bonds. These bonds are specifically designated for education, and they are backed by the full faith and credit of the United States government, producing a safe, secure investment that is not subject to market risk.^[280]They have very low phaseout limits,^[281]so they are specifically designed for lower income taxpayers. The bonds can easily be purchased in amounts from $25 up to $10,000 in any one taxable year.^[282]There are no fees associated with their purchase or redemption.^[283]Like the QTP, the interest on these bonds accumulates tax-free,^[284]and the accumulation is also tax-free if the bonds are redeemed to pay qualified higher education expenses,^[285] making them ideal for lower income investors.

However, there are some severe and illogical restrictions on these bonds. They must be purchased by an adult over the age of twenty-four and can be redeemed only by the original purchaser, except in the case of the death.^[286]The problem with this is that the low phaseout limits apply to the modified gross income of the bondholder at the time the bonds are redeemed.^[287]If the bonds are kept for ten or twenty years to maximize the investment, the purchaser’s income may have increased above the phaseout limit, which means the bonds will become taxable when redeemed and thus provide little to no benefit.^[288]Another restriction is that the term “qualified higher education expenses” has a very narrow definition for this purpose, covering only tuition and fees.^[289] Under the no-double-benefit rule, as with other education tax benefits (except gifts), if the bond proceeds are used to pay qualified expenses, the taxpayer must reduce the amount of qualified expenses eligible for other education tax benefits.^[290]

New State Incentive Programs

Studies show that children with a college savings account are three times more likely to attend college.^[291] Because of this, at the end of 2020, Illinois announced a new higher education program to encourage parents to contribute to college funds for their children.^[292] Under this program, the state will contribute $50 into a 529 plan for every child born or adopted in the state after 2020.^[293] The money will accumulate interest tax-free, and if the child ultimately does not enroll in college, the money will be forfeited back to the state to the extent of the original $50 plus its interest-free accumulation.^[294] The money can be used not only for traditional four-year colleges but also for vocational schools, two-year colleges, and private schools.^[295] Several other states have similar programs.^[296]

Critics of the Illinois program argue it will initially cost the already cash-strapped state $8 million to establish and then $1.5 million per year afterward—money that can be better used elsewhere.^[297] They also argue $50 is not much money, and if parents do not contribute to the plan, even over an eighteen-year period, this amount is likely to have grown only to around $150—not much of an incentive.^[298] However, the plan is likely to incentivize many parents to contribute, and if so, that would make the state’s investment worthwhile.

Conclusion

Minorities and other lower income individuals often find that, at every level of education, there are inequities that make the playing field uneven. At the K-12 education level, discriminatory funding practices have caused huge disparities in quality of facilities, resources, and materials between poorer and wealthier schools. These and other discriminatory practices have also resulted in segregated schools despite tremendous efforts in the 1950s and 1960s to end segregation. When minorities and other lower income students receive a substandard education, they graduate unequipped and unprepared for higher education. These students then either opt out of higher education altogether or struggle to obtain a degree, if indeed they obtain one at all. Assuming they enter higher education, these students are then burdened with student loan debt that they struggle to repay because inequities persist in the labor market and workforce, where they may face discrimination in hiring and promotions as well as wage gaps. This affects the national economy because it reduces the amount of skilled and educated workers and prevents the accumulation of wealth by minorities, which would produce higher tax revenues. It is also detrimental to democracy in general because it creates a divisive system of haves and have-nots. Amidst the COVID-19 pandemic, inequalities in facilities, protective equipment, quality of teachers, and availability of computers and internet access have even further highlighted the unfairness of K-12 funding in many states.

At the higher education level, Pell Grants are an attempt to level the playing field for lower income students. But as time has gone by, the grant amount has failed to keep pace with rising costs of higher education; grant access has been restricted for certain individuals; and any grant amount spent on room and board (an authorized expenditure) is included in the recipient’s taxable income, making the tax on that amount repayable to the government. The 2020 year-end spending bill, signed into law by President Trump on December 27, 2020, made positive changes to the Pell program by lifting restrictions on the availability of the grant and making the application process easier. This change will also benefit students applying for federal education loans.

QTPs, which offer huge tax savings for higher income families, incentivize those who do not need incentivizing. This is inefficient because, if their purpose is to provide a tax benefit to individuals whose children would have gone to college anyway, the foregone revenue from the benefit is unjustified.^[299]

In general, education tax incentives fail to encourage lower income families to save toward their children’s higher education. The
Series EE and I savings bonds, which offer limited tax advantages and could be a useful savings device for lower income families, have severe limitations. The new higher education plans that several states have implemented to encourage college savings represent positive change for lower income families, encouraging these families to save for their children’s education by providing tax-free accumulation of interest on their savings.

Due to the COVID-19 pandemic, many students will seek financial assistance for higher education.^[300] Because of this phenomenon and because the education gap between lower income and higher income individuals has widened, Congress should focus on lower income students in the next reauthorization of the HEA.^[301] In doing so, assistance to lower income students should not be regarded as a handout but rather as an investment in the future of America.

1. * Ernest P. Rogers Professor of Law Emerita, University of Georgia School of Law. The author gratefully acknowledges the invaluable assistance of Nikko Terry. ↑

2. . Malcolm X, Address at the Audubon Ballroom in Manhattan (June 28, 1964). ↑

3. . See, e.g., Chitra Reddy, Why Education Is Important? Top 13 Reasons, Wisestep, https://content.wisestep.com/education-important-top-reasons [https://perma.cc/FT88-R3H8]; Understanding the Importance of Education, Laws (Dec. 23, 2019), https://education.laws.com/importance-of-education [https://perma.cc/ZRH3-KEEH]. ↑

4. . See Peter Cunningham, Education and the American Dream, Real Clear Educ. (Apr. 3, 2017), https://www.realcleareducation.com/articles/2017/04/03/education_and_the_

   american_dream_110138.html [https://perma.cc/J3FU-4M8R]. ↑

5. . See, e.g., Harry A. Patrinos, Why Education Matters for Economic Development, World Bank Blogs (May 17, 2016), https://blogs.worldbank.org/education/why-education-matters-economic-development [https://perma.cc/5YEQ-CZRE]; Brent Radcliffe, How Education and Training Affect the Economy, Investopedia (Aug. 19, 2020), https://www.investopedia.com/articles/economics/09/education-training-advantages.asp [https:

   //perma.cc/5XJG-RKEV]; J. Merritt Melancon, Each College Graduate Adds $2M to Georgia’s GDP, UGA Today (Nov. 11, 2020), https://news.uga.edu/selig-each-grad-adds-2m-state-gdp [https://perma.cc/6FE8-78TE]. ↑

6. . San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 18 (1973). ↑

7. . Rodriguez, 411 U.S. at 35 (“Education, of course, is not among the rights afforded explicit protection under our Federal Constitution.”); see also Derek Black, Opinion, Federal Court Delivers Holy Grail of Education Advocacy: A Fundamental Right to Basic Education. Don’t Count on Supreme Court to Uphold It, Wash. Post (Apr. 29, 2020, 7:00 AM), https://www.washingtonpost.com/education/2020/04/29/federal-court-delivers-holy-grail-education-advocacy-fundamental-right-basic-education-dont-count-supreme-court-uphold-it/ [https://perma.cc/YQ8U-LUEZ] [hereinafter Federal Court Delivers Holy Grail of Education Advocacy]. But see Derek W. Black, The Fundamental Right to Education, 94 Notre Dame L. Rev. 1059, 1078 (2019) (arguing that, under the doctrine of originalism, the Founders considered education to be fundamental—a view that persisted during and after the framing of the Fourteenth Amendment). ↑

8. . See Federal Court Delivers Holy Grail of Education Advocacy, supra note 6 (stating that, because education is not considered a fundamental right, “funding inequalities between poor and rich districts are constitutionally irrelevant”). But see Rodriguez, 411 U.S. at 58 (“The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax.”). Yet the Court also held that wealth is not a suspect classification, so the fact that the Texas funding scheme discriminated among school districts based on wealth did not merit heightened scrutiny from the Court. Id. at 28. ↑

9. . 347 U.S. 483, 495 (1954) (holding that “in the field of public education the doctrine of ‘separate but equal’ has no place”). ↑

10. . See Civil Rights Act of 1964, Pub. L. No. 88-352, § 402, 78 Stat. 241, 247. See generally Camilla E. Watson, Federal Financing of Higher Education at a Crossroads: The Evolution of the Student Loan Debt Crisis and the Reauthorization of the Higher Education Act of 1965, 2019 Mich. St. L. Rev. 883 (discussing the enactment and evolution of the Higher Education Act of 1965). For discussion of the Elementary and Secondary Act of 1965 and the Higher Education Act of 1965, see infra notes 157–160 and accompanying text. ↑

11. . See Ailsa Chang & Jonaki Mehta, Why U.S. Schools Are Still Segregated—And One Idea to Help Change That, NPR (July 7, 2020, 6:58 PM), https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/07/07/888469809/how-funding-model-preserves-racial

    -segregation-in-public-schools [https://perma.cc/X4FM-DASE]. An investigation into school funding inequities showed the lasting impacts of Milliken v. Bradley, 418 U.S. 717 (1974), in which the “Supreme Court ruled that if a school district line is drawn anywhere for almost any reason . . . . desegregation doesn’t have to cross that border.” Id. ↑

12. . See Laura Meckler, Report Finds $23 Billion Racial Funding Gap for Schools, Wash. Post (Feb. 26, 2019), https://www.washingtonpost.com/local/education/report-finds-23-billion-racial-funding-gap-for-schools/2019/02/25/d562b704-3915-11e9-a06c-3ec8ed509d15_

    story.html [https://perma.cc/HFA5-ZKPU]. In 2016, wealthier districts received more than $7,000 per student (overall more than $77 billion), while poorer districts received around $4,500 per student (about $54 billion overall). Id. ↑

13. . See Ceila Miller, High School Dropout Rate, EDUCATIONDATA.ORG (Nov. 6, 2019), https://www.educationdata.org/high-school-dropout-rate [https://perma.cc/N84A-X3Z

