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2 School Finance Litigation in the Name of Educational Equity: Its Evolution, Impact, and Future Paul A. Minorini and Stephen D. Sugarman Introduction Since the 1960s in America, individuals and groups seeking an increased level or share of valued public benefits have often turned to courts for assistance, hoping thereby to achieve their goals outside the traditional political process. Courts have been especially receptive to these pleas when they are made by the politically powerless and deal with matters of fundamental importance. As this new judicial activism started taking hold, lawyers and scholarly advocates turned their attention to the financing of our public schools. They focused on the way in which most states have historically relied on local property taxes as a substantial source of funding public education (Enrich, 1995). Those early advocates (and many subsequent legal scholars) viewed equity as an essential component of the principle of basic fairness. Yet, traditional school finance arrangements, they argued, created grave inequities for children in the availability of educational resources and opportunities. In light of the enormous importance of education, it is not surprising, therefore, that those inequities have been the subject of intense litigation. What is surprising, however, is the predominantly state law and state court character of this litigation. Federal courts and federal law have played the central role in lawsuits concerning other aspects of public education such as school desegregation, student rights to free expression, and the needs of the disabled and pupils with limited English proficiency. But the federal constitutional challenges to school finance inequalities that were brought in the late 1960s and early 1970s were ultimately unsuccessful.
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Nevertheless, school finance litigation has flourished in state courts. In these cases, challengers have relied on equal protection clauses 1 and/or education clauses2 contained in state constitutions. By now, lawsuits challenging the legality of state systems of public school finance under state constitutions have been brought in at least 43 states. In 19 states, courts have declared school funding systems unconstitutional and have ordered reforms—with varying degrees of specificity and success. Court decisions in 24 states have rejected school finance claims. In 9 of those latter states, however, challengers subsequently sought relief under a different legal theory, and most of those cases are currently pending. If history is any guide, school finance litigation promises to remain active well into the next century, at least in those states with perceived educational "haves and have nots." This chapter examines the origins, evolution, achievements, and future directions of school finance litigation. Despite dramatic state-to-state differences, the courts across the nation increasingly have become a voice in the school finance debate. As will be seen below, however, the final resolution of complex school finance issues in nearly all states continues to be determined largely through the legislative and executive processes. Early Thinking: Wealth-Based Discrimination And The Federal Constitution During the late 1960s, several scholars and lawyer activists began examining America's system of school finance, in which, everywhere but in Hawaii (which has a single statewide system) and the District of Columbia, money raised by local school districts through local property taxes was the heart of the scheme. These newcomers to the world of school finance learned what experts in the field had long known—that, by giving local governments the primary power and responsibility to raise funds and set spending levels in public schools, states had created systems that substantially advantaged some children over others. Notwithstanding the publication of the Coleman Report (1966), which raised doubts about how much money really mattered in improving student outcomes, these scholars and activists found a great deal unfair about the funding of the nation's public schools. These early reformers put forward new legal theories, which in turn had major implications for the role taken by judges and legislatures in changing the way public schools would be financed. In other words, although each claimed that the existing system violated the requirement of the Fourteenth Amendment to the United States Constitution that states not deny individuals "equal protection of the law," they differed greatly as to what equal protection required. Arthur Wise was one of the first to lay his ideas out in print (Wise, 1968). For Wise, the problem was that school spending varied dramatically from school district to school district within most states. Indeed, in many states high-spending
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districts were able to lavish two, three, and in some cases even four or more times as much per pupil on their students than what low-spending districts were able to spend on their students. The legal challenge he developed drew upon two important judicial developments in the 1960s—the school desegregation cases and the reapportionment cases. Based on the school desegregation cases, Wise argued that public education was a ''fundamental interest" for equal protection purposes and thus could not be distributed unequally within any state absent a "compelling state interest" for doing so (and, he argued, there was no such compelling interest).3 Drawing on the "one man-one vote" principle of the reapportionment cases,4 Wise advanced a similar standard for public school finance: one scholar-one dollar. In short, under Wise's theory, the federal equal protection clause required an end to unequal spending from district to district. This push for dollar equity is what some scholars have referred to as horizontal equity (see Berne and Stiefel, Chapter 1 in this volume). Looking at the same spending patterns, UCLA law professor Harold Horowitz turned to a different area of the law from which he developed the principle of geographic uniformity (Horowitz, 1966; Horowitz and Neitring, 1968). He argued that, like a state's law governing murder, school spending could not vary within a state based on geography alone. To many, the implication of this argument appeared to be the same as would follow from Wise's principle—uniform per-pupil spending statewide. But this was not necessarily so. Under Horowitz's theory, a legislature might decide, for example, to spend more money on disabled or at-risk children. If it turned out that more of those children resided in some school districts than in others, then more per pupil on average would be spent there. Such district-to-district differences would be acceptable under Horowitz's principle because those differences would be based on student need and not geography. By contrast, it was not entirely clear just how Wise's "one dollar-one scholar" principle might, if at all, accommodate differential spending based on different pupil needs. Some legal-aid lawyers who tackled the issue found both the Wise and Horowitz principles ill-suited to their purposes. They developed an alternative theory that focused primarily on unequal student need and the resulting imperative, as they saw it, to spend more than average on the schooling of low-achieving children from low-income families, many of whom lived in urban areas. Wise's equal spending rule would clearly not suffice. Horowitz's geographic uniformity theory only permitted, but did not mandate, what these advocates sought to have the courts require. The basic thrust of the legal-aid lawyers' "needs-based" constitutional claim was that rich and poor children had a right to have their educational needs "equally" met. This principle, which some scholars have termed vertical equity, required unequal spending (see Berne and Stiefel, Chapter 1 in this volume). The legal-aid lawyers and their clients got to court first.
