Strike and counterstrike in the judicial battle to increase education spending

In the spring of 2006, the New York State legislature voted to provide $9.2 billion to New York City to build new schools and repair old ones. In January, the State’s new governor, Elliot Spitzer, proposed a $5.4 billion increase in annual operating funds for the City’s schools– to be phased in over the next four years -- and at least an additional $4 billion for school districts in the rest of the state.

These events represent the culmination of 13-year-old lawsuit, in which the main plaintiff, a coalition of parent organizations, community school boards, concerned citizens, and advocacy groups called the Campaign for Fiscal Equity (CFE) – for whom I served as co-lead counsel -- successfully argued that the state’s constitution guaranteed every child the right to a sound basic, basic education.

The CFE case, in turn is emblematic of a much larger national movement, considered by many to be a kind of Act III in the story that began with Brown vs. Board of Education, the U.S. Supreme Court’s landmark 1954 decision striking down segregation in the public schools, and continued during the civil rights era that followed it. Lawsuits challenging state methods for funding public schools have been launched in 45 of the 50 states and in recent years have been phenomenally successful. Since 1989 – in an era largely dominated by the conservative political agenda -- plaintiffs have prevailed in 20 of the 27 highest state court cases based on “adequacy claims” that all schools must receive the resources necessary to provide their students with the opportunity for a meaningful education that enables them to meet challenging new state standards.

Education is an especially contentious field, but there is widespread agreement that this remarkable series of legal rulings has been prompted by a crisis in the nation’s public schools; that the crisis disproportionately affects children from poor and minority families; and that nothing less than the functioning of America’s democratic institutions and its future economic competitiveness hangs in the balance.

There also is little dispute that adequacy lawsuits constitute perhaps the most significant attempt to redress educational inequality since Brown, and this has proven irksome to those who want to preserve the status quo – so much so that over the last year they have collaborated on two books that aim to derail the adequacy movement

“Adequacy lawsuits have been decided in favor of plaintiffs in states as Republican red as Kansas, Montana and North Carolina,” complain Martin R. West and Paul E. Peterson, editors of a new volume titled School Money Trials: the Legal Pursuit of Educational Adequacy.  “In the aftermath of Brown, contemporary beliefs and values have, for many judges, endowed the education clauses of state constitutions with a new meaning that has powerful implications for what states must do.”

The good news is that the West/Peterson book, together with another – Courting Failure: How School Finance Lawsuits Exploit Judges’ Good Intentions and Harm Our Children,, edited by Eric A. Hanushek – is among the surest signs that the adequacy movement has “arrived.” The two books convene overlapping all-star casts from the Hoover Institution, the Manhattan Institute, the American Enterprise Institute and other conservative bastions to level a range of attacks on the movement’s constitutional legality, the integrity of its proponents and the value of its accomplishments. Even Kenneth Starr of Whitewater fame has been pressed into the fray, offering advice that may raise the eyebrows of anyone who remembers the zeal he brought to his work as a special prosecutor:

“…the judiciary is seen as doing well when it diagnoses the condition, but is well advised to be careful and cautious in administering a proposed cure.” 

Each volume exhaustively (if not always accurately) parses the logic, outcomes and residual consequences of adequacy suits.  Ultimately, while they concede that these cases have resulted in substantial increases in educational spending and in significantly reducing historical inequities in spending between rich and poor school districts throughout the country, they wrongly conclude that there have been no corresponding improvements in student outcomes. The contributing authors also aver that the courts have overstepped the legitimate bounds of separation of powers in entering into this fray. Although Professor Hanushek concedes in the introduction to his book that “there is no denying that the political branches, for all their rhetoric, have not succeeded in solving our educational shortcomings after decades of effort,” he and almost all of the other authors in these two volumes would prefer that the courts keep their hands off these educational finance and related educational policy issues. . Yet the grim realities of the educational inequality that still characterizes – and defaces – our democratic experiment are carefully hidden from view in both Courting Failure and School Money Trials. An ideological curtain intervenes, and nowhere in the negative project of both books is there ever a positive remedy proposed. Nor do they explain how Brown’s mandate of equal educational opportunity can be achieved without the courts’ continuing involvement.