    G] (finding a direct correlation between low socioeconomic status and high school dropout rates); see also Grace Chen, Decreasing Budgets Mean Increasing Dropouts in Public Schools, Pub. Sch. Rev. (Aug. 4, 2020), https://www.publicschoolreview.com/blog/decreasing-budgets-mean-increasing-dropouts-in-public-schools [https://perma.cc/UF45-B68R]. ↑

14. . U.S. Dep’t of Educ., Learning Without Limits: An Agenda for the Office of Postsecondary Education 15 (2000), https://www2.ed.gov/offices/OPE/AgenProj/report/

    AgendaProjectReport.pdf [https://perma.cc/7NEN-ZRG8]. ↑

15. . Id. ↑

16. . See, e.g., Martha Ross & Nicole Bateman, Millions of Young Adults Have Entered the Workforce with No More Than a High School Diploma, Brookings: The Avenue (Jan. 31, 2018), https://www.brookings.edu/blog/the-avernue/2018/01/31/millions-of-young-adults-have

    -entered-the-workforce-with-no-more-than-a-high-school-diploma/ [https://perma.cc/AAS3-E

    L5W]. ↑

17. . See Elissa Nadworny & Clare Lombardo, ‘I’m Drowning’: Those Hit Hardest by Student Loan Debt Never Finished College, NPR (July 18, 2019, 4:25 PM), https://www.npr.org/2019/07/18/739451168/i-m-drowning-those-hit-hardest-by-student-loan-debt-never-finished-college [https://perma.cc/4UGM-MWUY]. ↑

18. . See, e.g., Danyelle Solomon et al., Systematic Inequality and Economic Opportunity, Ctr. for Am. Progress (Aug. 7, 2019, 7:00 AM), https://www.americanprogress.org/issues/race/reports/2019/08/07/472910/systematic-inequali

    ty-economic-opportunity/ [https://perma.cc/YH7Q-2NZN]; Becky Strauss, Battling Racial Discrimination in the Workplace, D.C. Pol’y Ctr. (Jan. 24, 2019), https://www.dcpolicycenter.org/publications/battling-racial-discrimination-in-the-workplace/ [https://perma.cc/2NTA-ACTX]. ↑

19. . See Mike Konczal, Student Loans Are the New Indentured Servitude, The Atlantic (Oct. 12, 2009), https://www.theatlantic.com/business/archive/2009/10/student-loans-are-the-new-indentured-servitude/28235/ [https://perma.cc/4GHS-28ZE]. ↑

20. . See Shankar Vedantam, How Student Debt Affects Personal Choices of Young People, NPR (June 8, 2016, 5:10 AM), https://www.npr.org/2016/06/08/481206896/how-student-debt-affects-personal=choices-of-young-people [https://perma.cc/SL64-AW5H]. ↑

21. . See Alana Semuels, Good School, Rich School; Bad School, Poor School, The Atlantic (Aug. 25, 2016), https://www.theatlantic.com/business/archive/2016/08/property-taxes-and-unequal-schools/497333/ [https://perma.cc/E7HK-EFWY]; Derrell Bradford & Marc Porter Magee, Opinion, COVID-19 Has Made Inequality in Education Worse. Here’s How to Address the Problem., USA Today (Aug. 27, 2020, 9:32 AM), https://www.usatoday.com/story/opinion/2020/08/27/covid-19-has-widened-americas-educatio

    n-gap-heres-how-to-fix-column/5631401002/ [https://perma.cc/9CPT-QJSA]. ↑

22. . See generally infra note 240. ↑

23. . See infra notes 239–241 and accompanying text. ↑

24. . See sources cited infra note 178 and accompanying text. ↑

25. . See Patrick Sharkey et al., Opinion, The Gaps Between Black and White America, In Charts, N.Y. Times (June 19, 2020), https://www.nytimes.com/interactive/2020/06/19/opinion/

    politics/opportunity-gaps-race-inequality.html [https://perma.cc/8X9P-3UVU]. These are not the only policies that have contributed to gaps between Blacks and whites. Others include discriminatory housing and banking policies and aggressive policing and prosecution. Id.; see also infra notes 44, 80, and accompanying text. ↑

26. . See Claire Hansen, The U.S. Population Is Getting Older, Richer and Less White, U.S. News & World Rep. (Sept. 17, 2020, 12:01 AM), https://www.usnews.com/news/nationa

    l-news/articles/2020-09-17/the-us-population-is-getting-older-richer-and-less-white [https://per

    ma.cc/QM4T-S5JX]. For instance, according to the Census Bureau, 72.4% of Americans identified as white in 2010, compared to 72.2% in 2018, and 72% in 2019. Id. Of the white population in 2019, 60% identified as non-Hispanic or Latino—a smaller percentage than in previous years. Id. In 2019, 12.8% of the population identified as Black, which was up from 12.7% in 2018 and 12.6% in 2010. Id. These data are within the 0.1% margin of error. Id. For further discussion, see Alexandre Tanzi, U.S. Population Growth Has Been Driven Exclusively by Minorities, Bloomberg (July 6, 2020, 12:32 PM), https://www.bloomberg.com/news/article

    s/2020-07-04/u-s-population-growth-has-been-driven-exclusively-by-minorities [https://perma.

    cc/T3KA-GPF8]; Fear of a Black Planet: White People Becoming Minorities in America Sooner Than Expected, New Census Data Confirms, NewsOne (June 25, 2020), https://newsone.com/39 65535/white-people-american-minorities-census-data/ [https://perma.

    cc/N9TM-DBKM]. ↑

27. . Bruce D. Baker et al., The Real Shame of the Nation: The Causes and Consequences of Interstate Inequity in Public School Investments 4 (2018) ↑

28. . See Cory Turner et al., Why America’s Schools Have a Money Problem, NPR (Apr. 18, 2016, 5:00 AM), https://www.npr.org/2016/04/18/474256366/why-americas-schools-have-a-money-problem [https://perma.cc/87ZY-PG3V]. Most states fund schools as follows: 45% of funding is provided by the state, 45% is provided by local governments, and 10% is provided by the federal government. Id.; see Rebecca R. Skinner, Cong. Rsch. Serv., R45827, State and Local Financing of Public Schools 2 tbl.1 (2019). ↑

29. . See Serena Gordon, Why Are Blacks, Other Minorities Hardest Hit by COVID-19?, U.S. News & World Rep. (May 6, 2020, 12:00 PM), https://www.usnews.com/news/health-news/articles/2020-05-06/why-are-blacks-other-minorities-hardest-hit-by-covid-19 [https://per

    ma.cc/6GEN-WJY7]; Liz Mineo, Time to Fix American Education with Race-for-Space Resolve, Harv. Gazette (Apr. 10, 2020), https://news.harvard.edu/gazette/story/2020/

    04/the-pandemics-impact-on-education [https://perma.cc/35ZK-YDAV]. ↑

30. . See, e.g., Linda Darling-Hammond, America’s School Funding Struggle: How We’re Robbing Our Future by Under-Investing in Our Children, Forbes (Aug. 5, 2019, 1:43 PM), https://www.forbes.com/sites/lindadarlinghammond/2019/08/05/americas-school-funding-stru

    ggle-how-were-robbing-our-future-by-under-investing-in-our-children [https://perma.cc/87TT-

    W5H5]. ↑

31. . See, e.g., Carmel Martin et al., A Quality Approach to School Funding: Lessons Learned from School Finance Litigation, Ctr. for Am. Progress (Nov. 13, 2018, 12:01 AM), https://www.americanprogress.org/issues/education-k-12/reports/2018/11/13/460397/quality-approach-school-funding/ [https://perma.cc/A6P3-A8XQ]. ↑

32. . See Semuels, supra note 20. Generally, education was provided through churches in the north and plantation owners in the south. Id. ↑

33. . See infra notes 43–80 and accompanying text. ↑

34. . See Semuels, supra note 20. ↑

35. . Id. This tax was imposed against “visible” property, such as homes and livestock. Id. ↑

36. . See id. For instance, in 1700, the entire population of Massachusetts was only 55,941. Thirteen Colonies Population, World Pop. Rev., https://worldpopulationreview.com/states/

    thirteen-colonies [https://perma.cc/7G9S-XYDW]. ↑

37. . See Semuels, supra note 20. The amount to be levied and how it should be spent was determined by the town councils. Because the towns were not very large in the 1600s and 1700s, the townspeople had loud voices. Id. ↑

38. . See id. ↑

39. . See id. The language of these amendments varied among the states. ↑

40. . Id. ↑

41. . See id. ↑

42. . Id. ↑

43. . Id. ↑

44. . Id. ↑

45. . See Sharkey et al., supra note 24. See generally Mehrsa Baradaran, The Color of Money: Black Banks and the Racial Wealth Gap (2017) (providing the history of economic discrimination and segregation that led to the wealth gap between white and Black America). ↑

46. . See Sharkey et al., supra note 24. ↑

47. . Federal funding occurs through the appropriations process and is allocated to the states in varying amounts, primarily through the U.S. Department of Education. The two largest programs the federal government supports are Title I grants through the No Child Left Behind Act and special education grants through the Individuals with Disabilities Education Act (IDEA). These appropriations amount to around 12% of total funding for primary and secondary education. See School Funding and Resources, New America (2016), https://newamerica.org/

    education-policy/topics/school-funding-and-resources/school-funding/federal-funding/ [https://

    perma.cc/X2ZK-368N]. Additionally, federal money is appropriated to other causes, such supporting student achievement in low-income areas. See Overview of Funding for Pre-K-12 Education, Am. Speech-Language-Hearing Ass’n, https://www.asha.org/advocacy/school

    fundadv/overview-of-funding-for-pre-k-12-education/ [https://perma.cc/3QZD-A93E]. ↑

48. . Public School Revenue Sources, Nat’l Ctr. for Educ. Stat. (Apr. 2020), https://nces.ed.gov/programs/coe/indicator_cma.asp [https://perma.cc/JC2N-WR2W]. ↑