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A central difficulty with the needs-based claim existed, however. How much spending does any child, or class of children, "need"? If "need" implies a level of school spending necessary to achieve some sort of educational "outcome" standard, then exactly what outcome? And if ''need" is not about outcomes, what does it involve that a court could address? Would a court order whatever spending education experts thought is "needed"? But which experts? And "needed" for what? In other words, the problem lay in identifying an acceptable constitutional principle for courts to announce that contained the certainty and clarity that seemed necessary (at least at the time) before the claimants had any hopes of winning an equal protection case. Federal courts were indeed troubled by just such questions when faced with early needs-based claims, and these suits were promptly dismissed. 5 McInnis v. Shapiro, a 1968 Illinois case, was first. The federal district court panel rejected the claimants' theory precisely on the ground that it could not discern judicially manageable standards to gauge what students' needs were and whether they were being met. A similar conclusion was soon reached by a federal district court panel in Virginia in Burrus v. Wilkerson (1969). The Burrus court concluded that "courts have neither the knowledge, nor the means, nor the power to tailor the public moneys to fit the varying needs of these students throughout the State" (Burrus, 1969:574). Both McInnis and Burrus were appealed to the United States Supreme Court, where they were affirmed without comment. Advocates would have to wait several years for the nation's highest court to opine on the merits of school finance challenges. In addition to the Wise, Horowitz, and needs-based approaches, a fourth legal strategy for attacking school finance inequities emerged in the late 1960s (Coons et al., 1969, 1970). Working at Northwestern University Law School, Professor John Coons and two students, William Clune and Stephen Sugarman, developed a theory that combined a concern about poverty with the idea that education was a constitutionally fundamental interest. In this respect, their legal strategy was not unlike that of the legal-aid lawyers. But the Coons team cast the shortcoming of America's school finance systems in a different way. To them, the constitutional evil was that the "poor" school districts had little property wealth to tax in order to support their local schools, whereas "rich" districts had lots of it. Although states offset some of the rich districts' wealth advantage through a variety of state aid formulas designed to assure all pupils some minimum level of spending, enormous wealth advantages remained. Furthermore, the poor districts tended to impose on themselves higher tax rates per dollar of assessed value of property than did their wealthy counterparts. Yet despite the greater "effort" made through higher tax rates (and notwithstanding the state aid they received), property-poor districts had less money per pupil to spend. This wealth discrimination, argued the Coons team, was unconstitutional. They dubbed their core legal principle "Proposition I (later referred to as the theory of "fiscal neutrality"): the quality of public education, measured most
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commonly by looking at dollar inputs, may not be a function of wealth other than the wealth of the state as a whole. Since Proposition I attacked the formal structure of school finance systems, it would be relatively easy for the courts to apply, unlike the needs-based theory of the legal-aid advocates. Moreover, so long as the amount of resources available to a pupil was not determined by the amount of the district's local wealth, it left room for the state to choose among several finance options. Under Proposition I, states could adopt Wise's one dollar-one scholar idea. States also could elect to spend more on educationally needier poor children than on children from other families—the goal of the legal-aid lawyers. Moreover, in contrast to Horowitz's theory, Proposition I allowed geographic-based differences in spending. For example, if two districts were equally wealthy, it would not be unconstitutional for one to choose to spend more than the other by taxing itself more. Put differently, the Coons team sought to end the long-existing politics of school finance, in which the poor districts were pitted against the rich ones, and to replace it with a politics that concerned itself more with educational objectives. To demonstrate how a new school finance scheme could meet their principle of fiscal neutrality and yet tolerate geographically different spending levels, Coons and his colleagues developed a mechanism that they called "district power equalizing." That system sought, through the use of a state aid formula, to make every district effectively equally wealthy. Once that was assured, the state might permit districts to tax as high or low as they wished; the resulting geographic inequalities would be allowed under Proposition I because they would reflect differences in tax effort, not wealth. Coons and his colleagues emphasized this remedy because they recognized the traditional importance of local control over education and anticipated the reluctance of the federal judiciary to override that control. Significantly, under the Coons team's theory, the objectionable discrimination on the basis of poverty was based on school district poverty, rather than personal poverty, and was measured by the assessed value of property per pupil that a district could tax. Low property wealth per pupil might have been a good proxy for concentrations of family poverty in some districts, and indeed the low-wealth districts tended to be home to lower-income families. But this certainly was not the case in every district. In fact, many large cities were relatively "wealthy," often containing some well-to-do families and valuable commercial property. As a result, despite having many poor residents, large cities often spent more on their students than the statewide average per pupil, although usually considerably less than was spent in nearby wealthy suburbs. This made the Coons team's theory unattractive to some legal-aid advocates for poor children living in large urban centers, whose goal was to achieve "equity" in opportunity for the pupils they represented even if that meant more unequal state spending. But unlike the claims of the lawyers who brought the earlier needs-based cases, the Coons team's legal theory was soon embraced in two important cases:
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by the California Supreme Court in Serrano v. Priest (more on that in the following section) and by a lower Texas federal court panel in Rodriguez v. San Antonio Independent School District.6 As a result, it appeared for a short time that the federal Constitution—and the Coons team's Proposition I—would indeed play a central role in shaping America's school finance system. The lower court ruling in Rodriguez was appealed to the United States Supreme Court, and in 1973, in a narrow 5-4 decision, the Court rejected the Coons team's theory. This decision dashed the advocates' hopes for a federal remedy to school finance inequities (Rodriguez, 411 U.S. 1, 1973). The plaintiffs in Rodriguez consisted of a class of children throughout the state of Texas living in districts with low per-pupil property valuations. In line with the Coons team's theory, they claimed that the Texas school finance system's reliance on local property taxation unfairly favored more affluent districts, creating substantial inter-district disparities that violated the equal protection clause of the Fourteenth Amendment. The plaintiffs asserted—and the lower court agreed—that, as a matter of federal constitutional law, education was a "fundamental interest" and wealth was a "suspect classification," thus requiring the application of "strict judicial scrutiny" to the state's wealth-based school finance scheme. With no "compelling interest'' in discriminating against low-wealth districts, the Texas plan (and by implication the school finance plans of virtually every state) would have to change. The Supreme Court majority found several things wanting in the plaintiffs' case. First, the Court rejected the plaintiffs' invitation to treat wealth generally as a "suspect classification" (as it had treated race, for example), thereby triggering the need to justify unequal treatment with a compelling reason.7 Moreover, the Court distinguished within a group of prior decisions upon which the Coons team relied. The two most important cases involved states denying people access to divorce and to an appeal of a criminal conviction. But the Court emphasized that in those other cases a class of indigent persons were completely precluded from enjoying the desired benefit (Rodriguez , 1973:20). By contrast, the plaintiffs in Rodriguez could not demonstrate to the Court's satisfaction that the Texas school finance system disadvantaged any class of persons fairly definable as indigent or with incomes below any designated poverty line. On the contrary, the primary basis for the plaintiffs' claims was discrimination based on district, not personal wealth. And, as the Court observed, there was no necessary correlation between the two. Unlike the prior cases, Rodriguez did not involve an absolute deprivation of any benefits since all of the plaintiff children were receiving a free public education and their districts were assured at least some minimal level of funding. The Court also decided that it would not treat education, as it had treated the right to travel for example,8 as a "fundamental interest" any infringement of which was subject to strict judicial scrutiny. The Court acknowledged the "grave significance of education both to the individual and to society" but nevertheless
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concluded that the importance of a government service to society does not determine that the service is fundamental for purposes of an equal protection analysis (Rodriguez, 1973:30). For the Court, a right was fundamental only if either explicitly or implicitly guaranteed by the Constitution, and neither was the case with respect to education. Nearly a decade later, in Plyler v. Doe (487 U.S. 202, 1982), the Court arguably came out the other way on the question of whether education is a constitutionally fundamental interest, but that case, unlike Rodriguez, involved an absolute denial—illegal immigrant children were barred from school entirely. Recognizing that the Court might take a narrow view of education as a constitutionally fundamental right, the Coons team, as friend of the court, argued more broadly that education was fundamental because it enabled people to exercise effectively their right to vote and their First Amendment right to free speech. The Court, however, sidestepped that First Amendment argument. Again, because Texas guaranteed pupils at least a minimum level of spending, the Court expressed doubts that the differential spending levels alleged by the plaintiffs interfered with First Amendment rights, both as a constitutional matter and empirically (Rodriguez, 1973:36, 42). Having rejected the application of the strict scrutiny test, the Court's majority next asked whether Texas had a "rational basis" for its finance scheme. The tradition of local control over education easily provided such a basis. Three justices dissented in Rodriguez, broadly endorsing the Coons team's legal theory. A fourth, Justice White, dissented on narrower grounds, concluding that the Texas school finance system effectively denied local control to poor districts and thus was irrational. As he saw it, property-poor school districts did not have control over their inability to raise revenues for education, and in fact were often forced to tax their meager resources at rates much higher than the wealthier districts. The Rodriguez majority's reluctance to involve the federal courts in state school finance issues was driven by important concerns about federalism. As the Court observed, "it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every state" (Rodriguez, 1973:44). The Court expressed further concern about the delicacies of the state/federal relationship, noting that "the judiciary is well advised to refrain from imposing on the states inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even the partial solutions to educational problems and keeping abreast of ever changing conditions" (Rodriguez, 1973:43). These early school finance cases, as well as most subsequent ones, were in no respect cast as matters of racial discrimination. The decision to leave race out was partly based on the fact that, with the end of the system of separate black and white schools in the wake of Brown v. Board of Education, no formal structural
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discrimination existed against blacks in the funding of public schools. It also was partly a matter of uncertainty as to whether blacks as a class would be helped by successful school finance litigation. Advocates believed that black children living in low-spending districts would benefit, but many African-Americans were increasingly living in cities where the school finance problems were more complex than simply having a low property tax base and, as a result, spending less per pupil than elsewhere in the state. Rodriguez abruptly cut off efforts to reform unequal state school finance systems through federal litigation based on the United States Constitution,9 but it certainly did not end the school finance litigation reform effort. Turning To State Constitutions Overview With the door to federal courts closed by Rodriguez, and faced with the persistence of large disparities in the availability of educational resources and opportunities, advocates turned to state courts for relief. State court litigation has continued since the early 1970s and has reflected the variety of legal theories initially advanced by reformers in the late 1960s (see Table 2-1 through 2-6). In 19 states, as noted above, state school funding systems—and in some cases the entire education system—have been declared unconstitutional. While results in the state cases have been mixed (24 cases rejected the plaintiffs' claims, with 9 of TABLE 2-1 Overview of Litigation Involving State Education Finance Systems Plaintiffs won at state supreme court levela 19 Plaintiffs lost at supreme court level; no further complaints filed or further complaints also lostb 12 Plaintiffs lost in prior action; further complaints have been filed 9 Litigation is present; no supreme court decision has been rendered 3 No litigation is present or case is dormant 7 a Some of these decisions stopped short of declaring entire finance systems unconstitutional, but instead established certain entitlements to educational services for all students or declared parts of systems unconstitutional. b Not all of these decisions ruled that the state finance systems were constitutional. Some rejected plaintiffs challenges on the ground that the asserted claims were not supported under state law. SOURCE: Authors' calculations.