What has the adequacy movement accomplished? It is a question the contributors to School Money Trials and Courting Failure prefer to avoid. Instead, they ask what damage the movement  hasn’t caused. One would hardly expect otherwise given their respective pedigrees: Eric Hanushek has served as an expert witness for states in about a dozen school finance cases (and has been on the losing side in virtually every one of them).  Alfred Lindseth, author of the chapter “The Legal Backdrop to Adequacy,” is a senior partner with the law firm that represented the defeated defendants in New York’s CFE trial. Hanushek,  Peterson and West, as well as many of their chapter authors, including Frederick Hess ( “ Adequacy Judgments and School reform”), Sol Stern ( “ Campaign for Fiscal Equity  v. New York and the March of Folly,”), and  Herbert Walberg, (“High Poverty, High Performance Schools, Districts and States”) are ardent proponents of vouchers and other market –based solutions to educational problems, and much of their critique has to do with the courts’ failure to mandate their preferred solutions rather than any objective analysis of the actual impact of the courts’ interventions.  

In the interest of full disclosure, I should add that I am frequently attacked in the pages of both books.  For the most part, I take that, too, as a perverse form of flattery, but some of the comments made about others are simply beyond the bounds. In particular, Sol Stern, a contributing editor to the Manhattan Institute’s City Journal who writes the book’s critique of New York’s adequacy case, impugns the motives of Joe Wayland, my co-counsel, and his firm, Simpson, Thacher and Bartlett, who provided unprecedented pro-bono services worth over $25 million over a ten-year period. Stern also makes derogatory remarks with offensive racial overtones about Justice Leland DeGrasse, the African-American judge who presided over the case.

In essence, though, the grievances listed in the two books boil down to two that merit serious consideration:

• Adequacy suits have not produced any improvement in students’ performance.
• The many courts that have ruled in favor of plaintiffs have overstepped their constitutional jurisdiction.

The authors’ judgment that the adequacy cases have not proven successful in terms of student outcomes simply does not hold water. First, it is based on limited data and premature assumptions from a handful of selected cases. In recently concluded cases, such as those in New York, North Carolina and Kansas, it is too early to even consider any student outcome statistics.  

(Williamson  Evers and Paul Clopton,  authors of a chapter in Courting Failure that goes on at length about the disasters resulting from judicial intervention in Kansas City, fail to make clear that the case they were analyzing was an old federal desegregation case, and not the current state court school  funding litigation, and whatever might be said about the efficacy of the desegregation remedies adopted by the federal court there is basically irrelevant to the assessment of the impact of state court adequacy suits that  presumably are the subject of these books.)

More importantly, the authors ignore some very obvious successes. In particular, both books take a strangely elliptical approach to the case of Kentucky, the first state to which an adequacy verdict applied, and perhaps the movement’s most clear-cut success story.  In a long chapter in Courting Failure on the results of school finance cases in five states, Evers and Clopton accord Kentucky a single sentence, quoting the assertion of another researcher, George Cunningham, that despite the “enormous commitment in resources” and putting in place the “most expensive testing system of any state” (on a per-pupil basis), there is “scant evidence’ of any success in improving student academic performance.” In School Money Trials, Frederick M. Hess of the American Enterprise Institute, devotes more space to Kentucky, criticizing the outcome there in terms of the abandonment of strict sanctions and rewards and other of his favored accountability measures– yet amazingly, he makes no mention whatsoever of student performance.

In fact, one of the best analyses of the Kentucky’s adequacy case – Rose v. Council for Better Education and its aftermath (including the Kentucky Education Reform Act, or KERA) can be found in Final Test: the Battle for Adequacy in America’s Schools (The New Press, 2003), by California journalist Peter Schrag. In the chapter “Kentucky Landmark,” Schrag writes:

“Because they’ve been in place for more than a decade and because they became such pervasive national examples, Rose and KERA are far and away the best indicators of the difference that fundamental school reform can make. And on some measures, the results are stunning. In 1985-86, just before the suit was filed, Kentucky spent $3,759 per child, 48^th among the states and shamefully below the national average ($5,679). A decade later, with its $600 million annual tax increase, it was spending $5,906, 30^th in the nation and still below the national average ($6,546), but with a far narrower gap… teacher pay increased dramatically and the huge spending gaps between the richest and the poorest districts were closed… What have those changes brought? KIRIS scores consistently rose from 1993 to 1996… on the nationally normed CTBS test that’s part of the CATS system that replaced KIRIS in 1997, there were significant gains in the primary grades, from the 49^th to the 58^th percentile, in both reading and math between 1997 and 2001, but little notable improvement in the tests given at the end of grades 6 and 9.”  On the negative side, secondary school dropout rates were inconclusive and high poverty schools continued to dominate the state’s list of lowest performers. But: “On the widely respected NAEP, the numbers are much more encouraging. In 1998, Kentucky was tenth in the nation, and among the three or four states that made the highest gains in fourth grade reading since 1992, and sixteenth in eighth grade reading… In an analysis of all seven NAEP tests in math and reading given between 1990 and 1996, the Rand Corporation listed Kentucky ninth among the states making the greatest gains, better than 27 other states covered by the study. In fourth and eighth grade reading, Kentucky students scored above the national average, itself a remarkable record.” 