49. . While all fifty states and the District of Columbia rely on local property taxes to fund K-12 education, Hawaii (1.9%) and Vermont (4%) have the lowest reliance. See Rebecca R. Skinner, Cong. Rsch. Serv., R45827, State and Local Financing of Public Schools 3 tbl.2, 5 (2019). The property tax also funds roads, parks, and police protection. See Tracy Gordon, Critics Argue the Property Tax Is Unfair. Do They Have a Point?, Tax Pol’y Ctr. (Mar. 9, 2020), https://www.taxpolicycenter.org/taxvox/critics-argue-property-tax-unfair-do-they-have-point [https://perma.cc/J687-Y9D5]. ↑

50. . See, e.g., Chang & Mehta, supra note 10. ↑

51. . See id. ↑

52. . See Gordon, supra note 28. ↑

53. . See Richard Schmalbeck & Jay Soled, Opinion, Americans Have Civic Duty to Pay Taxes to Assist Nation in Crisis, The Hill (Apr. 17, 2020, 1:00 PM), https://thehill.com/opinion/finance/493334-americans-have-civic-duty-to-pay-taxes-to-assist-nation-in-crisis [https://perma.cc/X6ZP-F4K6]. ↑

54. . See Semuels, supra note 20. ↑

55. . See generally Ann Owens, Income Segregation Between School Districts and Inequality in Students’ Achievement, 91 Socio. Educ. 1 (Jan. 2018) (discussing income segregation between school districts). For instance, some districts may have high property values, but they also may have a large proportion of tax-exempt property, such as hospitals, educational institutions, churches, and charitable organizations. ↑

56. . See Urban Schools: The Challenge of Location and Poverty, Nat’l Ctr. for Educ. Stat., https://nces.ed.gov/pubs/web/96184ex.asp [https://perma.cc/J9KT-LHM3]; Danielle Farrie & David G. Sciarra, Educ. L. Ctr., Making the Grade 2020: How Fair Is School Funding in Your State?, at 1 (2020), https://www.edlawcenter.org/assets/MTG2020/Making

    _the_Grade_20202.pdf [https://perma.cc/9NM6-49Y3]. There are disparities among, as well as within, states. Bruce J. Biddle & David C. Berliner, A Research Synthesis/Unequal School Funding in the United States, Beyond Instructional Leadership, May 2002, at 49. ↑

57. . See Farrie & Sciarra, supra note 55, at 4 tbl.1, 7 fig.2. ↑

58. . Id. at 9 fig.3. ↑

59. . See id. at 7 fig.2, 8. ↑

60. . See Miller, supra note 12. ↑

61. . See Ember Smith & Richard V. Reeves, Students of Color Most Likely to Be Learning Online: Districts Must Work Even Harder on Race Equity, Brookings: How We Rise (Sept. 23, 2020), https://www.brookings.edu/blog/how-we-rise/2020/09/23 students-of-color-most-likely-to-be-learning-online-districts-must-work-even-harder-on-race-equity/ [https://perma.cc/

    B4B5-99EX]. Under normal circumstances, students from poorer school districts generally tend to have greater needs than students from wealthier districts. See Krista Watson, Why Schools in Rich Areas Get More Funding Than Schools in Poor Areas, Global Citizen (Aug. 3, 2016), https://www.globalcitizen.org/en/content/cost-of-education-in-us/ [https://perma.cc/YED9-MY

    VP]. A greater proportion of these students have learning disabilities, and substandard educational facilities put them so far behind wealthier cohorts that they may never catch up. Id. In the United States, 51% of public-school students are from lower income households. Id. ↑

62. . See Elizabeth Romanov & Dan Thatcher, School Officials Await Potential COVID-19-Related Budget Cuts, Nat’l Conf. of State Legislatures (Nov. 10, 2020), https://www.ncsl.org/research/education/school-officials-await-potential-covid-19-related-budget-cuts-magazine2020.aspx [https://perma.cc/9QMN-ERBB]. ↑

63. . See Helena Battipaglia, The Widening Achievement Gap and COVID-19: Education Expert Explains Far-Reaching Impact on Schools, Economy, WLWT5 (Dec. 16, 2020, 8:42 PM), https://www.wlwt.com/article/the-widening-achievement-gap-and-covid-19-education-expert-explains-far-reaching-impact-on-schools-economy/34995180# [https://perma.cc/7QT9-D5YP]. ↑

64. . See id. Initially, officials of Cincinnati Public Schools could not reach 5,000 of their 36,000 enrolled students. Id. As of October 2020, 500 students remained unreachable. Id. ↑

65. . See Bradford & Magee, supra note 20; Battipaglia, supra note 62. ↑

66. . Battipaglia, supra note 62. ↑

67. . Id. (detailing an interview with Mary Boat, the director of the University of Cincinnati’s School of Education). ↑

68. . Id. (same). ↑

69. . See Peter Cunningham, Commentary: The Failed Promise of Local Control, U.S. News & World Rep. (Mar. 23, 2018, 10:00 AM), https://www.usnews.com/news/the-report/articles/2018-03-23/commentary-the-failed-promise-of-local-control-of-schools [https://

    perma.cc/FY7H-DSXA]; see also Tara García Mathewson, New Data: Even Within the Same District Some Wealthy Schools Get Millions More Than Poor Ones, Hechinger Rep. (Oct. 31, 2020), https://hechingerreport.org/new-data-even-within-the-same-district-some-wealthy-scho

    ols-get-millions-more-than-poor-ones/ [https://perma.cc/KU9W-AHUS]. ↑

70. . See Jill Barshay, Rich Schools Get Richer, Hechinger Rep. (June 8, 2020), https://hechingerreport.org/rich-schools-get-richer [https://perma.cc/F8Y3-7VR2]. ↑

71. . See, e.g., James A. Rapp, 1 Education Law § 3.02 (2020). ↑

72. . See Meckler, supra note 11. ↑

73. . Id. ↑

74. . Vince Conti, Property Tax Revenues Hold Steady Amid Pandemic, Cape May Cnty. Herald (Oct. 30, 2020), https://www.capemaycountyherald.com/news/government/article_8

    16c37b0-1ab4-11eb-82bf-6f1d2c21c74a.html [https://perma.cc/2XYM-U34C]; Nat’l Conf. of St. Legislatures, Which States Rely on Which Tax 1, https://www.ncsl.org/docume

    nts/fiscal/WhichStatesRelyonWhichTax.pdf [https://perma.cc/C4ZF-LR9J]. ↑

75. . But see Matt Barnum, The Other School Funding Divide: States with More Poor Students Tend to Spend Less, Creating Hard to Fix Disparities, Chalkbeat (July 31, 2019, 2:24 PM), https://www.chalkbeat.org/2019/7/31/21121027/the-other-school-funing-divide-stat

    es-with-more-poor-students-tend-to-spend-less-creating-hard-to-fix-disparities [https://perma.

    cc/63QX-LDD2] (noting that funding varies among states and further noting that states with more low-income students tend to spend less on education). ↑

76. . See Note, The Misguided Appeal of a Minimally Adequate Education, 130 Harv. L. Rev. 1458, 1460–61 n.25 (2017); Trish Brennan-Gac, Educational Rights in the States, Am. Bar Ass’n. (Apr. 1, 2014), https://www.americanbar.org/groups/crsj/publications/human_

    rights_magazine_home/2014_vol_40/vol_40_no_2_civil_rights/educational_rights_states/ [https://perma.cc/9SCE-PYUP]; see, e.g., Serrano v. Priest, 487 P.2d 1241, 1244, 1258 (Cal. 1971) (holding that education is a fundamental interest under the California constitution). ↑

77. . Brennan-Gac, supra note 75. ↑

78. . Mark A. Elgart, Student Success Comes Down to Zip Code, HuffPost (May 25, 2016, 4:54 PM), https://www.huffpost.com/entry/too-often-student-success_b_10132886 [https://perma.cc/DNX9-D8PX] (discussing a study conducted by sociologist Ann Owens of the University of Southern California). ↑

79. . See Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality 754–55 (2d ed. 2004). ↑

80. . See Kevin Carey, School District Borders Can Worsen Inequality. These Students Are Fighting for a Better Education, Time (Feb. 20, 2020), https://time.com/5783920/school-districts-inequality-education [https://perma.cc/7Q56-GRLL]; Clare Lombardo, Why White School Districts Have So Much More Money, NPR (Feb. 26, 2019, 2:00 PM), https://www.npr.org/2019/02/26/696794821/why-white-school-districts-have-so-much-more-money [https://perma.cc/38QS-A6AX]. ↑

81. . See Lombardo, supra note 79. In many instances, these district lines were drawn in a discriminatory way to separate lower income Blacks from wealthier Blacks and whites. See, e.g., Laura Meckler & Kate Rabinowitz, The Lines That Divide: School District Boundaries Often Stymie Integration, Wash. Post (Dec. 16, 2019), https://www.washingtonpost.com/education

    /2019/12/16/lines-that-divide-school-district-boundaries-often-stymie-integration/ [https://per

    ma.cc/MF3M-6QZF]. The placement of interstate highways also contributed to the phenomenon of keeping poorer Blacks contained within a specified area. See Sharkey et al., supra note 24. ↑

82. . San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 5­­–6 (1973). Specifically, Rodriguez sued the State Board of Education, the Commissioner of Education, the state attorney general, and the Bexar County (San Antonio) Board of Trustees. Id. at 5. ↑

83. . See Brief for Appellees at 11, 20–21, Rodriguez, 411 U.S. 1 (No. 71-1332) (stating that the Edgewood school district could not afford certain teaching aids and could not properly maintain its buildings). ↑

84. . Rodriguez, 411 U.S. at 11–13. ↑

85. . See id. at 47. ↑

86. . See Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp. 280, 282–86 (W.D. Tex. 1971) (per curiam). ↑

87. . Id. at 284. ↑

88. . Rodriguez, 411 U.S. at 37–38. Under strict scrutiny, the district court held that the Texas system could be sustained only if “the [State could] demonstrate a compelling state interest that [was] promoted by the . . . . classifications created under the financing scheme.” Rodriguez, 337 F. Supp. at 283. ↑

89. . Rodriguez, 411 U.S. at 18. The Court also referred to “the vital role of education in a free society,” citing several of its opinions. Id. at 30. ↑