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TABLE 2-2 Plaintiffs Won at State Supreme Court Level (19)a State Decision Year(s) Notes Alabama Harper v. Hunt 1993, 1997 1993 trial court ruled system unconstitutional—not appealed and therefore final; 1997 high court ruling gave legislature one year to develop remedy Arizona Roosevelt Elem. Sch. 1994, 1997 Dist. 66 v. Bishop Arkansas Dupree v. Alma Sch. Dist. 1983 1983 lower court ruled system unconstitutional—not appealed Lake View v. Arkansas Field 1994 California Serrano v. Priest 1971, 1977 Connecticut Horton v. Meskill 1977 Sheff v. O'Neill 1996 Kentucky Rose v. The Council 1989 Massachusetts McDuffy v. Secretary of Educ. 1993 Missouri The Committee v. Missouri and Lee's Summit P.S.U. v. Missouri 1996 High court upheld legislation passed in response to a 1993 lower court decision declaring finance system unconstitutional Montana Helena Sch. Dist. v. Montana 1989 Montana Rural Educ. Assoc. v. Montana Filed 1993 New Hampshire Claremont v. Gregg 1997 High court found that education clause requires funding for adequate education New Jersey Robinson v. Cahill 1973, 1976 Abbott v. Burke 1990, 1994, 1997, 1998 North Carolina Leandro v. North Carolina 1997 Supreme Court overturned dismissal and remanded for trial on merits Ohio DeRolph v. Ohio 1997 Tennessee Tennessee Small Sch. Systems v. McWherter 1993, 1995 Texas Edgewood v. Kirby 1989, 1991, 1992, 1995 Vermont Lamoille Co. v. Vermont 1997 Brigham v. Vermont 1997
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State Decision Year(s) Notes Washington Seattle v. Washington 1978 Tronson v. Washington 1991 West Virginia Pauley v. Kelly 1979, 1984 Pauley v. Bailey Filed 1994 Wyoming Washakie v. Herschler 1980 Campbell v. Wyoming 1995 a Some of these decisions stopped short of declaring entire finance systems unconstitutional, but instead established certain entitlements to educational services for all students or declared parts of systems unconstitutional. SOURCE: Modified from Hickrod et al. (1997). those states embroiled in new legal actions), the litigation certainly has been a force in shaping school finance debates nationwide. (One has to be cautious when using any "scorecard" of these cases. In some states, litigation never reached the state's highest court. In other states, such as Missouri and Oklahoma, the mere threat of filing a lawsuit has been enough to bring about some school finance reform. A court decision subsequently upholding the reformed system would mean something very different from a defense victory in other states.) Many of the state court decisions striking down their state's school finance scheme rely on the state constitution's equal protection clause.10 Early on, it became clear that, despite similar wording, a state court might interpret its own state constitution's equal protection clause differently than the federal Constitution's. For one thing, the state court might declare education to be a fundamental interest and/or school district wealth a suspect classification for purposes of state constitutional law, even if these propositions do not apply in federal constitutional litigation.11 In that event, the state court would likely follow the reasoning expressed by the group of three dissenters in Rodriguez. Alternatively, a state court could follow the lead of Justice White and find its state school finance system irrational.12 Many other state courts have relied in whole or in part on state constitutional provisions specific to education in deciding school finance cases. Some of those decisions use the state constitution's education clause to buttress the equal protection analysis, relying in part on the presence and content of the education clause to support treating education as a fundamental right (Enrich, 1995). Others, however, interpret the education clause independently—as itself requiring some degree of equity in educational funding or opportunity (Underwood, 1995; Enrich, 1995). In reviewing state school finance cases, both the particular state constitutions
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TABLE 2-3 Plaintiffs Lost at Supreme Court Level; No Further Complaints Filed or Further Complaints Also Lost (12)a State Decision Year(s) Notes Alaska Matanuska-Susitna Borough v. Alaska 1997 Florida Coalition v. Childs 1996 High court ruled that no cause of action presented Georgia McDaniels v. Thomas 1981 Idaho Thompson v. Engelking 1975 Idaho Schools for Equal Educ. Oppty 1993 Kansas Unified Sch. Dist. 229, et al. v. Kansas 1992 Unified Sch. Dist. 244, Coffey Co., et al. v. Kansas 1994 Unified Sch. Dist. 217, Rolla, et al. v. Kansas 1994 Maine M.S.A.D. #1 v. Leo Martin 1995 Michigan East Jackson Public Sch. v. Michigan 1984 Nebraska Gould v. Orr 1993 High court ruled that no cause of action presented North Dakota Bismarck Public Schools v. North Dakota 1994 Majority (3) ruled in favor of plaintiff, but North Dakota requires four justices to declare a statutory law unconstitutional Oklahoma Fair School v. Oklahoma 1987 Rhode Island City of Pawtucket v. Sundlun 1995 Virginia Scott v. Virginia 1994 a Not all of these decisions ruled that the state finance systems were constitutional. Some rejected plaintiffs challenges on the ground that the asserted claims were not supported under state law. SOURCE: Modified from Hickrod et al. (1997). on which the courts rely and the tradition of judicial review in the particular state should be considered. Many state constitution education clauses provide that the state shall provide for a "thorough and efficient" system of public schools, others merely require "efficient," still others call for "ample," and so on. Moreover, beyond its words, each state constitution has its own political history and its own prior history of judicial interpretation.13 Hence, while some scholars (McUsic, 1991; Thro, 1993) have attempted to categorize state education clauses based
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then candidly conceded that insufficient funds were appropriated to implement the new system. Moreover, it is politically naive to expect the Wyoming legislators to be blind to what things cost and what they think the state can afford as they go about deciding what a "proper educational package" for all Wyoming students should be. Nonetheless, the thrust of the Wyoming court's decision is to try to change the political dynamics of its legislature's approach to school finance and education more generally. Events since the court's decision, however, illustrate the intensely political nature of school funding controversies. The legislature worked diligently over the course of a year and a half to meet the court's requirements, and in June of 1997 passed a revised school funding plan. The Governor soon vetoed that bill, however, prompting both the original plaintiffs and several state legislators to return to court to compel compliance. In the spring of 1998, the legislative and executive branches came together and worked out a reform that they hope will comply with the court's orders. The new school finance law raises school district funding from the state by $76.5 million, increasing the upcoming year's total education budget to $632.3 million. School funding is now based on a professional model of what sums ought to suffice to provide a high-quality public education for all Wyoming schoolchildren—taking into account differences among districts in both educational costs and pupil needs. The new law also establishes student assessment standards. Vermont While adequacy claims are now dominating the field of school finance litigation, some cases continue to be fought on traditional equity grounds. For example, a group of students and parents in property-poor school districts in Vermont field suit challenging the constitutionality of the state school funding system, which allowed 79 percent of a school district's funds to be raised locally. The result of heavy reliance on local property taxes as a source of funding for the schools was that some wealthy districts spent twice as much per pupil as other less affluent districts. In its 1997 decision, the Vermont Supreme Court found that such disparities in resource availability, and the consequent disparities in educational opportunities throughout the state, violated the state constitution's equal protection clause (Brigham, No. 96–502, Vt. 1997). Reminiscent of the Coons team's theory, the Vermont decision suggests that future school finance systems in Vermont will not be able to have the wealth of a district's property base determine the educational resources and opportunities available to students. In response to the decision, the Vermont legislature passed a new school finance, education reform, and tax reform plan during the 1997 session, which includes several components. This plan: creates a per-student block grant ($5,000 for 1997) that is given to each
