In Texas, 53 percent of newly hired teachers are not certified. Many high schools in California’s low-income and minority communities do not offer the curriculum students must take just to apply to the state’s public universities. A high school laboratory science course is required to graduate in New York, but thirty-one New York City high schools have no science lab. The vast majority of low-income students, English language learners, minorities, and students with disabilities in Kansas are enrolled in the school districts that receive the least per-pupil funding from the state. In South Carolina, annual teacher turnover rates exceed 20 percent and graduation rates fall between 33 and 57 percent in eight poor, rural, mostly minority school districts.
Inadequate and inequitable school funding underlies these shocking shortfalls in educational resources and the limited opportunity and underachievement they cause. It is not surprising, therefore, that more than twenty states are currently defending themselves in lawsuits that claim state education finance systems are unconstitutional. Moreover, the plaintiffs have won most of the recent decisions, including state high court rulings, in Kansas, Montana, North Carolina, Arkansas, and New York.
These cases are the progeny of Brown v. Board of Education. When planning the Brown legal strategy, the plaintiffs hoped that desegregation would quickly lead to equal educational opportunity. Brown led to significant progress, and the black/white achievement gap decreased by half in the 1970s and 1980s. But equal opportunity remains an unrealized goal. While desegregation held center stage immediately after Brown, certain civil rights attorneys observed that most minority children attended schools in poor urban or rural communities that were unable to generate sufficient funds to support a quality education.
State funding statutes favoring affluent communities, with high property values, limited educational opportunities for many minority students. In the late 1960s, plaintiffs began filing legal challenges to state school funding systems. Their goal was, and still is, full realization of the equal opportunity promise of Brown.
Texas plaintiffs filed the first of the modern school funding cases in federal court, claiming that the state’s funding system violated the equal protection clause of the U.S. Consti-tution. However, the U.S. Supreme Court held in Rodriguez v. San An-tonio, 411 U.S. 1 (1973), that education is not a fundamental right, noting that the Constitution does not mention education. In his dissent, Justice Thurgood Marshall encouraged plaintiffs to go to state courts under their state constitutions. The Texas plaintiffs did, and they won.
In the 1970s and 1980s, school funding cases based on state equal protection clauses were common, but the defendant states won about two-thirds of those cases. Since 1989, however, plaintiffs have won a large majority of the decisions. Many of these victories resulted, in part, from a shift in legal strategy away from equity claims to ones emphasizing the right to “adequate” education. This shift also led courts in several states to distinguish earlier equal protection cases in which the defendants had prevailed. The adequacy cases challenge state funding statutes under state constitutional education provisions.
State Constitutions and Learning Standards
All fifty states have education articles in their constitutions. Some of them were adopted in the late eighteenth century, when our nation was founded. They call for legislatures and governors to cherish learning and were based on the deeply held belief that knowledge and civic virtue were essential to the preservation of freedom and individual rights.
Many states added education articles to their constitutions in the late nineteenth century as a result of the Common School movement, which sought equal educational opportunity for the children of new immigrants and workers in a mixed industrial and agricultural age. The description by the delegates at the Kentucky constitutional convention in 1891 epitomized these egalitarian ideals. Their intent was to ensure that “the boys of the humble mountain home stand equally high with those from the mansions of the city. There are no distinctions in the common schools, but all stand upon one level.”
The movement engendered an intense political struggle. Opponents believed that education gave rise to “futile aspirations” on the part of “those born to inferior positions” and that class distinctions made for social cohesion. N. Edwards & H.E. Rickey, The School in the American Social Order (1963). Nonetheless, the movement prevailed and led to new education articles and endorsements for public education. One such statement, from New York’s constitutional convention of 1894, affirmed the crucial role of public education: “Whatever may have been the schools’ value heretofore . . . their importance for the future cannot be overestimated. The public problems confronting the rising generation will demand accurate knowledge and the highest development of reasoning power more than ever before.” This rings equally true today. More important, the education articles provide the grounds for legal advocacy on behalf of low-income and minority schoolchildren to secure the opportunity to get the knowledge and reasoning power they need.
While school funding adequacy cases find solid footing in the state education articles, recent developments in education reform strengthen the plaintiffs’ ability to build evidence of constitutional violations. During the last fifteen years, virtually all states have developed student learning, or “academic content,” standards to improve schools in the face of global competition. Although some states have done a better job than others, broadly speaking, the standards are constructed to reflect what students should know and know how to do to be capable citizens and workers in this century.
The standards articulate modern, substantive, and detailed goals of educational attainment that courts can apply to clauses that require a “thorough and efficient system of common schools,” or a “suitable education.” When litigation asks a state court to interpret an education article and assess whether the state is fulfilling its duty under that provision, the court can use the student learning standards as benchmarks for critical portions of the analysis. Moreover, the federal No Child Left Behind Act (NCLB) adds more weight to the importance of state standards because it sets high performance goals that must be aligned with each state’s learning standards.
Typically, states try to align curricula, student assessments, and teacher preparation with the student learning standards and use test scores and other measures, such as graduation rates, to report whether students are reaching those standards. Unfortunately, few states have also tried to align their funding systems with the standards. This means that the adequacy plaintiffs mentioned above can use the standards when they present evidence of insufficient educational “inputs” and “outcomes.” For example, overcrowded or dilapidated facilities may prevent students from having access to the science labs and equipment they need to meet that state’s learning standards. Uncertified teachers in classrooms, missing curricula, and the absence of basic services necessary to reach the standards are evidence of inadequacies for which plaintiffs also establish a causal link to the state funding system.