90. . Id. at 28. ↑

91. . Id. at 37–38. ↑

92. . Id. at 40. ↑

93. . Id. at 49. ↑

94. . Id. at 50. ↑

95. . Id. at 51 (quoting McGowan v. Maryland, 366 U.S. 420, 426 (1961)). Justice Stewart, in a concurring opinion, acknowledged that “[t]he method of financing public schools in Texas, as in almost every other State, has resulted in a system of public education that can fairly be described as chaotic and unjust.” Id. at 59 (Stewart, J., concurring). But then, he added that the Texas system must be validated because it “impinges upon no substantive constitutional rights or liberties.” Id. at 62. ↑

96. . Id. at 62 (Brennan, J., dissenting) (internal quotation marks omitted). ↑

97. . Id. at 63. ↑

98. . See Brian P. Smentkowksi, Earl Warren, Encyc. Britannica (July 5, 2020), https://www.britannica.com/biography/Earl-Warren (last visited Apr. 12, 2021). ↑

99. . For the circumstances surrounding Chief Justice Warren’s resignation and the appointment of Chief Justice Burger, see Ed Cray, Chief Justice: A Biography of Earl Warren 496–514 (1997). ↑

100. . See Bob Woodward & Scott Armstrong, The Brethren: Inside the Supreme Court 157–61 (1979). ↑

101. . Linda Greenhouse, Lewis Powell, Crucial Centrist Justice, Dies at 90, N.Y. Times (Aug. 26, 1998), https://www.nytimes.com/1998/08/26/us/lewis-powell-crucial-centrist-justice-dies-at-90.html [https://perma.cc/4VMX-E489]. ↑

102. . See John C. Jefferies Jr., Justice Lewis F. Powell, Jr. 168–69 (1994); Jill Lepore, Is Education a Fundamental Right?, The New Yorker (Sept. 3, 2018), https://thenew

     yorker.com/magazine/2018/09/10/is-education-a-fundamental-right [https://perma.cc/7KA3-Y

     BCU]. ↑

103. . Id. ↑

104. . San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 64 (1973) (White, J., dissenting). ↑

105. . Id. ↑

106. . Id. at 65. ↑

107. . Semuels, supra note 20. ↑

108. . Andrea Sachs, The Worst Supreme Court Decisions Since 1960, Time (Oct. 6, 2015), https://time.com/4056051/worst-supreme-court-decisions/ [https://perma.cc/UNL3-E3W]. Dean Erwin Chemerinsky stated the decision “played a major role in creating the separate and unequal schools that exist today.” Id. Professor Steven H. Shiffrin stated the decision “has permitted millions of children to be imprisoned in a system of educational inequality.” Id. ↑

109. . In fact, Justice Brennan advocated this in an article he published in the Harvard Law Review in the aftermath of Rodriguez. See William J. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977). ↑

110. . See Semuels, supra note 20; see also Separate and Unequal: Serrano Played An Important Role in the Development of School District Policy, FindLaw (Jan. 2, 2018), https://corporate.findlaw.com/law-library/separate-and-unequal-serrano-played-an-important-role-in.html [https://perma.cc/4M4W-9WUW] (discussing the California experience after court-ordered revamping of its school funding scheme). ↑

111. . See 957 F.3d 616, 621 (6th Cir. 2020). The litigants alleged the buildings were infested with rats, mice, and cockroaches; the windows were often broken or inoperable; and some of the heating and air conditioning systems did not work. Id. at 625–26. They further alleged the teachers were unqualified and frequently absent, and the textbooks and materials were old and unusable. See id.; Kristine Bowman, Is There a Federal Right to a Basic Education in the U.S.?, Nat’l Int.: Blog (Apr. 29, 2020), https://nationalinterest.org/blog/ buzz/there-federal-right-basic-education-us-148926 [https://perma.cc/8W2W-XCUB]. Note that the district courts in both Gary B. and Rodriguez did not specifically elaborate on the plaintiffs’ claims as to what the deplorable conditions within the schools were. This indicates the courts did not look favorably on their claims. ↑

112. . Whitmer, 957 F.3d at 620. ↑

113. . Gary B. v. Snyder, 329 F. Supp. 3d 344, 344 (E.D. Mich. 2018), aff’d in part, rev’d in part, and remanded sub nom. Whitmer, 957 F.3d at 616. ↑

114. . Id. at 369. ↑

115. . Id. at 367. Judge Murphy stated that, while the relief being sought by the plaintiffs was positive (i.e., a complaint that the state failed to provide the plaintiffs with adequate access to education) rather than negative (i.e., that the state provided a barrier to the education to which the plaintiffs were entitled), the case could be viewed either way. Id. ↑

116. . Id. at 365. ↑

117. . Id. at 365–66. ↑

118. . Id. at 366 (alteration in original) (internal quotation marks omitted). He went on to quote Barry Freidman and Sara Solow: “School districts at the time of the Constitution’s ratification were formed ‘when a group of farms came together and decided to construct a public building for schooling, where their children could gather and be taught reading, writing, and moral codes of instruction.’” Id. ↑

119. . Id. ↑

120. . For a list of states by date of admission to the Union, see Ratification of the Constitution by the States: Pennsylvania, in 2 The Documentary History of the Ratification of the Constitution 19–25 (Merrill Jensen eds., 1976) (providing a chronology of state ratifications of the Constitution from 1786 to 1791). ↑

121. . See U.S. Const. art. IV, § 2, cl. 3, amended by U.S. Const. amend. XIII. ↑

122. . Women were admitted to lower education in 1789, but they could attend only from April to October. See Ednah Dow Littlehale Cheney, Evolution of Women’s Education in the United States, in Art and Handicraft in the Woman’s Building of the World’s Columbian Exposition 147, 148 (Maud Howe Elliott ed., 1894). ↑

123. . See Semuels, supra note 20. ↑

124. . For the 1787 text of the Northwest Ordinance, see 32 Journals of the Continental Congress 1774–1789, at 334, 340 (Roscoe R. Hill ed., 1936). ↑

125. . Gary B. v. Snyder, 329 F. Supp. 3d 344, 366 (E.D. Mich. 2018), aff’d in part, rev’d in part, and remanded sub nom. Whitmer, 957 F.3d at 616. ↑

126. . Id. (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)). ↑

127. . Id. ↑

128. . Emily Parker, 50-State Review Constitutional Obligations for Public Education, Educ. Comm’n the States, Mar. 2016, at 1, http://www.ecs.org/wp-content/uploads/2016-Constitutional-obligations-for-public-education-1.pdf [https://perma.cc/3WPU-D35J]. Twenty-two of those state constitutions recognize education as a fundamental right. See Brennan-Gac, supra note 75. ↑

129. . Gary B. v. Whitmer, 957 F.3d 616, 621 (6th Cir. 2020). ↑

130. . Id. at 662. ↑

131. . Id. at 653. ↑

132. . Id. ↑

133. . Id. at 654. ↑

134. . The case was decided on April 23, 2020, and the governor reached a settlement with the plaintiffs less than a month later. See Press Release, Off. of Gov. Gretchen Whitmer, Governor Whitmer and Plaintiffs Announce Settlement in Landmark Gary B. Literacy Case (May 14, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90640-529231–,00.html [https://perma.cc/7K7M-PQWK]. ↑

135. . Gary B. v. Whitmer, 958 F.3d 1216 (6th Cir. 2020). The vacation of the decision was unsurprising because eleven of the sixteen members of the court are conservatives, and six of them are Trump appointees. ↑

136. . See Krysten Urchick, U.S. Education Law: Is the Right to Education in the U.S. in Compliance with International Human Rights Standards?, at 11 (Spring 2007) (unpublished manuscript) (on file with the South Carolina Law Review). ↑

137. . Convention of the Rights of the Child, adopted Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC]. ↑

138. . International Covenant on Economic, Social and Cultural Rights, adopted Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICESCR]. ↑

139. . The CRC defines a child as anyone under the age of 18, unless majority is attained earlier under national legislation in the country in which they reside. CRC, supra note 136, art. 1. ↑

140. . Id. arts. 4, 24–29. ↑

141. . Id. art. 2, ¶ 1. ↑

142. . Id. art. 28, ¶ 1. ↑

143. . ICESCR, supra note 137. ↑

144. . Id. art. 6. ↑

145. . Id. art. 11. ↑

146. . Id. art. 2, ¶ 2. ↑

147. . Id. art. 13. ↑

148. . 25th Anniversary of the Convention on the Rights of the Child, Hum. Rts. Watch (Nov. 17, 2014), https://www.hrw.org/news/2014/11/17/25th-anniversary-convention-rights-child# [https://perma.cc/J59B-XMFE]; David Shiman, Economic and Social Justice: A Human Rights Perspective, Hum. Rts. Res. Ctr., http://hrlibrary.umn.edu/edumat/hreduseries/tb1b/Se

     ction1/tb1-3.htm [https://perma.cc/T9K3-3R6M]. For a discussion of the difference between ratification and signing, see id. at 11–13. Under the Trump Administration, the United States violated the convention in myriad ways by separating and detaining immigrant children from their families at the border. U.N. Says Trump Violates Children’s Rights, Arête News (June 5, 2018), https://aretenews.com/u-n-says-trump-violates-childrens-rights/ [https://perma.cc/WQ6

     K-VUKY]. For instance, the convention recognizes a child’s right to a free primary education made available on an equal opportunity basis and encourages secondary education be made “available and accessible to every child.” CRC, supra note 136, art. 28. To date, no such education has been offered to the detained children. See, e.g., Lauren Markham & Thi Bui, Opinion, Get Children out of Cages at the Border and into School, L.A. Times (July 18, 2019, 3:11 AM), https://www.latimes.com/opinion/story/2019-07-17/children-border-detention-educ

     ation [https://perma.cc/MXW3-BV2W]. ↑

149. . Amy Rothschild, Is America Holding Out on Protecting Children’s Rights?, The Atlantic (May 2, 2017), https://www.theatlantic.com/education/archive/2017/05/holding-out-on-childrens-rights/524652/ [https://perma.cc/X47D-DU5V]. According to Rothschild, opponents argue the convention “undermines national and parental sovereignty.” Id. Some opponents have said there is no need for ratification because children in the United States already have a good standard of living. Id. But the United States spends a smaller portion of its gross domestic product on benefits for children than other wealthy nations. Id. Despite some opponents’ beliefs, research conducted by the National Center for Children in Poverty reveals that 43% of American children live in poverty, and infant mortality is higher in the United States than in many other wealthy countries. Id. ↑