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district based on its equalized pupil count; the block grant will be adjusted by annual price index; pupil count is weighted to reflect poverty, primary/secondary students, and limited English proficiency; appropriates additional $9.6 million for capital construction; allows discretionary spending by local districts above the block grant and provides for equalization of ability to raise funds for this spending; includes several education reforms including student standards, new assessments, school improvement grants, early childhood programs, and others; replaces local property taxes for schools with a statewide education property tax, setting one rate for homestead and nonresidential property; and finances the changes through a statewide education property tax and various tax increases. Ohio Recent court decisions in Ohio blur the lines between equity and adequacy. In the 1970s, an Ohio Supreme Court decision had squarely rejected a traditional equity challenge to the state's school finance system. In 1991, however, a coalition of plaintiffs filed suit claiming that the education provided in their schools was constitutionally inadequate. Following a lengthy trial, the court ruled for the plaintiffs, relying heavily on the Kentucky court's prior articulation of adequacy standards in elaborating the Ohio constitution's requirements. That trial court decision, however, was quickly appealed by the state attorney general's office. In 1997, the Ohio Supreme Court upheld the trial court's decision, but the high court focused more on educational inputs, traditionally associated with the equity theory, than on outputs, which tend to be more of a focus in adequacy decisions (DeRolph v. State, 79 Oh.St.3d 297, 1997). The court criticized the heavy reliance on local property taxes to fund schools, reminded the legislature of their responsibility to support a "statewide" education system, called for a "systemic overhaul" of the funding system, and gave the legislature a year to develop a new finance system. Despite the court's emphasis on input equity, however, the state legislature's response to the court was more in keeping with the trial court's broader ruling. Like the Wyoming legislature, the Ohio legislature attempted to determine what it would cost to provide all students in the state with an adequate and equitable education. To determine that amount, the legislature looked at the spending patterns of districts within the state that were in compliance with state input and outcome standards. Using an average spending level for those districts, and adjusting for differing costs around the state and for differing need-levels of student populations, the legislature has established a baseline level of school spending that each district will be assured. It remains to be seen whether these new arrangements will be the subject of legal challenge.
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Summing Up: The Future Of School Finance Litigation As we have seen, most of the early legal theories attacking school funding arrangements emphasized equality in a way that implied either a dramatic raising up of the wealth and/or spending level of poor, low-spending districts or a leveling down of the advantaged districts (or a combination of both). The Coons team, for example, had counted on the strong commitment to high spending of many of the high-wealth/high-spending districts as a force that would promote greater educational spending across the board. Even though this did not happen in California, it does appear to be a major consequence of successful school finance "equity" cases in other states (Evans et al., 1997). Nowadays, however, the emphasis of many school finance reformers has shifted. For one thing, restraining or bringing down spending at the top is very unpopular (in some quarters some families shift to private schools, or equity-evading tactics in wealthy communities result in the creation of community foundations that supplement the public school funding provided by government). Yet, to raise spending everywhere up to the top (even if a few outlier districts are excluded) seems too expensive in many states. At the same time, many of those who complain about the public schools seem to care less that their children (or those they represent) are relatively worse off and more that they are badly off in an absolute sense. These factors have combined to cause legal activists to change tactics, which have been supported by some courts. Although courts in many states have by now rejected the traditional "equity" claims, other more ambitious cases demanding "adequacy" are winning. In the end, however, these two different legal approaches—equity and adequacy—are not so far apart as some commentators have suggested (Clune, 1993; Underwood, 1995). For example, although "adequacy" candidly concerns itself with educational outcomes, its advocates are not insisting that students have a legally enforceable "right" to any particular outcome. Rather, they appear to argue that each school district must have adequate resources, given its circumstances and the nature of its pupils, to be able to offer an educational program that reasonably promises to teach at least most of them to reasonably high standards. This principle is more ambitious as a legal standard than fiscal neutrality because it focuses on more than dollar inputs. At the same time, it contains many "soft" words that courts cannot define with clarity. Nevertheless, it carries a meaning that some courts do seem comfortable with in two critical respects. First, these courts believe that they can readily tell that, at least in some states, the adequacy principle is clearly not being met; and second, they feel that they will be able to determine whether the systemic revisions developed by the legislature constitute genuine responses to the adequacy standard. Still, even as the courts embracing the adequacy idea envision legislative responses that will include more than mere financial changes, these courts seem
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best able to deal with the money side. As noted above, although the New Jersey Supreme Court, has moved down the "adequacy" path, its most recent ruling is that if the wealthy communities need so many dollars per pupil to educate their children, then the poverty-ridden central cities surely need that much and more. Adequacy, in short, is anchored in some notion of spending equity. Indeed, New Jersey is of special interest because it is traditionally among the highest spending states in the country, perhaps the highest. Even low-spending New Jersey districts currently have available to them more money per pupil than the national average. Hence, one might well have assumed that New Jersey's spending level everywhere was at least "adequate"—unless school funding arrangements are to be deemed woefully inadequate throughout virtually the entire United States (which, some would argue, is true). But since New Jersey continues to have substantial spending inequalities, the court was able to order reform on behalf of the neediest districts by casting adequacy in relative equity terms. Although the group of successful adequacy cases employs language that generally emphasizes educational reform beyond finance, it would be a mistake to imagine that system-wide reforms are taking place only in these states. After all, since the early 1980s the country as a whole has given much greater attention to educational productivity. So, too, throughout the country today, legislatures are involved with two new powerful reform movements—(1) educational standards and (2) school choice—that also make claims about how to connect the spending of money with better educational outcomes. Finally, and perhaps most importantly, in the end both the equity and adequacy theories depend upon the courts primarily to perform the role of striking down the traditional approaches to school finance. That is, both theories look to the legislature to provide equal educational opportunity to all of the children of the state. How the legislature does that is ultimately up to the legislature and not the court, even if the court provides the negative prod of insisting that one response or another is insufficient. We can speculate whether the courts in states like Kentucky and Wyoming will at some point involve themselves intimately in the details of their state's educational reforms. (In Kentucky, which many cite as the strongest "adequacy" case, the reform effort has been sent back to the legislature to handle without maintaining judicial supervision over the response.) Therefore, by their demands that their state provide enhanced financial backing for school districts that are unfairly disadvantaged, it is safer for the present to see those judges adopting adequacy theories as still acting in the school equity tradition. In these newer cases the courts seem to be bolder in describing what constitutes an unfair disadvantage, and this unwillingness gives adequacy and equity different legal meanings. A different way to put the point is that the adequacy banner is a successful reemergence of the early, then unsuccessful, educational "needs" theories of the legal aid lawyers. This suggests that the relative caution exhibited by the Coons team and other early legal theorists may have been unwarranted.