Plaintiffs also present evidence of inadequate outcomes for students. Outcome measures include below-grade-level test scores, low graduation rates, and high remediation rates among students who graduate and go to college. Compared to state standards, as reflected in the state’s own assessments, students are clearly not receiving a “suitable” or a “sound basic” education for this century.
Plaintiffs have filed school funding cases in forty-five of the fifty states. Some states have witnessed multiple cases. In Texas, for example, plaintiffs won years ago, but a recent follow-up case claimed that the funding system passed into law to remedy the earlier litigation had become unconstitutional. The Texas Supreme Court agreed in November 2005.
When Plaintiffs Win
When the plaintiffs win such cases, the spotlight shifts to the remedy. What comprises a constitutionally sound and compliant school funding system? The adequacy cases and the learning standards of each state have, in a sense, turned funding questions on their heads.
In the typical approach to education funding, the legislature and governor first determine how much money is available, without a thorough analysis of educational needs. Then they argue over and compromise on the distribution of that money among the state’s school districts. This often leads to an “inequitable equilibrium,” in which the allocation of state resources represents the balance of political power, usually heavily weighted in favor of suburban school districts.
However, if the starting point is the state’s student learning standards, an entirely new set of questions emerges. To align the funding system with the standards, legislators must ask:
• What capacities—that is, what resources, conditions, programs, and services—do schools need to enable their students to meet the learning standards?
• How much funding is required to build and maintain the required capacities?
• What kind of state education finance system would best deliver the funding and capacity to all schools?
To answer the capacity questions, states have identified “education essentials.” They have increasingly turned to cost studies to obtain information on the funding needed to support these essentials.
Teaching quality heads everyone’s list of essentials. Well-prepared teachers, mentoring for new teachers, and decent teaching conditions are crucial to student learning. For low-income and minority students especially, research shows quality teaching has an enormous positive influence. Other resources widely acknowledged as essential include adequate facilities, small class size in the early grades, effective programs for English language learners and students with disabilities, and qualified principals. Laboratories, textbooks, and supplies are obvious needs.
A more recent essential, but one that seems to be gaining ground rapidly, is high-quality preschools. Evidence of their effectiveness—improving student achievement, reducing delinquency and teen pregnancy, increasing earnings and home ownership—is nothing short of phenomenal. The economic payback to society highly recommends increased spending on high-quality preschools.
Identifying essentials often occurs as part of an education cost study. Since 1991, over forty studies have been conducted in over thirty states. Usually, the states initiate these studies, but education advocacy organizations have commissioned several. Five states have conducted studies as part of their remedial orders in school funding cases. The NCLB has added another reason for education cost studies. Its unprecedented goal of 100 percent of students reaching state standards would require an unknown level of additional funding and possibly other dramatic changes.
Whatever the study results, attaining full implementation from the legislature can be difficult. Some legislatures have arbitrarily reduced cost figures and managed to perpetuate inequities. School districts also must carefully use any increased funding on the most effective strategies for im-proving student achievement.
Vision from the Courts
Recently, courts in New York, Texas, North Carolina, and Kansas have articulated visions for their state’s future that depend on funding for quality public schools. According to these courts, we are at a fork in the road. If we adequately fund for quality education, especially considering minority, immigrant, and economic status, we will preserve freedom and democracy and foster prosperity. If we do not, we will cause a decline in America ’s potential for social, civic, and economic success.
In New York, the trial court held that the constitution requires the state to provide the opportunity for all children to learn the “foundational skills that students need to become productive citizens capable of civic engagement and sustaining competitive employment.” Campaign for Fiscal Equity v. New York, 719 N.Y.S.2d 475, 487 (Sup. Ct. N.Y. Cty. Jan. 10, 2001). The court defined “civic engagement” to include acting as a knowledgeable voter with the “intellectual tools to evaluate complex issues, such as campaign finance reform, tax policy, and global warming,” and serving as a capable juror with the skills to “determine questions of fact concerning DNA evidence, statistical analyses, and convoluted financial fraud.” Id. at 485. Competitive employment does not mean “low level service jobs,” the court said. Rather, it requires higher level skills and knowledge.
The Texas trial court observed that accountability standards there have risen through the implementation of more stringent tests and the dramatic increase of federal mandates in the NCLB. Texas’s population is growing, which additionally burdens the schools. This is especially true given the demographics of the changing population, which is heavily minority, low income, and non–English speaking. West Orange-Cove v. Nelson, No. GV-100528 (Dist. Ct. Travis Cty. Nov. 30, 2004).
The North Carolina Supreme Court found that students in poor rural districts were failing at alarming rates and that it was necessary to “hold the State accountable” for the many programs and services not being provided to these students. Hoke County Board of Education v. North Carolina, 599 S.E.2d 365, 389 (N.C. 2004).It declared: “The children of North Carolina are our state’s most valuable renewable resource,” emphasizing the duty of the state’s courts to act to prevent further harm to students. Id. at 377. It called for immediate compliance with constitutional requirements, holding that “[w]e cannot . . . imperil even one more class unnecessarily.” Id.
The Kansas Supreme Court, in Montoy v. State, 112 P.3d 923, 940 ( Kan. 2005), cited the North Carolina decision approvingly and further stated that“we cannot continue to ask current Kansas students to be patient. The time for their education is now.”