150. . See 3 International Covenant on Economic, Social and Cultural Rights, United Nations Treaty Collection, https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/

     Chapter%20IV/IV-3.en.pdf [https://perma.cc/DBY2-4HZE]. As of March 2021, 171 countries had ratified the ICESCR. Id. ↑

151. . Federal funds support the K-12 education of disadvantaged children through the No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (repealed 2015). That Act was an amendment and reauthorization of title I of the Elementary and Secondary Education Act of 1965, Pub. L. No. 89-10, 79 Stat. 27. Additionally, the Individuals with Disabilities Education Act provides free and equal education to children with disabilities. 20 U.S.C. §§ 1411. Under the IDEA, the federal government promised to fund up to 40% of the cost to educate children with disabilities, but despite the number of children with disabilities increasing, the federal government continues to fall short of its obligation. Id.; IDEA Full Funding: Why Should Congress Invest in Special Education?, Nat’l Ctr. for Learning Disabilities, https://www.ncld.org/news/policy-and-advocacy/idea-full-funding-why-should-congress-invest-in-special-education [https://perma.cc/N6TG-A92K]; see also Wesley Whistle, How Elizabeth Warren Would Better Fund Our Schools, Forbes (Oct. 21, 2019, 2:53 PM), https://www.forbes.com/sites/wesleywhistle/2019/10/21/how-elizabeth-warren-would-better-fund-our-schools/? [https://perma.cc/XR6P-LQMG]. This leaves states to fund the remainder, which many cannot afford. ↑

152. . See, e.g., Jessica Fregni, The Future of Education Under the Biden Administration, Teach For America (Jan. 22, 2021), https://www.teachforamerica.org/stories/the-future-of-education-under-the-biden-administration [https://perma.cc/ZFP7-6XRK]. ↑

153. . See id. ↑

154. . See Diane Ravitch & Tom Loveless, Broken Promises: What the Federal Government Can Do to Improve American Education, Brookings (Mar. 1, 2000), https://www.brookings.edu/articles/broken-promises-what-the-federal-government-can-do-to-improve-american-education/ [https://perma.cc/KE4S-A665]. ↑

155. . Servicemen’s Readjustment Act of 1944, ch. 268, Pub. L. No. 346, 58 Stat. 429. ↑

156. . See Federal Education Policy and the States, 1945–2009: A Brief Synopsis, in States’ Impact on Federal Education Policy Project 7, 8 (2009). ↑

157. . For a discussion on the evolution of this funding, see Watson, supra note 9. ↑

158. . Elementary and Secondary Education Act of 1965, Pub. L. No. 89-10, 79 Stat. 27. ↑

159. . Higher Education Act of 1965, Pub. L. No. 89-329, 79 Stat. 1219 (codified as amended at 20 U.S.C. §§ 1001–1161aa1-1). ↑

160. . See Cameron Brenchley, What Is ESEA?, U.S. Dep’t of Educ.: Homeroom Blog (Apr. 8, 2015), https://blog.ed.gov/ 2015/04/what-is-esea/ [https://perma.cc/VVL7-YRR8]. ↑

161. . See Julia Kagan, The Higher Education Act of 1965 (HEA), Investopedia, https://www.investopedia.com/terms/h/higher-education-act-of-1965-hea.asp [https://perma.cc/NJQ6-PLS7]. ↑

162. . See generally Watson, supra note 9 (discussing the rise in federal funding of education that coincided with a decline in state and local education funding). ↑

163. . See generally id. (observing that, as the cost of higher education increased, federal funding for higher education also increased). ↑

164. . See infra Section III.B. ↑

165. . See infra Section III.C. ↑

166. . See infra Section III.D. ↑

167. . See How Big Government Broke Higher Education: The Student Loan Bubble, Explained, The Daily Fodder (Dec. 23, 2020), https://www.thedailyfodder.com/2020/12/how

     -big-government-broke-higher.html [https://perma.cc/9ELV-AXW7]. ↑

168. . See Sharkey et al., supra note 24; Mark Travers, Student Loans and the Racial Divide, Psychol. Today (Dec. 14, 2020), https://www.psychologytoday.com/intl/blog/social-instincts/202012/student-loans-and-the-racial-divide [https://perma.cc/MV3A-KLTV]. ↑

169. . See Stell Simonton, Equal Access to College Hampered by Lack of Guidance Counselors, Spotlight on Poverty & Opportunity (Jan. 30, 2019), https://spotlightonpov

     erty.org/spotlight-exclusives/equal-access-to-college-hampered-by-lack-of-guidance-counselor

     s/ [https://perma.cc/HYH8-QTLQ]. One study found that fewer than 5% of urban school districts meet the American School Counselor Association’s recommended student-to-counselor ratio of 250 to 1. Id. This primarily affects students from low-income families, those whose parents did not attend college, and those who are part of historically disadvantaged groups. Id. ↑

170. . Id. ↑

171. . See id.; see also Camilla E. Watson, The Future of Lower-Income Students in Higher Education: Rethinking the Pell Program and Federal Tax Incentives, 45 Fla. St. U. L. Rev. 1107, 1135–36 (2018) (discussing how the lack of information on loan repayment available to low-income families is a fundamental issue leading to the country’s widening education gap). ↑

172. . See Watson, supra note 170, at 1135–36; Simonton, supra note 168. ↑

173. . See Rosa Ramirez & Nat’l J., Fewer Students Report Taking Remedial Courses; Minority Numbers Still Worrisome, The Atlantic (Jan. 7, 2013), https://www.theatlantic.com/

     politics/archive/2013/01/fewer-students-report-taking-remedial-courses-minority-numbers-still-worrisome/429795/ [https://perma.cc/CSM5-V368]. ↑

174. . Heather Long & Danielle Douglas-Gabriel, The Latest Crisis: Low-Income Students Are Dropping Out of College This Fall in Alarming Numbers, Wash. Post (Sept. 16, 2020), https://www.washingtonpost.com/business/2020/09/16/college-enrollment-down/ [https://perm

     a.cc/RLL2-39LS]. ↑

175. . See Julie Rogier, Dropping Out of College with Student Loan Debt, U.S. News & World Rep. (Dec. 16, 2020, 9:57 AM), https://www.usnews.com/education/blogs/student-loan-ranger/articles/what-happens-to-student-loans-when-you-drop-out-of-college [perma.cc/

     PLR8-54E2]. ↑

176. . See Watson, supra note 9, at 904, 913, 922. ↑

177. . Federal Pell Grant Program, U.S. Dep’t of Educ., https://www2.ed.gov/programs/f

     pg/index.html [https://perma.cc/5C78-J3Y6]. Pell Grants were initially known as Basic Educational Opportunity Grants. Id. These grants were created under the Higher Education Act of 1965, Pub. L. No. 89-329, § 401, 79 Stat. 1219, 1232 (codified as amended at 20 U.S.C. § 1070). The application for the grant—the Free Application for Federal Student Aid (FAFSA)—has been a notoriously complicated form with 108 questions that must be answered before consideration. See Watson, supra note 170, at 1136. However, in the recent year-end spending bill passed on December 24, 2020, and signed by President Trump on December 27, 2020, there is a provision for the simplification of the FAFSA. See Michael Stratford, Congress Clinches Deal to Restore Pell Grants to Prisoners 26 Years After Ban, Politico (Dec. 20, 2020, 4:30 PM), https://www.politico.com/news/2020/12/20/congress-pell-grant-prisoners-449364 [https://perma.cc/9US4-CVHN] (reducing the number of questions to thirty-six). For the 2020–2021 academic year, the maximum Pell Grant is $6,345, while the average grant during the 2018–2019 academic year was $4,160. Lindsay VanSomeren, What Is the Pell Grant?, Forbes Advisor (June 22, 2020, 9:47 PM), https://www.forbes.com/advisor/ student-loans/what-is-the-pell-grant/ [https://perma.cc/QQ7X-L7MF]. ↑

178. . Emma Kerr, Everything You Need to Know About the Pell Grant, U.S. News & World Rep. (Feb. 3, 2021, 9:42 AM), https://www.usnews.com/education/best-colleges/paying-for-college/articles/everything-you-need-to-know-about-the-pell-grant [https://perma.cc/JW59-ALX5]. ↑

179. . See VanSomeren, supra note 176. For example, in the 2018–2019 school year alone, more than 6.8 million students received Pell Grants. Id. However, the increase in the grant amount has not kept pace with the rise of college tuition. Thus, the grant has become less significant with each passing year. For a discussion of this phenomenon, see Watson, supra note 170, at 115.  ↑

180. . VanSomeren, supra note 176. ↑

181. . See I.R.C. § 117(b). Because the grant has lost its spending power as the cost of tuition has increased, this is not as important an issue as it once was: the entire grant is likely to be used for tuition unless the recipient has a scholarship or drastic tuition reduction. ↑

182. . Pub. L. No. 102-325, 106 Stat. 448, 481, sec. 401, § 1070a (amended 1992). ↑

183. . Pub. L. No. 103-322, 108 Stat. 1796 (codified in scattered sections of the U.S. Code). President Biden, then-Senator Biden, was heavily involved in the passage of this bill. But during the 2020 presidential election, he said the bill was a mistake. Stratford, supra note 176. ↑

184. . Violent Crime Control and Law Enforcement Act sec. 20411, § 401(a)(8). ↑

185. . See Stratford, supra note 176. ↑

186. . Higher Education Amendments Act of 1998, Pub. L. No. 105-244, § 483(f), 112 Stat. 1581, 1735. ↑