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Or perhaps courts needed to gain experience from and comfort with the narrower equity theories before embracing a broader theory. Whether this recent greater boldness by lawyers and judges will have significantly different consequences for children is another matter, however. That determination will require careful observation of the way school reform and school finance reform unfold in the years ahead. In any event, what does seem clear is that litigation aimed at achieving school finance reform has not yet run its course. We should look for the filing of more "adequacy" cases. We should anticipate that some states with "adequacy" decisions against them will be hauled back into court on the ground that they have not done enough. And, we should expect that some lawyers will continue to bring some traditional "equity" cases, as exemplified by the recent Vermont case. Moreover, once "adequacy" talk becomes more common, we might expect to see more intra-district school finance cases. In the past, this has not been viewed as a fruitful litigation target because of the absence of an obvious structural objection to the way districts distribute their money to schools. This is in contrast to the ready objection that has been mounted against the local property tax-based system for getting money to districts. Moreover, the schools with the most children from low-income families and the highest proportion of educationally-least-successful children often spend more dollars per pupil than the district average when state and federal categorical aid are counted. But as judicial concerns about need and outcomes come more to the fore, there are sure to be those whose objections may be couched in terms of how poor children in some schools within urban districts fare compared with other children in the district. Indeed, litigation of this sort is ongoing now in Los Angeles. In conclusion, although there may be less school finance inequity today than there was 30 years ago, a substantial degree remains.29 To the extent that states with successful school finance litigation have less inequality, and this appears broadly to be the case, reformers will have continued reason to take their battles to the courtroom. This incentive is magnified as courts show a broad willingness to respond to the widespread view that the whole public schooling enterprise is inadequate, especially in its failure to educate successfully too many of our urban poor children. Whether school finance reform alone can turn that failure around remains quite unclear. For example, no one has been able to show that the narrowed spending differentials achieved by successful school finance equity cases in the 1970s and 1980s directly led to a narrowing of educational achievement differentials. Yet advocates for judicial intervention continue to believe not only that school finance reform is required by the norm of basic fairness, but also that reform is a necessary, if not sufficient, condition for improving the educational attainment of those now served poorly by our public schools.
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Notes 1. Most state constitutions contain one or more provisions that either parallel the federal Constitution's equal protection clause or have been interpreted to afford similar protections (Williams, 1985). For typical examples, see Ill. Const., art. 1, sec. 2 (stating that "[n]o person shall … be denied the equal protection of the laws"); and Minn Const., art. 1, sec. 2 (stating that "[n]o member of this state shall be disenfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land"). 2. State constitutions' education clauses vary in their language, although all impose a duty on the state government to make provision for a "system" of education. State education clauses are collected in an appendix to Hubsch (1992). A number of them require state legislatures to provide for a "thorough and efficient system" of public schools. See, e.g., N.J. Const., art. 8, sec. 4, para. 1. Others impose a duty on the state to make "ample" provisions for a ''system" of education. See, e.g., Mass. Const., pt. 2, ch. 5, sec. 2. 3. For a thorough discussion of the equal protection jurisprudence at the time, see Serrano v. Priest, 487 P.2d 1241, 1255-59 (Cal. 1971). 4. See Baker v. Carr, 398 U.S. 186 (1962). 5. See McInnis v. Shapiro, 293 F. Supp. 327 (N.D. Il. 1968), aff'd sub nom., McInnis v. Ogilvie, 349 U.S. 322 (1969); Burrus v. Wilkerson , 310 F. Supp. 572 (W.D. Va. 1969), aff'd per curiam, 397 U.S. 44 (1970). 6. The Coons team's theory also was accepted by a federal district court in Minnesota, Van Dusartz v. Hatfield, 334 F. Supp. 870 (D. Minn. 1971), but the Rodriguez decision soon rendered that victory moot. 7. See Dandridge v. Williams, 397 U.S. 471 (1970). 8. See, e.g., U.S. v. Guest, 383 U.S. 745 (1966); Shapiro v. Thompson , 394 U.S. 618 (1969); Oregon v. Mitchell, 400 U.S. 112 (1970) (opinion of Brennan, White, and Marshall, JJ.). 9. Litigation concerning other areas of students' rights protected by statute and the U.S. Constitution, such as special education, desegregation, and bilingual education, sometimes have had significant consequences for school finance and resource allocation in many states throughout the country. For example, as a result of school desegregation litigation in the late 1980s, the state of Missouri was compelled by the court to allocate hundreds of millions of dollars to the Kansas City school district (Missouri v. Jenkins, 495 U.S. 33, 1990). 10. Underwood (1995) provides a thorough discussion of the constitutional basis for state school finance decisions. 11. See Serrano v. Priest (Serrano II), 557 P.2d 929, 951 (Cal. 1976), cert. denied, 432 U.S. 907 (1977); Pauley v. Kelly, 255 S.W.2d 859, 878 (W.Va. 1979); Washakie Co. Sch. Dist. v. Herschler, 606 P.2d 310, 340 (Wyo. 1980), cert. denied, 449 U.S. 824 (1980). 12. A number of state equal protection cases involving challenges to school