Schrag concludes: “There can’t be many people who doubt that the Kentucky school climate has changed, and that in most respects things have gotten better.”

Contrary to the analysis by Evers and Clopton, the latest results from Massachusetts suggest that there, too, adequacy litigation is paying dividends in terms of student achievement. A recent Boston Globe article, dated September 22 2006 and headlined “A Closing of the Achievement Gap” declared in its opening sentence: “Thirteen years after Massachusetts passed a landmark law that dramatically increased state spending on public education in exchange for higher standards, we are witnessing real public policy payoffs. You can see that in the impressive statewide MCAS [Massachusetts Comprehensive Assessment System] results for the class of 2008.”

The story went on to report  that 84 percent of students who will graduate in ’08  have passed both the math and English state standardized tests on their first try, up from 81 percent last year. The proportion of students scoring at the proficient or advanced levels increased from 64 percent on the English exam to 70 percent and from 61 percent to 67 percent on math. And there were also major gains for African American and Hispanic students. Sixty-eight percent of blacks earned their competency determination on the first try, up from 58 percent last year (and just 37 percent in 2001), while 61 percent of Hispanic students passed both tests, up from 53 percent last year and just 29 percent in 2001. There were double-digit increases in the percentage of black and Hispanic students who scored proficient on the English exam.

Certainly these states have not been without their continuing failures. It is true, as Hess writes, that problems have arisen in Kentucky in recent years. After more than a decade of improvement, the commitment to both accountability and incentives has slipped, to the point where plaintiffs are pursuing a second adequacy suit.  But this is evidence of a lack of political will, not of flaws in the court’s original remedy. Nor is it reasonable to suggest that -- because they haven’t magically eliminated the education achievement gap or demonstrably boosted test scores as of yet in some states -- adequacy suits are a failure. The achievement gap is a huge, intractable problem that has defied solution by the executive and legislative branches for decades. The courts in a few years time can not be expected on their own to overcome the impact of decades of inequitable funding and centuries of oppressive treatment of racial minorities. The courts can, however, play an important --- and, indeed, an indispensable ---- role as part of a serious national effort to provide meaningful educational opportunities to all of our students.

This leads us to the second major contention, put forth in both School Money Trials and Courting Failure, that the courts have no constitutional ground for intervening in school matters. That argument rests in large part on the concept of original intent – the assertion that constitutions are not scripted as guidelines to be reinterpreted in the context of changing times, but instead as fixed decrees that must be understood exactly as their framers meant them to be applied at the time of their creation.

“For those that believe that judges have a duty to interpret a state constitution according to either the ‘original intent’ of those who wrote it or the ‘plain meaning’ of the document itself, there is little basis for judicial determinations requiring legislatures to spend more for education,” West and Peterson write. “But for those who see state constitutions as living documents that acquire new meaning over time, the original meaning of the clause is merely a point of departure.”

Of course, holding constitutional framers to their original intent would necessitate the rolling back of Brown itself. More germane at this particular moment in our history, however, is that this stance denies the ever-increasing importance of education in the modern era.

For example, in Courting Failure, Alfred Lindseth argues that there is little relation between long-standing language in the Wyoming State Constitution requiring a “thorough and efficient” and “complete and uniform” education and the 1995 legal ruling in Campbell County School District v. Wyoming, in which the court mandated legislative action to provide “a thorough and uniform education of a quality that is both visionary and unsurpassed.” 

For starters Lindseth doesn’t always fully and accurately quote   the Wyoming Court in his analysis of their decision. He says, for example, that the Court also stipulated that the state must have “the best” system of education, when in fact it also made clear that it was calling upon the legislature to provide an education that is “the best we can do”[1] – two very different ideas. And while Lindseth generally chooses to emphasize the most sweeping phrases from the Wyoming Court’s decision, the Court’s actual constitutional interpretation was quite practical and measured in requiring schools that become “productive without waste” and “reasonably sufficient for the appropriate or suitable teaching/ education/ learning of the state’s school age children.” The Wyoming Court asserted that these strictures were fully in keeping with the expectations of those who wrote this constitutional clause in 1889, since the framers intended to provide the states’ students the “opportunity to become equipped for their future roles as citizens, participants in the political system, and competitors both economically and intellectually.”