187. . President Barack Obama, Remarks by the President in State of the Union Address (Jan. 20, 2015), https://obamawhitehouse.archives.gov/the-press-office/2015/01/20/remarks-president-state-union-address-january-20-2015 [https://perma.cc/9UJ3-PG4K]. This proposal was modeled after programs underway in Tennessee (the Tennessee Promise Program) and Chicago, which has a program of free community college. See Exec. Off. of the President, America’s College Promise: A Progress Report on Free Community College 6 (2015), https://obamawhitehouse.archives.gov/sites/default/files/docs/progressreportoncommu

     nitycollege.pdf [https://perma.cc/EL34-BLH8]. Legislation was introduced to implement President Obama’s proposal, but it failed to make it out of committee. See H.R. 2962, 114th Cong. (2015); S. 1716, 114th Cong. (2015). ↑

188. . See Press Release, U.S. Dep’t. of Educ., President Obama’s 2017 Budget Seeks to Expand Educational Opportunity for All Students (Feb. 9, 2016), https://www.ed.gov/news/

     press-releases/president-obamas-2017-budget-seeks-expand-educational-opportunity-all-students [https://perma.cc/P38T-RBZV]. ↑

189. . See Press Release, U.S. Dep’t. of Educ., 12,000 Incarcerated Students to Enroll in Postsecondary Educational and Training Programs Through Education Department’s New Second Chance Pell Pilot Program (June 24, 2016), https://www.ed.gov/news/press-releases/12000-incarcerate-students-enroll-postsecondary-educational-and-training-programs-through-education-departments-new-second-chance-pell-pilot-program [https://perma.cc/BW2J-3CPJ]; Shani Saxon, Second Chance Pell Grants Expand to 67 More Prison Sites, Colorlines (Apr. 29, 2020), https://www.colorlines.com/articles/second-chance-pell-grants-expand-67-more-prison-sites [https://perma.cc/8EPN-ESJV]. ↑

190. . Saxon, supra note 188. ↑

191. . See Press Release, U.S. Dep’t of Educ., U.S. Department of Education Announces Final Regulations to Protect Students and Taxpayers from Predatory Institutions (Oct. 28, 2016), https://www.ed.gov/news/press-releases/us-department-education-announces-final-regulations-protect-students-and-taxpayers-predatory-institutions [https://perma.cc/UY2P-LYPL]. ↑

192. . Id. ↑

193. . See, e.g., For-Profit Colleges Linked to Almost All Loan Fraud Claims, CBS News (Nov. 9, 2017, 8:03 AM), https://www.cbsnews.com/news/study-most-student-loan-fraud-claims-involve-for-profits/ [https://perma.cc/5428-GRYQ]. ↑

194. . Katie Lobosco, Betsy DeVos Stalled Obama’s Student Loan Relief Program. Borrowers Hope Biden Will Fix It, CNN (Dec. 19, 2020, 9:10 AM), https://www.cnn.com/2020/12/19/politics/student-loan-relief-devos-trump-biden/index.html [https://perma.cc/L9XV-2GJ4]. ↑

195. . See id. ↑

196. . Sweet v. DeVos, No. C 19-03674, 2020 WL 6149690, at *11 (N.D. Cal. Oct. 19, 2020); see also Bauer v. DeVos, 325 F. Supp. 3d 74, 79 (D.D.C. 2018). ↑

197. . See Adam S. Minsky, In Victory for Borrowers, DeVos Agrees to Stop Issuing Mass Denials of Loan Forgiveness Applications, Forbes (Nov. 24, 2020, 9:46 AM), https://www.forbes.com/sites/adamminsky/2020/11/24/in-victory-for-borrowers-devos-agrees-to-stop-mass-denials-of-loan-forgiveness-applications/ [https://perma.cc/YMV9-KW9Z]. Borrowers’ payments are currently in forbearance until the court renders a final decision. Id. ↑

198. . 84 Fed. Reg. 49,788 (Sept. 23, 2019). The Trump Administration’s policy also required borrowers to file their claims within three years of leaving school, but in many cases, evidence of fraud by the school may not surface until several years after borrowers have left, which might be well past the three-year limitation period. Preston Cooper, DeVos Fixes the “Borrower Defense” Rule’s Biggest Problems, Forbes (Sept. 9, 2019 4:57 PM), https://www.forbes.com/sites/prestoncooper2/2019/09/09/devos-fixes-the-borrower-defense-rules-biggest-problems [https://perma.cc/LJ54-QBYV]. In fact, this was what happened in the case of the defunct Corinthian Colleges. Id. ↑

199. . Lobosco, supra note 193. ↑

200. . Kat Tretina & Mike Cetera, Borrower Defense to Repayment: How It Could Impact Your Student Loans, Forbes (Sept. 30, 2020, 9:16 AM), https://www.forbes.com/advisor/stude

     nt-loans/borrower-defense-to-repayment [https://perma.cc/7PWN-HC89]. ↑

201. . See Erica L. Green, Financial Aid Is Restored for Prisoners as Part of the Stimulus Bill, N.Y. Times (Dec. 23, 2020), https://www.nytimes.com/2020/12/21/us/politics/stimulus-law-education.html [https://perma.cc/3S6T-3T5H]; Kevin Liptak et al., Trump Signs Coronavirus Relief and Government Funding Bill into Law After Lengthy Delay, CNN (Dec. 28, 2020, 6:02 AM), https://www.cnn.com/2020/12/27/politics/trump-relief-bill-christmas-eve/index.html [https://perma.cc/M8HG-ZCKE]. This included approximately $900 billion in COVID-19 relief payments. Id. ↑

202. . See Stratford, supra note 176. ↑

203. . See Danielle Douglas-Gabriel, Congress Could Simplify FAFSA, Expand Pell Grant Access in Spending Measure, Wash. Post (Dec. 21, 2020), https://www.washingtonpost.com/

     education/2020/12/20/congress-spending-colleges-pell-fafsa [https://perma.cc/GUG7-9ALH]. Additionally, the bill increased the expected family contribution, which determines the amount of the grant, making it easier for lower income students to obtain a Pell Grant. See id. ↑

204. . Steve Holland & Susan Cornwell, Trump Signs Pandemic Aid and Spending Bill, Averting Government Shutdown, Reuters (Dec. 27, 2020 1:49 PM), https://www.reuters.com/article/us-usa-trump-idINKBN2910NA [https://perma.cc/N4AF-3A7

     N]. The bill was initially sent to President Trump on December 24, 2020, but he delayed signing it because he objected to the $600 COVID-19 stimulus checks and wanted them raised to $2,000. See id. Although he signed the bill, he did not do so before unemployment benefits expired for 14 million Americans. Id. ↑

205. . See Spiros Protopsaltis & Sharon Parrott, Pell Grants — A Key Tool for Expanding College Access and Economic Opportunity — Need Strengthening, Not Cuts, Ctr. on Budget & Pol’y Priorities (July 27, 2017), https://www.cbpp.org/research/federal-budget/pell-grants-a-key-tool-for-expanding-college-access-and-economic [https://perma.cc/Q2EX-P9QG]. ↑

206. . See Jessica Fregni, supra note 151. This might, then, highlight the issue of the taxability of room and board. See supra note 180 and accompanying text. ↑

207. . See Kate Padgett Walsh, Opinion, The Morality of Canceling US Student Loan Debt, Palm Beach Post (Dec. 20, 2020, 9:00 AM), https://www.palmbeachpost.com/story/opinion/

     columns/2020/12/20/opinion-morality-canceling-us-student-loan-debt/3945571001/ [https://p

     erma.cc/FU4L-L5BA]. According to Walsh, almost 70% of students borrow to attend college, and the average size of their loans is around $30,000. Id. Student loan debt now stands at $1.64 trillion. See Chip Scully, Opinion, The Business Benefit to Providing Student Loan Assistance, Benefit News (Dec. 2, 2020, 9:54 AM), https://www.benefitnews.com/opinion/the-business-benefit-to-providing-student-loan-assistance [https://perma.cc/9V6F-4K75]. ↑

208. . See Richard Pallardy, Racial Disparities in Student Loan Debt, Saving for College (Aug. 27, 2019), https://www.savingforcollege.com/article/racial-disparities-in-student-loan-debt [https://perma.cc/R9RJ-H5GR]. For instance, a 2018 study found that Black students had up to 85.8% more student loan debt than white students. Id. ↑

209. . Mark Huelsman, Debt to Society: The Case for Bold, Equitable Student Loan Cancellation and Reform, Demos (June 6, 2019), https://www.demos.org/research/debt-to-society [https://perma.cc/Y4V4-7W9H]. ↑

210. . See supra notes 168–172 and accompanying text. ↑

211. . For a discussion of the evolution of the program, see Watson, supra note 9. ↑

212. . A Look at the Shocking Student Loan Debt Statistics for 2021, Student Loan Hero, (Jan. 27, 2021), https://studentloanhero.com/student-loan-debt-statistics/ [https://perma.cc/88

     LV-999G]. Currently, student loan debt exceeds credit card debt by approximately $739 billion. Id. ↑

213. . Id. ↑

214. . Clint Proctor, A Direct Subsidized Loan Is the Best Kind of Student Loan You Can Get, Bus. Insider (Apr. 22, 2020, 2:47 PM), https://www.businessinsider.com/personal-finance/what-is-a-subsidized-loan [https://perma.cc/AXR6-849D]. ↑

215. . Megan Leonhardt, 73% of Student Loan Borrowers Don’t Know What Happens to Their Debt If They Die (Dec. 18, 2019, 6:03 AM), https://www.cnbc.com/2019/12/17/majority-of-borrowers-dont-know-how-death-affects-student-loans.html [https://perma.cc/XU8W-CV

     AZ]. ↑

216. . This program was created under the College Cost Reduction and Access Act of 2007, Pub. L. No. 110-84, Title IV, § 401(1)(B)(i), 121 Stat. 784, 800-01. Under the Trump Administration, however, it was exceedingly difficult for eligible borrowers to find relief from loans under this program. See Danielle Douglas-Gabrielle, American Federation of Teachers Sues Betsy DeVos over Public Service Loan Forgiveness Program, Wash. Post (July 11, 2019), https://www.washingtonpost.com/education/2019/07/11/american-federation-teachers-sues-betsy-devos-over-public-service-loan-forgiveness-program/ [https://perma.cc/5PMF-S2C6]. ↑

217. . See Terri Williams, 10 Ways Student Debt Can Derail Your Life, Investopedia (Aug. 12, 2020), https://www.investopedia.com/articles/personal-finance/100515/10-ways-student-debt-can-destroy-your-life.asp [https://perma.cc/F78E-MZSX]. ↑

218. . This is attributable to a series of legislation efforts spanning almost thirty years. See Watson, supra note 9, at 947–48. Additionally, non-dischargeable debt applies to both private and federal loans. But see Chris Arnold, Myth Busted: Turns Out Bankruptcy Can Wipe Out Student Loan Debt After All, NPR (Jan. 22, 2020, 7:13 AM), https://www.npr.org/2020/01/22/

     797330613/myth-busted-turns-out-bankruptcy-can-wipe-out-student-loan-debt-after-all [https:

     //perma.cc/4KEJ-D5DP]. ↑

219. . Higher Education Technical Amendments Act of 1991, Pub. L. No. 102-26, § 3, 105 Stat. 123, 124. Private loans have a statute of limitations, which varies according to the state. Meghan Lustig, Student Loan Statute of Limitations: What to Know, U.S. News & World Rep. (July 15, 2020), https://www.usnews.com/education/blogs/student-loan-ranger/articles/what-to-know-about-the-statute-of-limitations-on-student-loans [https://perma.cc/9XP6-NL7P]. ↑

220. . Debt Collection Improvement Act of 1996, Pub. L. No. 104-134, § 31001, 110 Stat. 1321-358. The government began implementing this in 2001. See Watson, supra note 9, at 922. This provision only applies to federal student loans. To be eligible, a borrower must have been employed by an eligible public service employer and have made 120 on-time payments. Id. ↑

221. . For the myriad ways in which Congress has treated student loan borrowers unfairly, see generally Watson, supra note 9, at 887, 945–56. However, during the COVID-19 pandemic, Congress enacted the Coronavirus Aid, Relief and Economic Security Act (CARES Act) to forgive payments and interest accrual from March through September 2020. Coronavirus Aid, Relief and Economic Security Act, Pub. L. No. 116-136, § 3513, 134 Stat. 281, 404 (2020). The Trump Administration later extended this relief through December 31, 2020, and then again through January 31, 2021. See Anne Turgesen, Student Loan Payment Suspension: What Trump’s Executive Action Means for Borrowers, Wall St. J. (Aug. 14, 2020), https://www.wsj.com/articles/student-loan-payment-suspension-what-trumps-executive-action-means-for-borrowers-11597410203 [https://perma.cc/6RRZ-WEUJ]; Elissa Nadworny, Education Department Extends Student Loan Payment Freeze Through January, NPR (Dec. 4, 2020, 6:42 PM), https://www.npr.org/sections/coronavirus-live-updates/2020/12/04/943293547

     /education-dept-extends-student-loan-payment-freeze-through-january [https://perma.cc/24N

     V-PXYY]. The Act also forgave Pell Grant repayment where the grantee withdrew from school for a qualified emergency. Coronavirus Aid, Relief and Economic Security Act §§ 3507–3508. ↑

222. . See I.R.C. § 108(f)(1) (including public service loan forgiveness, teacher loan forgiveness, certain federal programs, and forgiveness on account of death or permanent and total disability). ↑

223. . Sarah Goldy-Brown, Student Loan Forgiveness Tax Implications, Student Debt Relief (Aug. 13, 2019), https://www.studentdebtrelief.us/ student-loans/student-loan-forgiveness-tax-implications/ [https://perma.cc/Y3Q3-4RUV]. All federal income-driven repayment plans offer loan forgiveness at the end of the loan term, which varies between twenty and twenty-five years depending on the repayment plan. Id. ↑

224. . See id. ↑

225. . Id. ↑

226. . See id. Forgiveness of student loan debt on income-driven repayment plans is not among the types of tax-free student loan forgiveness mentioned in I.R.C. § 108(f). ↑

227. . See Repayment Plan Comparison, EdFinancial Servs., https://edfinancial.com/He

     lp-Center/Lower-Payment-Options/Repayment-Plan-Comparison [https://perma.cc/C8P4-284
     8]. ↑

228. . See supra note 17 and accompanying text. ↑

229. . Mark Kantrowitz, When Will Joe Biden Forgive Your Student Loans?, Forbes (Nov. 20, 2020, 11:57 AM), https://www.forbes.com/sites/markkantrowitz/2020/11/20/when-will-joe-biden-forgive-your-student-loans/?sh=2caba34e107d [https://perma.cc/8F9B-SMJA]. President Biden’s proposal would forgive $10,000 of indebtedness “for every year of community or national service, up to five years.” Darla Mercado, Student Loan Forgiveness May Come with a Tax Bomb. How Lawmakers Might Fix It, CNBC (Nov. 25, 2020, 11:56 AM), https://www.cnbc.com/2020/11/24/student-loan-forgiveness-may-come-with-tax-bomb-heres-what-you-should-know.html [https://perma.cc/NE76-A4QT]. ↑

230. . See Walsh, supra note 206. ↑

231. . See id. ↑

232. . Id. According to Walsh, “[t]wenty years after college, when white borrowers have repaid 94% of their loans, the typical Black student has been able to repay only 5%.” Id. ↑

233. . Marjorie Valbrun, A Clean Loan Ledger for New Graduates, Inside Higher Ed (Sept. 13, 2019), https://www.insidehighered.com/news/2019/09/23/billionaire-robert-smith-follows-through-pledge-pay-morehouse-students-loan-debt [https://perma.cc/EZQ4-CGR3]. ↑

234. . See I.R.C. § 108(a)(1)(B). Debtors falling under the insolvency exception must “pay” for their exclusion by giving up their tax attributes, such as the basis in their assets and any net operating losses they may have, equal to the amount of the exclusion. § 108(b). ↑

235. . See § 108(f)(5). ↑

236. . See Mercado, supra note 228. ↑

237. . See id. Some are skeptical about whether an Executive Order will be sufficient to provide tax relief to the borrowers in the event of a forgiveness. Id. I am one of those skeptics because, unless the forgiveness falls into one of the exceptions under § 108(a) and (f), the forgiveness clearly would have to be included in income. I do not believe that an explicit law enacted by Congress can be changed by Executive Order. ↑

238. . Pub. L. No. 105-34, sec. 201(a), § 25A, 111 Stat. 788, 799–809 (codified as amended in I.R.C. § 25A). These were the Hope and Lifetime Learning Credits under I.R.C. § 25A (the Hope credit has now been replaced with the American Opportunity Tax Credit (AOTC)), penalty-free withdrawals from an individual retirement account for purposes of education under I.R.C. § 72(e)(9), a deduction for interest paid on student loans under I.R.C. § 221, and education savings accounts (also known as Coverdell education savings accounts) under I.R.C. § 530. Id. ↑

239. . See, for example, qualified tuition plans under I.R.C. § 529, which were broadened to include room and board within the definition of “qualified expenses,” § 529(e)(3)(B)(i), and a five-year average for gift tax purposes on contributions that exceeded the annual per donee gift tax exclusion, § 529(c)(2)(B). Additionally, the Taxpayer Relief Act extended the exclusion for forgiveness of student loans under § 108(f) to apply to tax-exempt charitable organizations except where the borrower’s services must be rendered to an educational institution or to the source of the funds. § 225. The Act also extended the exclusion for employer-provided educational assistance under I.R.C. § 127 through May 31, 2000. § 221. These provisions became effective for qualified expenses paid after December 31, 1997. § 203. ↑

240. . For a discussion of the advantages of tax incentives for education, see Camilla E. Watson, Reforming the Tax Incentives for Higher Education, 36 Va. Tax Rev. 83, 90–92 (2017). ↑

241. . See, e.g., Internal Revenue Serv., Pub. 970, Tax Benefits for Education (2020) (the ninety-three-page publication explaining these benefits). ↑

242. . See Watson, supra note 239, at 98–102. ↑

243. . See I.R.C. § 102(a). ↑

244. . Internal Revenue Serv., Pub. 559, Survivors, Executors, and Administrators 25 (2020); see § 2503(b). After 2021, the annual per donee exclusion may be raised for inflation. ↑

245. . Admittedly, both the gift tax and the generation-skipping tax are not as important today because the Unified Credit exemption for 2021 is $11.7 million for single individuals and $23.4 million for married couples. § 2010; see also Rev. Proc. 2020-45, 2020-46 I.R.B. 1016; Treas. Reg. § 601.602 (1967). However, they were an important issue when the education tax benefits were enacted under the Tax Reform Act of 1997, Pub. L. No. 105-34, 111 Stat. 787. Also, the current exemption amount will revert to the 2017 limit of $5 million in 2026, and President Biden has indicated an interest in lowering that exemption to its 2009 level of $3.5 million. See David M. Allen et al., 2021 Biden Plan Estate Planning Advisory, Nat’l L. Rev. (Jan. 15, 2021), https://www.natlawreview.com/article/2021-biden-plan-estate-planning-advisory [https://perma.cc/G5JB-FNUD]. ↑

246. . Internal Revenue Serv., Pub. 559, Survivors, Executors, and Administrators 25 (2020); see I.R.C. § 170(b)(1)(A)(ii). However, the downside is that this amount will count against the student for need-based benefits. For an explanation of how this works, see Kathryn Flynn, Tuition Gift Tax Exclusion, Saving for College (Oct. 29, 2019), https://www.savingforcollege.com/article/tuition-gift-tax-exclusion [https://perma.cc/

     FTN2-3KZE]. ↑

247. . See §§ 2601–2604. ↑

248. . See, e.g., § 25A(g)(5). ↑

249. . See § 25A(i)(g)(5). ↑

250. . See, e.g., § 25A(i)(G)(2)(C). ↑

251. . The definition of the term “qualified expense” varies according to the Code provision. See, e.g., § 25A(f)(1) (AOTC and Lifetime Learning Credit); § 529(e)(3) (qualified tuition program), § 530 (Coverdell education savings accounts). ↑