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finance systems have proceeded to overturn those systems applying the less rigorous rational basis test. See Dupree v. Alma Sch. Dist. No. 30, 651 S.W.2d 90 (Ark. 1983); Edgewood v. Kirby, 777 S.W.2d 391 (Tex. 1989); Tennessee Small Sch. Systems v. McWherter, 851 S.W.2d 139 (Tenn. 1993). 13. As the Tennessee Supreme Court observed: "The decisions of the courts in [other] jurisdictions provide little guidance in construing the reach of the education clause of the Tennessee constitution. This is true because the decisions by the courts of other states are necessarily controlled in large measure by the particular working of the constitutional provisions of those state charters regarding education and, to a lesser extent, organization and funding" (Tennessee Sm. Sch. Sys. v. McWherter, 851 S.W.2d 139, Tenn. 1993). 14. See, e.g., Rose v. The Council, 790 S.W.2d 186 (Ky. 1989); McDuffy v. Secretary of Education, 615 N.E.2d 516 (Mass. 1993). 15. Note also that the Connecticut Supreme Court embraced the Coons team's theory in a 1977 decision, Horton v. Meskill, 376 A.2d 359 (Conn. 1977). 16. See Thompson v. Engelking, 537 P.2d 635 (Idaho, 1975); Olsen v. State, 554 P.2d 139 (Oreg. 1976); Danson v. Casey, 399 A.2d 360 (Pa. 1979). 17. San Antonio Indep. Sch. Dist. v. Rodriguez, 337 F. Supp. 280 (W.D. Tex. 1971); Van Dusartz v. Hatfield, 333 F. Supp. 870 (D. Minn. 1971) 18. Thompson v. Engelking, 537 P.2d 635 (Idaho 1975); Olsen v. State , 554 P. 2d 139 (Idaho 1976); Board of Educ. v. Walter, 390 N.E.2d 813 (Ohio 1979); Danson v. Casey, 399 A.2d 360 (Pa. 1979). 19. The cutbacks included the elimination of all kindergarten classes, athletic programs, extracurricular programs, the music program, all library programs, school lunch and breakfast programs, all bussing programs except for special education, all counseling services, and approximately 536 reading teachers (Danson, 1979). 20. Washakie Co. Sch. Dist. v. Herschler, 606 P.2d 310 (Wyo. 1980); Dupree v. Alma Sch. Dist. No. 30, 651 S.W.2d 90 (Ark. 1983). 21. McDaniels v. Thomas, 285 S.E.2d 156 (Ga. 1981); Levittown v. Nyquist, 439 N.E.2d 359 (N.Y. 1982); Lujan v. Co. Bd. of Educ., 649 P.2d 1005 (Col. 1982); Hornbeck v. Somerset Co., 458 A.2d 758 (Md. 1983); East Jackson v. Michigan, 348 N.W.2d 303 (Mich. App. 1984); Fair School v. Oklahoma, 746 P.2d 1135 (Okla. 1987); Britt v. North Carolina, 357 S.E.2d 432 (N.C. 1987); Richland v. Campbell, 364 S.E.2d 470 (S.C. 1988). 22. Hornbeck v. Somerset Co. Bd. of Educ. (1983); Britt v. State of North Carolina (1987); Board of Educ. v. Nyquist (1987); Kukor v. Grover (1989). 23. For example, in Maryland the court noted that: "No evidentiary showing was made …—indeed no allegation was even advanced—that these [state] qualitative [education] standards were not being met in any school district, … or that the State's school financing scheme did not provide all school districts with the means essential to provide the basic education contemplated" by the Constitution (Hornbeck v. Somerset Co. Bd. of Educ., 1983).
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24. In that same year, Wisconsin's school finance plan was upheld (Kukor v. Grover, 1989). 25. As a result of the new legislation, revenues for all school districts increased; the poorest districts increased 25 percent and the richest increased 8 percent (Alexander, 1991). 26. Leandro v. State of North Carolina, No. 179PA96 (July 24, 1997) (relying on Kentucky's definition of adequate education); Claremont Sch. Dist. v Gregg, 635 A.2d 1375 (N.H. 1993) (state constitution required the state to create and maintain an adequate education system that "includes broad educational opportunities needed in today's society to prepare citizens for their role as participants and as potential competitors in today's marketplace of ideas"); Tennessee Small School Systems v. McWherter, 851 S.W.2d 139 (Tenn. 1993) ("The General Assembly shall maintain and support a system of free public schools that provides at least the opportunity to acquire general knowledge, develop the powers of reasoning and judgment, and generally prepare students intellectually for a mature life"); Roosevelt Elem. Sch. Dist. v. Bishop, 877 P.2d 806 (Ariz. 1994); Campaign for Fiscal Equity v. State of New York, 86 N.Y.2d 307 (N.Y. 1995) (state is constitutionally obligated to create and maintain an education system that provides children with: "the basic literacy, calculation, and verbal skills necessary to enable [them] to eventually function productively as civic participants capable of voting and serving on a jury … [and] minimally adequate physical facilities and classrooms … to permit children to learn"). 27. See Coalition for Adequacy v. Chiles, 680 So.2d 400 (Fla. 1996). ("Appellants have failed to demonstrate … an appropriate standard for determining 'adequacy' that would not present a substantial risk of judicial intrusion into the powers and responsibilities assigned to the legislature"); City of Pawtucket v. Sundlun, 662 A.2d 40 (R.I. 1995) ("what constitutes an 'equal, adequate, and meaningful' [education] is 'not likely to be divined for all time even by the scholars who now so earnestly debate the issues'"). 28. See, e.g., Sch. Admin. Dist. #1 v. Commissioner of Educ., St. of Maine, 659 A.2d 854 (Maine 1995) (plaintiffs claims focused on equity and they did not claim that they were receiving an inadequate education); Scott v. State of Virginia, 443 S.E.2d 138 (Va. 1994) (state education clause required that state system allow each school district to provide an educational program that meets standards of quality as determined by the legislature, and no district before the court claimed that they could not meet such standards); Skeen v. State of Minnesota, 505 N.W.2d 299 (Minn. 1993) (the education clause required the state to provide enough funds to ensure that each student receives an adequate education, but the plaintiff school districts before the court conceded that they were providing such an education to their students with existing resources). 29. See School Finance: State Efforts to Reduce Funding Gaps Between Poor and Wealthy Districts, U.S. General Accounting Office, February 1997.