Surely the Court was right that the framers of the Wyoming’s constitution recognized education as a key engine of growth, productivity and prosperity that must ever be “appropriate to the times.”  In their own day, when America – and certainly Wyoming -- was primarily a land of farms that functioned, for the most part, in economic isolation, a rudimentary knowledge of letters and numbers might have been “appropriate to the times.”  In ours, those demands have increased exponentially, as has the competition. Simply navigating one’s own medical expenses or insurance – let alone understanding a proposed zoning change, or the impact that global warming might have on one’s life in the near future– presumes a vastly higher level of literacy, not to mention knowledge of biology, technology, world affairs and more.

The framers of New York’s constitution explicitly foresaw such developments. The CFE case turned in part on hard evidence that the constitutional framers clearly recognized that the importance and value of education would only increase -- and that they did, indeed, intend for future interpreters to understand the document in terms of contemporary need.

In one of the more dramatic aspects of its decision, the New York Court of Appeals engaged in a dialogue across the centuries with the constitution’s framers. We (the plaintiff’s counsel) had unearthed a report from 1894 submitted by the Committee on Education to the New York State Constitutional Convention proposing language – subsequently adopted as Article 11, section 1 -- to more uniformly deliver quality education across all the state’s common schools. The report, which explicitly argued for educational adequacy, stated that the “public problems confronting the rising generation will demand accurate knowledge and the highest development of reasoning power more than ever before.”

Judith Kaye, Chief Judge of the State of New York, specifically cited this phrase in her majority opinion in the Court’s second CFE ruling:

 “…a sound basic education conveys not merely skills, but skills fashioned to meet a practical goal: meaningful, civic participation in contemporary society. This purposive orientation for schooling has been at the core of the Education Article since its enactment in 1894. As the Committee on Education reported at the time, the ‘public problems confronting the rising generation will demand accurate knowledge and the highest development of reasoning power more than ever before…’ In keeping with this core constitutional purpose … the trial court took evidence on what the ‘rising generation’ needs in order to function productively as civic participants, concluding that this preparation should be measured with reference to the demands of modern society and include some preparation for employment.”[2]

The Court affirmed that lower court ruling and added that “the definition of a sound, basic education must serve the future as well as the case now before us.”

In addition to their contention that the courts have misinterpreted the language in the educational clauses of the state constitutions, the authors of Courting Failure and School Money Trials further argue that courts’ intervention in school matters violates the constitutional separation of powers – and that courts simply aren’t qualified to handle an expanded role. For example, Courting Failure includes a policy statement of the “Koret Task Force,” a Hoover Institute group whose membership overlaps with many of the authors of these two volumes, that challenges both the legitimacy of the courts’ involvement with educational appropriations, “a position never envisioned by the framers of state and federal constitutions, “and “the lack of the court expertise in matters of schools….” 

The answer to these charges is, first of all, that courts in adequacy cases do not seek to involve themselves in detailed issues regarding educational appropriations. Consistent with the long-established constitutional principle that it is the courts’ duty to uphold rights guaranteed by a constitution ---- and especially the rights of “discrete and insular” minority groups whose needs are often ignored by legislative majorities ---- state courts in the adequacy cases have invalidated state financing schemes that disadvantage urban and rural minority groups. Not a single court has, as part of its initial constitutional determination, told the legislative and executive branches how much they should spend or precisely how to reshape their existing funding formulas. Typically, the Court holds that the existing system is unconstitutional and allows the other branches a reasonable period of time to determine what levels of funding and what formula revisions are needed to provide a suitable opportunity for all students to meet the state’s own learning standards.  

In some cases, as most recently in Arkansas, Kansas, and New York, courts have had to delve into cost determinations and other specific education finance issues only because the legislative and executive branches had refused to do their jobs. In all three of these recent cases, the political branches had proved unwilling or unable to revamp the state’s unconstitutional finance systems, leaving the courts the Hobson’s choice of taking enforcement action or allowing major constitutional violations -- and the educational needs of millions of school children ---- to remain unaddressed indefinitely. Yes, violations of separation of powers were committed in these instances, but the violators weren’t the courts – they were the legislative and executive officials who failed to respond to the courts’ properly issued constitutional rulings.