252. . See supra note 219 and accompanying text. ↑

253. . § 117(a). Another requirement is that the recipient of the scholarship, fellowship, or grant must be “a candidate for a degree at an educational institution described in section 170(b)(1)(A)(ii).” Id. This section describes an educational institution as one that maintains a regular faculty and curriculum. § 170(b)(1)(A)(ii). ↑

254. . § 117(b)(1). ↑

255. . § 117(b)(2). ↑

256. . Treas. Reg. § 1.25A–2(d)(3) (1960). ↑

257. . See supra notes 176–178 and accompanying text. ↑

258. . Treas. Reg. § 1.117–1(b). ↑

259. . I.R.C. § 25A(g)(2). Up to 40%, or $1,000, of this credit is refundable even if there is no tax to offset on the return. § 25A(i). The AOTC replaced the former Hope Scholarship Credit (I.R.C. § 25A(b)) in 2009 and is a more generous version of that credit. See American Opportunity Tax Credit: Questions and Answers, IRS (Sept. 19, 2020), https://www.irs.gov/newsroom/american-opportunity-tax-credit-questions-and-answers [https:/

     /perma.cc/W6U8-EVTT]. The AOTC has some restrictions, such as availability for only the first four years of postsecondary education, a half-time attendance requirement, and an income phaseout. See § 25A(b)(2), (d). The AOTC uses $4,000 in qualified expenses to generate $2,500 in tax credit, of which up to $1,000 is refundable. See § 25(b)(1). Thus, if a student uses the AOTC, the student must reduce qualified expenses by $4,000. Note that the definition of “qualified expense” under the AOTC and Lifetime Learning Credit does not include room and board. § 25A(f)(1); see also Treas. Reg. § 1.25A–2(d)(3) (1960). ↑

260. . See supra notes 247–250 and accompanying text. ↑

261. . See I.R.C. § 102(a)–(b). ↑

262. . However, advocates of this exception would argue there are phaseout rules based on higher income levels for most education tax benefits. So, the higher the income level, the greater the phaseout of the tax advantage. See, e.g., § 25A(d). On the other hand, the phaseouts exist because these are higher income taxpayers whom other taxpayers should not have to subsidize. See generally Tax Pol’y Ctr., Tax Policy Center Briefing Book (2020), https://www.taxpolicycenter.org/sites/default/files/briefing-book/how_do_phaseouts_of_tax_

     provisions_affect_taxpayers_1.pdf [https://perma.cc/97WC-FKUK]. ↑

263. . See § 529. ↑

264. . See § 529(b)(1). ↑

265. . See § 529(c)(2). Although there is no specific limit on the amount of contributions, there is a prohibition against “excess contributions.” See § 529(b)(6). But contributions are considered gifts and are limited by two factors: (1) the amount reasonably anticipated to meet the beneficiary’s college needs and (2) the amount that meets the annual per donee gift tax exclusion—currently $15,000—although the special rule allows contributions of up to $75,000 in a single taxable year that may be spread out over a five-year period without payment of gift tax. See § 529(b)(6)–(c). ↑

266. . § 529(c)(2)(B). ↑

267. . See § 529(c)(3). ↑

268. . § 529(c)(7). This provision was added by the Tax Cut and Jobs Act of 2017, Pub. L. No. 115-97, § 11032, 131 Stat. 2054, 2081–82, which was enacted under the Trump Administration. ↑

269. . I.R.C. § 529(e)(3)(A). In addition to a computer, it also includes peripheral equipment, software, internet access, and related services. § 529(e)(3)(A)(iii). ↑

270. . § 529(e)(3). ↑

271. . See supra text accompanying notes 254–256. ↑

272. . See § 529(e)(3)(B). ↑

273. . See § 529(c)(3)(A). The taxable amount is determined under I.R.C. § 72, which allows an offset of the basis—in this case, the taxable amount is the amount of the initial contribution that was considered a gift to the beneficiary. Thus, if taxed, the beneficiary is taxed only on the accumulated interest on that portion. See § 72(e)(2)(B), (e)(9). ↑

274. . See Emma Kerr, Using a 529 Plan to Save For College During COVID-19, U.S. News & World Rep. (June 17, 2020, 9:30 AM), https://www.usnews.com/education/best-colleges/paying-for-college/articles/saving-for-college-during-coronavirus-managing-your-529

     -plan [https://perma.cc/5B7F-YPEU]. ↑

275. . These fees vary with the plans. See, e.g., Lisa Beilfuss, The Fees on Your ‘529’ Tuition-Savings Plan Matter More Than Ever, Wall St. J. (Mar. 14, 2019), https://www.wsj.com/articles/the-fees-on-your-529-tuition-savings-plan-matter-more-thanever

     -11552563001 [https://perma.cc/R4RM-ZM5W]. ↑

276. . See Anne Mollegen Smith, 529 Risks to Take (Or Not), Investopedia (Aug. 19, 2020), https://www.investopedia.com/articles/personal-finance/091714/529-risks-take-or-not.

     asp [https://perma.cc/F25T-A6AQ]. ↑

277. . While a downward fluctuation could be devastating for that investor, an upward fluctuation could affect the investor’s eligibility for institutional assistance or other federal assistance, such as Supplemental Nutrition Assistance Program (SNAP) and Temporary Assistance for Needy Families (TANF) benefits. See Watson, supra note 239, at 123. ↑

278. . Id. ↑

279. . These are the AOTC and Lifetime Learning Credit under I.R.C. § 25A; the exclusion of scholarships, fellowships, and grants under I.R.C. § 117; the exclusion of tuition reductions under I.R.C. § 117(d); the $5,250 exclusion for employer-provided educational assistance under I.R.C. § 127(a); the exclusion of interest from educational savings bonds under I.R.C. § 135; the deduction of interest from student loans under I.R.C. § 221; the exclusion of interest on contributions and deductions under qualified tuition plans under I.R.C. § 529; and the exclusion of interest under Coverdell education savings accounts under I.R.C. § 530. ↑

280. . Because Series EE and I savings bonds are tax-free and not subject to market risk, they are low-yield—that is the trade-off. See Press Release, TreasuryDirect, Fiscal Service Announces New Savings Bonds Rates, Series I to Earn 1.68%, Series EE to Earn 0.10% (Nov. 2, 2020) (on file with author). Thus, the earlier one starts investing, the better. ↑

281. . This phaseout is $40,000 for single filers and $60,000 for joint filers. § 135(b)(2)(A). ↑

282. . Cf. Series EE and I Savings Bonds, TreasuryDirect, https://www.treasury direct.gov/indiv/research/indepth/ebonds/res_e_bonds_eecomparison.htm [https://perma.cc/RPX2-H6VD]. These bonds also can be purchased with a tax refund or with a payroll deduction. Id. ↑

283. . See Watson, supra note 239, at 122–123. ↑

284. . § 135. ↑

285. . Id. ↑

286. . Id. ↑

287. . § 135(b). ↑

288. . The tax benefit is completely phased out at $55 for single filers and $90,000 for joint filers. Id. Because of the investment’s tax-free nature and security, the yield on these bonds is low. See James Royal, Savings Bonds 101: How They Work and What You Need to Know, Bankrate (Feb. 19, 2021), https://www.bankrate.com/banking/savings/savings-bonds-guide/ [https://perma.cc/K9E6-3AF7]. ↑

289. . § 135(c)(2). ↑

290. . § 135(d)(2). ↑

291. . See Mary Sugden, Starting 2021 Babies Born in Illinois to Automatically Receive College Savings Fund, WREX (Dec. 16, 2020, 6:21 PM), https://wrex.com/2020/12/16/starting-2021-babies-born-in-illinois-to-automatically-receive-college-savings-fund/ [https://perma.cc/

     2R7E-5FGF]. ↑

292. . See Don Dwyer, New Law Jumpstarts Kids College Savings Accounts in Illinois, WGEM (Dec. 30, 2020, 3:53 AM), https://wgem.com/2020/12/30/new-law-jumpstarts-kids-college-savings-accounts-in-illinois/ [https://perma.cc/ZE3L-6BNW]. ↑

293. . See id. ↑

294. . See id. ↑

295. . Id. ↑

296. . Id. ↑

297. . See id.; Sugden, supra note 290 (interviewing Senator Dave Syverson). ↑

298. . See Sugden, supra note 290 (same). ↑

299. . I am not necessarily proposing that Congress repeal the tax benefit of QTPs. Higher education should be encouraged at all income levels, so I am not proposing to make it more difficult for middle and upper-middle income families to educate their children. This is particularly the case in a pandemic, where income levels and job opportunities may be precarious. My purpose is simply to point out that many more advantages are offered to higher income families than to lower income families. If the rationale for affording more favorable tax benefits to higher income families is that direct benefits, such as Pell Grants, are available for lower income families, the spending power of the Pell Grant has declined precipitously over the years, whereas the benefits afforded higher income families has not declined. ↑

300. . See, e.g., Dion Rabouin, Unemployment Surges as Pandemic Programs Near Expiration, Axios (Dec. 18, 2020), https://www.axios.com/unemployment-covid-pandemic-programs-expiration-7815f08e-b378-4bab-aa34-cfa8ab0bc10b.html [https://perma.cc/WCV2-SRDS]; Unemployment Numbers Remain High, 7 Months into the Pandemic, HuffPost (Oct. 15, 2020, 8:51 AM), https://www.huffpost.com/entry/unemployment-job-numbers-layoffs-pandemic_n_5f884555c5b6c4bb547359f0 [https://perma.cc/H6GT-YF3Z]. ↑

301. . The HEA is subject to reauthorization, which usually occurs every five to eight years, although the gap has widened in the past two decades. The last reauthorization was in 2008, see Higher Education Opportunity Act, Pub L. No. 110-315, 122 Stat. 3078 (2008), so the next one is overdue. Apparently, Congress was close to reauthorizing the HEA early in 2020, shortly before the pandemic struck. See Kery Murakami, The Higher Education Act and the Pandemic, Inside Higher Ed (Apr. 15, 2020), https://www.insidehighered.com/news/2020/04/15/senate-committee-was-close-deal-higher-ed-then-came-pandemic [https://perma.cc/CF6H-MPZX]. ↑