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Rebell and Hanushek Clash on Role of the Courts

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Published: 3/26/2007


Debating before a packed plenary session at the annual American Education Finance Association Conference in Baltimore last Saturday, Michael A. Rebell and Erik Hanushek presented radically different assessments of the courts' ability to contribute to essential educational reform. Rebell, the Executive Director of the Campaign for Educational Equity at Teachers College, Columbia University, and lead counsel in Campaign for Fiscal Equity v. State of New York, began by discussing the significant impact that the state courts have had in promoting equity in school finance and adding substance and rationality to the state standards-based reform movements. "If the state courts in 45 of the 50 states had not moved equity to the head of the legislative agenda, and mandates from dozens of these courts had not required adequate spending to meet the needs of low-income and minority students, the progress that has been made to date in many states and, indeed, the country's national commitment to ensuring that all children learn at high levels, simply would not have occurred," Rebell asserted.
Hanushek, a Senior Fellow at the Hoover Institute, Stanford University, and a witness for the state defendants in New York and 11 other cases, said the increased spending ordered by the courts has largely been wasted. He then discussed at length the recent extensive California study, "Getting Down to Facts," which he claimed demonstrated that there would be no point in pumping additional funds into that state's education finance system unless impediments posed by a dysfunctional categorical funding system and by collective bargaining agreements were first eliminated.  Rebell cited a number of states (Massachusetts, Vermont, Wyoming) in which increased funding resulting from court orders had led to demonstrable improvements in student achievement, and Hanushek's own acknowledgement in his recent book, Courting Failure, that the lawsuits tended to bring about more equalized funding.
Hanushek accused Rebell of lacking faith in the democratic process by asking courts and not legislatures to solve these problems. He also said that it is inappropriate for courts to be making specific appropriations for education expenditures. Rebell pointed out that the courts do not make appropriations, nor do they -'usurp" legislative powers when they fulfill their own responsibilities to uphold the right to education guaranteed in their state constitutions. Referring to recent events in the CFE case, he said that orders requiring legislatures to provide specific minimal levels of funding resulted from repeated refusals by the former Governor to comply with previous judicial mandates which asked him and the legislature to undertake cost studies and make their own funding determinations.  "The Courts have a major role to play in articulating the constitutional rights and principles at issue and in ensuring that the legislative and executive branches follow through and do their jobs -- but they are the ones that must legislate and implement specific solutions," he said.
Rebell concluded by focusing on the recent California study to which Hanushek had alluded. He predicted that none of the reforms that Hanushek and other authors of the study were seeking would, in fact, be adopted by the legislature without judicial involvement, but he agreed that if litigation is brought in California, the court should give careful attention not only to the amount of additional funding that is needed, but also to ensuring that funding reforms and meaningful accountability strictures are adopted and implemented by the legislative and executive branches.