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Public education has long been a core government function in the United States-"perhaps the most important function," according to Chief Justice Earl Warren's landmark 1954 opinion in Brown v. Board of Education. Writing for a unanimous Supreme Court, Warren noted that "compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society." The depth of the nation's educational commitment is evident also in its state constitutions, forty-nine of which mention the government's responsibility in this area.
Yet it is increasingly clear that the American school system is ill-equipped to meet the challenges of the twenty-first century. Although per-pupil spending, adjusted for inflation, has more than doubled since 1970, high school graduation rates and the test scores of seventeen-year-olds have hardly budged from levels attained years ago. The performance of American students in mathematics and science continues to lag far behind that of their peers abroad. A half-century after Brown put an end to legally sanctioned segregation in the schools, gaps in basic skills along lines of ethnicity and income remain scandalously wide.
Policymakers seeking to enhance the school system's flagging productivity have proposed everything from new accountability systems to more parental choice, from data-driven instruction to a return to traditional teaching methods, and from handing schools over to mayoral direction to altering how teachers are paid. While all these reforms have gained widespread attention, their implementation has been haphazard and idiosyncratic. Pressures to generate sustained improvement, especially in troubled urban districts, have only grown.
Meanwhile, almost unnoticed, an alternative reform strategy-the adequacy lawsuit-has made rapid headway within the nation's judicial system (see figure 1-1). Advocates for increased school spending have gone to court in at least thirty-nine states to date. Armed with photographs of rundown school buildings, data revealing large numbers of uncertified teachers, and evidence of abysmal and unequal student performance, teams of lawyers allege that schools lack sufficient funding to provide children with the quality of education guaranteed by the state's constitution. As a remedy, they ask the courts to mandate large increases in state aid for public schools.
Often the proposed dollar amounts are staggering. A March 2006 ruling in New York, for example, ordered the state's elected officials to increase operating aid for schools in New York City alone by between $4.7 billion and $5.63 billion a year (roughly $5,000 per student), in addition to $9.2 billion over five years for capital improvements. If acted on by the governor and legislature, the increment for operations would by itself lift spending by more than one-third over current levels.
Nor is it only in the Democratic "blue" states where courts have been impressed by plaintiff claims. Adequacy lawsuits have been decided in favor of plaintiffs in states as Republican-red as Kansas, Montana, and North Carolina. Meanwhile, the federal No Child Left Behind (NCLB) law, enacted in 2002, has given adequacy advocates new fuel for their claims by requiring states to collect detailed information on student performance. With victories in hand and fresh evidence to bolster the advocates' case, it is no wonder that at the end of 2005 adequacy claims were pending in at least fourteen states (see the appendix).
Is adequacy litigation a promising avenue for education reform? If success in the courtroom were the appropriate metric, the matter would be settled. Adequacy plaintiffs have won victories in twenty-five states, including ten of the fourteen cases decided between 2003 and 2005. Responding to complaints and court rulings in school finance cases has become a consuming concern of governors and legislators, who must balance educational spending against revenue constraints and other fiscal obligations. If court orders to improve educational outcomes could reliably do so, the story to be reported in the pages that follow would be as happy as the stories of the families that Tolstoy excluded from his canon as too dull to be worth the telling.
The path from courtroom to classroom is long and uncertain, however. Legislatures may opt not to comply with mandated spending increases, causing the lawsuits to fail on their own terms. Even when additional money reaches the schoolhouse door, there is no guarantee that it will benefit students, and courts may lack the capacity to ensure that new funds are put to good use. Indeed, it may be that these judgments are an instance of judicial overreaching that will do little to rectify the undeniable inadequacies and inequities in American education. The story, if not quite Anna Karenina, may not be so boring after all.
Those helping to tell the tale in this volume, all leading scholars in their fields, shed light on the nature and consequences of the adequacy lawsuit with fresh analyses of its legal, political, fiscal, and educational implications. In this chapter, we summarize their findings and offer our own interpretation of the lessons to be drawn. Adequacy litigation, we ultimately conclude, is unlikely to make educational opportunities more adequate or more equitable, and, by inviting ongoing judicial supervision of school spending, it threatens the separation of powers within state governments. Before reaching that conclusion, however, let's trace the origins of this remarkable development in American education policymaking.
The Origins of Adequacy Litigation
Adequacy lawsuits evolved from a prior legal innovation, the equity lawsuit, in which plaintiffs charged that wealth-related disparities in per-pupil spending among school districts violated students' rights to equal protection under the law. The precise point at which equity arguments morphed into claims rooted in the concept of adequacy is murky, and even the most recent adequacy judgments continue to reflect more than vestigial equity considerations. But the change, if not clear cut, has had significant consequences. A fairly transparent, if debatable, standard gave way to an abstruse concept open to an endless variety of interpretations.
The equity concept was first embraced in Serrano v. Priest, the celebrated decision handed down by the California Supreme Court in 1971 and reaffirmed in 1976. "[Q]uality is money," members of the plaintiff's legal team had argued, and the court ultimately agreed that the state's school finance system would be constitutional if it were to eliminate wealth-related disparities in per-pupil spending across the state's school districts.
The equity claim advanced in Serrano had one distinct advantage: the clarity of the legal principle requiring equal treatment for each school district, regardless of its wealth. To be sure, the principle did not give comprehensive guidance. Should state aid be adjusted for local differences in the cost of living? Should districts receive extra funds for students with special needs? But while these and other issues left ample room for debate and deliberation, the remedy could nonetheless be guided by a readily discernible principle that resonated with the concept of equal opportunity set forth in the nation's founding documents and powerfully reiterated in Brown.
Perhaps for this reason, the Serrano plaintiffs were victorious in court. Yet the case set off a series of developments within California that proved ominous for the equity movement's long-term prospects. By forcing the reallocation of funds from wealthy districts to districts with a smaller property tax base, the decisions provoked a backlash among many of the public schools' strongest supporters and led some families to seek out places in private schools. Resentment over the legislature's response to Serrano also contributed to California's property tax revolt and to the passage of Proposition 13, approved in 1978, which prevents increases in taxes on residential property unless it is sold. In subsequent years, as the burden of school funding shifted from local to state taxpayers, California's per-pupil spending on education fell dramatically, from among the top-ten states in the 1960s to the bottom ten just three decades later.
Nor did the equity claim fare well in federal court, when plaintiffs in San Antonio, Texas, invoked the equal protection clause of the Fourteenth Amendment to the U.S. Constitution to challenge disparities in state per-pupil spending. Although they won at trial, on appeal a divided Supreme Court rejected the plaintiffs' claims, ruling in its 1973 decision in San Antonio I.S.D. v. Rodriguez that education was not a fundamental right requiring the highest level of judicial scrutiny.
Rebuffed at the federal level, equity advocates redoubled their efforts in the states. If educational equity was not a fundamental federal right, they claimed, it was certainly guaranteed by those state constitutions that explicitly ordered the legislature to provide for the education of the citizenry. Yet many state judges proved hesitant to interpret their own states' equal protection clauses in a way that differed from the Supreme Court's reading of the U.S. Constitution. Others worried about the implications for other policy domains in which spending also varied from one part of the state to another. When by 1990 the dust had more or less settled, courts had rejected plaintiffs' claims in well over half of the equity cases filed (see figure 1-2, panel A).
Even when plaintiffs in state-level equity litigation were successful-New Jersey's 1973 Robinson case being the most celebrated example-the implementation of court orders proved to be a political challenge. Remedies typically pitted the interests of high-spending districts against lower-spending ones, and the shifting of resources from one jurisdiction to another inevitably caused consternation among legislators asked to vote against their constituents' particular interests. Many of the equalization policies that legislatures adopted in response to equity judgments led overall spending on education to fall, much as it had in California. Intended to level school spending up, equity-based reforms, as often as not, leveled it down.
Under the weight of these and other unintended consequences, enthusiasm for the equity movement gradually faltered. But advocates for poor districts soon inserted another, more robust arrow into their legal quiver. Rather than simply asking for fiscal equity, they argued that spending on education must be adequate to provide all students with an education of the quality guaranteed by their state's constitution. This new demand promised to halt cuts in educational spending, but it did so at a price. Having set aside the simple, readily justifiable standard of fiscal equity, plaintiffs now had to give specificity to educational adequacy, a much more ambiguous concept.
