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Can School Finance Suits in State Courts Safeguard Brown v. Board of Ed? Should They?

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Published: 11/9/2021 12:40:00 PM

New research on whether money has mattered in Kentucky, New Jersey and other states

Since June 2007, when the U.S. Supreme Court struck down plans by Seattle and Louisville, Kentucky to maintain racial balance in their public schools, many have seen the nation's education adequacy movement -- the growing wave of lawsuits in state courts that are winning more money for under-funded school districts -- as "the only game in town" for protecting the interests of poor and minority students.

But are state courts competent to assess the needs of schools and students and -- as has happened in many states -- oversee major reforms? Do the courts have a constitutional basis for playing that role, or are they violating one of the nation's most sacred governmental precepts, the doctrine of separation of powers? And -- most important of all -- is school finance litigation translating into better outcomes for students?

These are among the questions that will take center stage on November 12th and 13th at a symposium at Teachers College, titled "Equal Educational Opportunity: What Now? Reassessing the Role of the Courts, the Law, and School Policies after Seattle and CFE." Co-hosted by the College's Campaign for Educational Equity and Columbia University Law School, the event will include the most detailed analyses yet of how adequacy cases have played out over multi-year periods in New Jersey, Kentucky, Massachusetts and other states; reflections and recommendations by judges who ruled in these cases; a look at the Supreme Court's role in driving education policy for disabled students; and a sweeping proposal by Michael Rebell, Executive Director for the Campaign for Educational Equity and former lead attorney in New York State's adequacy lawsuit, for how the three branches of state governments can work together more efficiently to conduct educational reform.

The event, which will be held in TC's Cowin Conference Center, features a cast of presenters and speakers that includes many central players in both the recent Supreme Court decision and state education adequacy suits, including Ted Shaw of the NAACP Legal Defense and Educational Fund; Harvard Law School's Lani Guinier, who currently is Visiting Professor at Columbia Law School; former West Virginia Governor Bob Wise, President of the Alliance for Excellent Education; Albert Rosenblatt, former judge in the New York State Court of Appeals; John Greaney of the Massachusetts Supreme Judicial Court; Lee Bollinger, President of Columbia University; Eric Hanushek of the Hoover Institution; Joyce Elliott, former chair of the Arkansas House Education Committee; Pat Todd, executive director of a professional development center within the Louisville public school system; and many others.

The findings from the retrospective analyses of school finance cases in Kentucky and New Jersey have particularly powerful implications for future state-level education reform efforts. According to Robert Sexton, who led staff work for the famed Prichard Committee that spearheaded education reform in Kentucky, and Susan Perkins Weston, executive director of the Kentucky Association of School Councils, that state:

  • increased its average per pupil spending on the state and local level by 13.9 percent in the two years directly after the state Supreme Court's ruling in Rose v. Council for a Better Education;
  • reduced funding gaps between districts with different levels of property wealth by 15 percent in the first year after the decision;
  • created a sustained system of standards, assessment, and accountability for a full curriculum of seven subjects;
  • made major investments in equipping schools to meet accountability goals, including preschool, extended school services and instructional technology.
  • made major gains in student performance. Kentucky's free and reduced lunch students outscore students from similar backgrounds nationally by seven points in fourth grade reading and five points in eighth grade reading on the 2007 National Assessment for Education Progress (NAEP) tests. In 1992 the state's average reading scale scores trailed the national average, but since 1998 Kentucky students have held a small lead on the country.

Nevertheless, Sexton and Weston call Kentucky's progress "substantial and not yet sufficient," noting that at its current pace, the state will fall far short of its commitment to deliver proficiency for all students -- and particularly poor students and those of color -- by 2014. The authors cite political tradeoffs and compromises, funding shortfalls and accountability failures.

An analysis by Margaret Goertz and Michael Weiss of the University of Pennsylvania of school finance litigation in New Jersey, which has been ongoing for more than 30 years, also finds many notable successes. The state's poorest districts now receive higher per pupil funding than its wealthiest districts. From 1999 to 2005, mean scale scores rose 19 points in fourth grade mathematics, with the greatest increases occurring in New Jersey's poorest districts (which were the focus of judicial remedies), almost halving the achievement gaps between those districts and the rest of the state.

And in Arizona, according to Molly Hunter, Director of the National Access Network (an umbrella organization based at TC for attorneys and advocates in school finance suits), the state has reviewed the status of every school building and brought each facility up to adequate levels. Arizona's litigation has focused primarily on capital improvements to schools.

In his paper "Ensuring Successful Remedies in Education Adequacy Litigations," Rebell argues that replicating and building on such successes requires a "blended separation of powers" in which the state judiciary articulates and monitors compliance with core constitutional principles; the legislature formulates specific plans and policies; and the executive implements those plans and policies in school districts. Rebell proposes a model he calls "Adequate Education Remedial Oversight" (AERO), in which state courts ascertain that school districts are using legitimate education strategies; ensure that the strategies are adequately resources; and monitor, over time, whether the strategies are producing results.

Quoting Edwin Chemerinsky, Rebell says: "The simple reality is that -'without judicial action, equal educational opportunity will never exist."
Listen to podcasts of the proceedings.