Regarding the courts’ capability to engage in educational policy issues when necessary, a number of years ago a colleague and I conducted an extensive empirical analysis of what courts actually did in over 50 educational policy litigations. [3] We found that evidentiary records accumulated in court cases were more complete and had more influence on the actual decision-making process than did the factual data obtained through legislative hearings, which tended to be window dressing occasions organized to justify political decisions that had already been made. Moreover, rather than purporting to have the expertise to determine educational policy issues themselves, judges typically relied on experts in the field or pressured state and local school officials to negotiate policy solutions to resolve the constitutional issues.

The cost studies that have been central to many of the finance reforms that have emerged from the adequacy cases are a prime example of how courts handle these complex funding issues.  In many of the cases, the judges direct the state defendants to undertake an objective analysis of the costs of an adequate education. The decisions regarding the methodology to be used, the personnel to undertake the analyses, and the policy decisions that will result from the cost analysis data are left to the defendants’ discretion. It is only where the state refuses to take any action whatsoever in response to its own experts’ recommendations, as in New York and Kansas, or where there is a substantial dispute as to whether certain aspects of the reforms adopted by the legislature satisfy particular constitutional requirements, as in Wyoming, that the courts get involved in reviewing any of the details of these cost studies.

Eric Hanushek decries the increasing reliance on cost studies because the various methodologies on which they are based rely on “professional judgments” rather than on “accepted scientific standards.”  Although it is true that there is no “science” that will yield a precise funding figure that can guarantee specific student outcomes, in the real world of policy alternatives, the reliance on cost studies is a vast improvement over previous practice. Traditionally in many states, determinations regarding the amount of funds that were dedicated to education and their allocation to the various school districts were secretly decided through political deals by the ubiquitous “three men” --- the governor and the two legislative leaders ---- in a back room. There was not even a pretense that these decisions were made objectively or on the basis of any data regarding actual student needs. The professional judgments that go into the cost studies, by way of contrast, are based on extensive need-based data and these judgments are transparent and are open to analysis, criticism and revision by policy makers, and the public.

Somewhat inconsistently, after arguing that courts have no business being involved in education finance decisions, many of the authors criticize the judges for failing to impose specific accountability requirements on the states to ensure that the extra money that results from their decrees is spent well. Lindseth, for example, complains that “Nary a word is said about reform at the local district level or about alternatives of educational reform that might hold out more hope for success.” Lindseth and most of the other authors in these volumes would have the judges impose particular market-oriented reforms of their liking. Ideological impositions of this sort clearly are not a proper function for the courts. I would agree, however, with the general proposition that the courts should take appropriate steps to ensure that effective accountability mechanisms are in place to safeguard the spending of these large sums. 

Some courts have included accountability requirements in their remedial orders. Because of sensitivity to charges of “judicial activism,” however, most courts avoid taking these appropriate steps and even when they do call for accountability in general terms, they often don’t follow through to ensure effective compliance. Last October, in the final legal argument in the CFE case, the state’s attorney joined me and the other plaintiff attorneys in asking the New York Court of Appeals to impose specific planning and reporting requirements on the New York City Department of Education to ensure that the billions of dollars in extra spending that they were slated to receive would be effectively spent. One of the judges asked the state’s attorney whether the legislature had the authority to impose these requirements. “Yes, they do,” she answered, but then she also told the court that for the past two years they had been unable to come to an agreement to do so. Nevertheless, in the final decision it issued a month later, the Court refused to order these undeniably necessary safeguard measures.

The aggressive stance against court involvement in education adequacy cases taken by most of the authors in Courting Failure and School Money Trials mirrors the aggressive turf battles waged by the executive and legislative branches in many states against the courts. Everyone is harmed by these contests, and students are harmed most of all. The truth is that reforming the nation’s education system is a massive job that requires a colloquy, not a contest, between the three branches of government. And it is equally true that while money alone cannot fix the problems in our schools, it must be the starting point for this colloquy because adequate resources remain the sine qua non for addressing those problems at all.

In his book on adequacy, Peter Schrag calls our society’s willingness to fairly fund education “the final test” of our commitment to the vision expressed in Brown.  Only when all the branches work together, each in the roles for which it is best suited, can we pass that test and begin to achieve success in providing meaningful educational opportunity to all students and in overcoming the achievement gaps.

Published Monday, Oct. 1, 2007