To do so, proponents turned to the education clauses in state constitutions. The wording of these provisions varies from one state to the next. Georgia's constitution, for example, says that "an adequate public education for the citizens shall be a primary obligation of the State." Florida's constitution also refers specifically to an "adequate" education. But the most common formulation reads quite differently, calling for the establishment of a school system that is "thorough and efficient"-a phrase found in the constitutions of Maryland, Minnesota, New Jersey, Ohio, Pennsylvania, and West Virginia. Wyoming's constitution has it both ways, requiring the state to provide an education system that is at once "thorough and efficient" and "adequate to the proper instruction of all youth."
Education clauses had figured in equity lawsuits only as evidence that citizens had an enforceable right to equal educational opportunity under state constitutions, even if not (after Rodriguez) a federal one. By incorporating adequacy claims into the litigation, plaintiffs infused the clauses with new meaning, arguing that they obligated legislatures to provide all students with an education of a specific quality. As early as 1979, the West Virginia Supreme Court of Appeals defined a "thorough and efficient" education as one that "develops, as best the state of education expertise allows, the minds, bodies and social morality of its charges to prepare them for useful and happy occupations, recreation and citizenship, and does so economically." It then articulated eight content areas ranging from "literacy" and "the ability to add, subtract, multiply, and divide" to "interests in all creative arts" and even "social ethics," deeming them all to be legally enforceable elements of such an education. The West Virginia court, however, allowed the legislature to determine how best to achieve these goals; it did not explicitly mention funding levels.
It was left to a Kentucky case, Rose v. Council for Better Education, filed in 1985 and decided in 1989, to become the first case in which the courts mandated fiscal action to achieve an adequate education. When that lawsuit appeared to bear promise-and especially after a favorable decision was reached-plaintiffs incorporated adequacy claims into virtually all subsequent school finance lawsuits. In Kentucky itself, the highest court declared the state's entire public education system unconstitutional and ordered the legislature to provide, along with other reforms, "funding sufficient to provide every child in Kentucky with an adequate education." Since that time, courts throughout the country have based their decisions at least partially on adequacy grounds in the vast majority of cases won by the plaintiffs (see figure 1-2, panel B).
The early success of adequacy complaints reflected plaintiffs' skill in highlighting the deplorable conditions that have long existed in far too many American schools. Dilapidated buildings, outdoor toilets, and other graphic evidence of substandard conditions, which plaintiffs attributed to a lack of funding rather than managerial incompetence, proved capable of spurring judicial action in states where discussions of equity indexes and property tax burdens had failed to do so.
Adequacy advocates also drew support from a concurrent, if quite separate, reform effort, the national push for educational standards and accountability. The standards-based reform movement was jump-started in 1983 when the U.S. Department of Education issued a report, A Nation at Risk, warning the public of a "rising tide of mediocrity" afflicting America's schools. In the wake of this widely publicized document, numerous governors called for schools and students to be held accountable for their academic performance. Several states moved quickly on their own to establish proficiency standards and regular assessments of the performance of their students. In 1994, Congress, at the behest of the Clinton administration, enacted legislation urging other states to do the same. Plaintiffs in adequacy cases soon began citing newly collected data on student proficiency, which routinely revealed student performance to be lagging well below state targets.
When 2000 came and went with few states in full compliance with the 1994 accountability law and student achievement still stagnant, Congress acted again. The No Child Left Behind Act (NCLB), the much stronger accountability law enacted in 2002, requires that virtually all students achieve a state-determined level of proficiency in mathematics and reading by the year 2014. Schools not making sufficient progress toward that goal are to be identified as needing improvement and eventually subjected to a range of sanctions.
At the time that NCLB became law, few realized its potential impact on adequacy lawsuits. But now that states, to receive federal funds, had to insist that schools meet statewide performance targets, plaintiffs were provided with a clearer definition of adequacy-one based on proficiency standards adopted by the legislature itself. Without additional fiscal support, they said, schools cannot provide the services necessary for students to achieve state-determined targets. Attorneys have turned classroom failure into courtroom success.
Exactly how this happened-and with what consequences-is explained in the chapters that follow. They cover five topics: the legal rationale for adequacy lawsuits; the character of the evidence presented before the courts; the impact of adequacy decisions on spending and other state policies; the future of adequacy litigation; and the meaning and significance of this far-reaching legal development.
Excerpted from School Money Trials by Martin R. West Paul E. Peterson Copyright © 2007 by Brookings Institution Press. Excerpted by permission.
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