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The GAO report presents data as of the 1991-92 school year and hence captures no reforms undertaken since then (although it does note which states have made significant changes since 1992). By our count, the following 10 states may perhaps be said to have had successful school finance litigation an appreciable time in advance of the GAO data collection date, with the date noted representing the date of the first successful high court decision: Arkansas (1983), California (1971), Connecticut (1977), Kentucky (1989), Montana (1989), New Jersey (1973), Texas (1989), Washington (1978), West Virginia (1979), and Wyoming (1985). Of course, for some of these states reform efforts made in response to court decisions may not yet have been significantly implemented by 1991-92; in others, time has eroded the earlier impact of reform; and in several, the state was taken back to court after the GAO 1991-92 cutoff date. Nonetheless, taken as a whole, these 10 states appear generally to rate more favorably on GAO's various measures of state effort to promote equity. For example, in the GAO report, Figure 1 (p. 8) illustrates the extent to which wealthy districts (as the GAO measures them) spend more than poor districts. Six of the 10 states noted above are in the bottom third (with the least amount of inequality), and only one is in the top third (most inequality). Figure 5 (p. 17) ranks the states in terms of what they have done to equalize spending. Six of the 10 states noted above are in the top third (most equalization); only three are in the bottom third (least equalization). Table 2 (p. 20) displays which states need to do the most to maximize their equalization efforts. Six of the 10 states noted above are not on the list, and none of the 10 is in the worst category (those needing both to shift considerable funds from rich to poor and to increase funding to the poor significantly). Because of the age of the GAO data and the particular ways in which it chooses to measure equity, one should be very careful not to make too much of these findings. Nevertheless, we suggest these results are readily taken by reformers to indicate that litigation can make a difference, and as a result, we should anticipate the school finance litigation effort to continue. References Alexander, K. 1991 The common school ideal and the limits of legislative authority: The Kentucky case. Harvard Journal of Legislation 28(2):341-366. Clune, W.H. 1993 The shift from equity to adequacy in school finance. The World and I 8(9):389-405. Coleman, J.S., E.Q. Campbell, C.J. Hobson, J. McPartland, A.M. Mead, F.D. Weinfeld, and R.L. York 1966 Equality of Educational Opportunity. Washington, DC: U.S. Department of Health, Education and Welfare.
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Coons, J.E., W.H. Clune, and S.D. Sugarman 1969 Educational opportunity: A workable constitutional test for state financial structures. California Law Review 57(2):305-421. 1970 Private Wealth and Public Education. Cambridge, MA: Harvard University Press . Enrich, P. 1995 Leaving equality behind: New directions in school finance reform. Vanderbilt Law Review 48:101-194. Evans, W., S. Murray, and R. Schwab 1997 Schoolhouses, courthouses, and statehouses after Serrano. Journal of Policy Analysis and Management 16(1):10-31. Franklin, D. 1987 The Constitutionality of the K-12 Funding System in Illinois. Illinois State University, Center for the Study of School Finance. Heise, M. 1995 State constitutions, school finance litigation, and the "third wave": From equity to adequacy. Temple Law Review 68:1151-1176. Hickrod, G.A., L. McNeal, R. Lenz, P. Minorini, and L. Grady 1997 Status of School Finance Constitutional Litigation, 'The Box Score': In Illinois State University, College of Education [online]. Available: http://www.coe.ilstu.edu/boxscore.htm [April 25, 1997]. Horowitz, H. 1966 Unseparate but unequal: The emerging Fourteenth Amendment issue in public school education. UCLA Law Review 13:1147-1172. Horowitz, H., and D. Neitring 1968 Equal protection aspects of inequalities in public education and public assistance programs from place to place within a state. UCLA Law Review 15:787-816. Hubsch, A. 1992 The emerging right to education under state constitutional law. Temple Law Review 65:1325-1348. McUsic, M. 1991 The use of education clauses in school finance reform litigation. Harvard Journal on Legislation 28(2):307-341. Thro, W.E. 1993 The role of language of the state education clause in school finance litigation. West's Education Law Reporter 79:19-31. Trimble, C.S., and A.C. Forsaith 1995 Achieving equity and excellence in Kentucky education. University of Michigan Journal of Law Reform 28(3):599-653. Underwood, J.K. 1995 School finance adequacy as vertical equity. University of Michigan Journal of Law Reform 28(3):493-519. U.S. General Accounting Office 1997 School Finance: State Efforts to Reduce Funding Gaps Between Poor and Wealthy Districts. GAO/HEHS-97-31. Washington, DC: U.S. General Accounting Office. Verstegen, D. 1995 School Finance Reform Litigation: Emerging Theories of Adequacy and Equity. Unpublished paper presented at the American Public Policy and Management Association Annual Conference, November 3, 1995.
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Wise, A. 1968 Rich Schools, Poor Schools: The Promise of Equal Educational Opportunity. Chicago: University of Chicago Press. Williams, R.F. 1985 Equality guarantees in state constitutions. Texas Law Review 63:1195-1224.
Representative terms from entire chapter: