During the 2009–10 school year, 20,000 teachers in California were laid off; Hawaiian students had Friday classes cancelled for 17 weeks in a row; bilingual services in Illinois were cut 25 percent; and New York City reduced funding for after-school programs by 50 percent. These kinds of unplanned, across-the-board emergency cuts in educational services undeniably undermine learning and permanently damage the life chances of vulnerable students, especially those from poor and minority communities. Children who miss an opportunity to learn to read during the critical early school years often fall forever behind, and those children who as teenagers drop out of high school rarely return to complete their educations.Cutbacks in critical educational services are accelerating this year and are likely to do so for the foreseeable future. Most states project mounting deficits that will keep state budgets under severe stress for years to come. The National Conference on State Legislatures sees a “foreboding future”, extending at a minimum through FY 2012 or 2013 and perhaps far longer. They estimate the states’ collective budget gap for FY 2011 at $89 billion and project gaps almost as large for the following two years. The American Recovery and Reinvestment Act of 2009, which gave priority to the educational sector in distributing Federal stimulus funds, has mitigated the impact of the states’ funding crisis on educational services for the past two years. However, the stimulus money is almost gone, and the limited allotments in the jobs bill approved by Congress in August 2010 barely stem the tide of mounting state deficits and their deleterious effects on educational opportunity. The current school funding crisis comes at a time when the stakes for our nation are extremely high. Within the next decade, more than half of the student population of America’s public schools—and that means more than half of the future workforce—will consist of racial minority groups that traditionally have not fared well in education. Demographic projections indicate that, in the absence of massive improvements in educational outcomes for these groups, the overall educational attainment of our labor force will decline even as that of most of our international competitors will continue to rise. In the past, the United States had the world’s highest rates of high school graduation and college attendance and completion, but the Organisation for Economic Cooperation and Development now estimates that at least 17 nations exceed our attainment, with other countries poised to pass us soon. Today, we rank about average or below average in educational achievement compared not only with other industrialized countries, but even with less developed ones as well. Legal Implications of the School Funding Crisis
Many state governments have adopted the strategy of abrupt, across-the-board cuts in education to shore up their budgets. This is not only destructive to students’ educational opportunities and the nation’s economic future; it is also unconstitutional. Courts in more than two dozen states have in recent years recognized that children have a right under their state constitutions to a “thorough and efficient education”, a “sound basic education” or some similar definition of a basic, quality education. The courts that have examined this issue have consistently held that these constitutional requirements entitle children to meaningful educational services that will prepare them to compete in the global marketplace and to function as capable citizens in a democratic society.These state court determinations have strongly reinforced the national policy on educational opportunity expressed in the No Child Left Behind Act (NCLB), enacted early in 2001 with strong bipartisan support. The stated purpose of NCLB is to ensure that “all children have a fair, equal and significant opportunity to obtain a high quality education.” NCLB pledged promptly to overcome racial, ethnic and class-based achievement gaps by mandating that all children in the United States achieve proficiency in meeting challenging state standards by 2014. Full proficiency by 2014 was never a realistic goal, and some of NCLB’s mechanisms have been subject to withering criticism from educators and from all ends of the political spectrum. Nonetheless, adoption of this target date as a mandate, not merely as an aspirational goal, demonstrated the seriousness of Congress’s commitment to “fair, equal and significant opportunity.” Congress also increased Federal funding for disadvantaged children under NCLB by almost 50 percent during the first years after its passage. The Obama Administration has asked Congress to maintain pre-stimulus Federal funding levels for education and to fund its Race to the Top and other new competitive grant programs, despite the continuing economic slump. It remains to be seen if Congress will do so, but the Federal portion has never been the mainstay of educational funding. Historically, state and local funding have provided more than 90 percent of the financial resources for education, and that pattern is likely to resume in the post-stimulus economy. NCLB is nevertheless extremely important for another frequently overlooked reason. It strongly reinforces preexisting, parallel commitments in virtually all of the states to adopt high standards for students, and to reform their educational systems in order to overcome historic achievement gaps. This standards approach in turn transformed the power of state courts to formulate workable solutions to gross educational inequities. Indeed, over the past few decades the funding increases that have fueled the extensive reforms called for by NCLB have stemmed in most states from the active involvement of the state courts. In numerous cases across the country, state courts have required governors and legislatures to supply the funding necessary to provide low-income and minority students with meaningful opportunities to meet state proficiency standards. This opportunity-equalizing funding is, however, now in jeopardy. The nation’s commitment to equal educational opportunity originated with Brown v. Board of Education, the Supreme Court’s landmark 1954 decision that outlawed racial segregation in schools. Although the Federal courts vigorously pursued school desegregation in the 1960s and early 1970s, they have since substantially retreated from active enforcement, as evidenced by the Supreme Court’s 2007 decision in Parents Involved v. Seattle School District, which drastically constrained the ability of school boards to implement even voluntary desegregation plans. With more than 70 percent of black and Latino students now attending predominantly minority schools, the active arena for promoting equal educational opportunity has now become the state courts and their efforts to promote fair funding for schools in low-income and minority school areas. Since 1973, cases challenging the constitutionality of inequitable education finance systems have been filed in 45 states. Many of these suits resulted from a growing awareness among civil rights lawyers that substantial resources would be needed to overcome the accumulated vestiges of school segregation, and that most minority students still attended school in poor urban or rural school districts that were grossly under-funded compared with schools in affluent, largely white suburban districts. The root cause of this inequity was that state education finance systems historically have been based largely on local property taxes, a pattern that inherently disadvantages students who attend school in districts with low property values. Parents of students in one such Texas school district brought a legal challenge, Rodriguez v. San Antonio Independent School District, which reached the U.S. Supreme Court in 1973. The Rodriguez plaintiffs lived in Edgewood, a district in the San Antonio metropolitan area whose students were approximately 90 percent Mexican American and 6 percent African American. The district’s property values were so low that even though its residents taxed themselves at a substantially higher rate than did the residents of the neighboring largely white district, they were only able to spend half as much per student as their more affluent neighbors. The Supreme Court agreed that Texas’s school finance system was inequitable, but it denied the plaintiffs’ claim primarily because it held that education is not a “fundamental interest” under the Federal constitution. The Federal courts generally uphold governmental actions that do not involve “fundamental interests” if the authorities can produce a “rational” explanation for their actions. In this case the Supreme Court said that the tradition of local control of education was sufficient justification for the continuation of state education finance systems, even if they resulted in gross inequities. The Supreme Court’s ruling in Rodriguez precluded the redress of fiscal inequity in the Federal courts. Surprisingly, the state courts, which historically had not been innovators in constitutional civil rights issues, picked up the baton. As indicated above, cases have been filed in virtually every state in the union, and in some jurisdictions there have been multiple filings. Plaintiffs have prevailed in about 60 percent of the final constitutional decisions in these cases. The evidence in these cases has exposed the flagrant lack of equal educational opportunity that the school systems in most of the states continue to impose on millions of poor and minority students—more than fifty years after the Supreme Court’s decision in Brown. Take just a few illustrative examples: One poor rural Arkansas school district had a single uncertified mathematics teacher to cover all high school mathematics courses; 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; passing an examination in a laboratory science course is required for high school graduation in New York State, but 31 New York City high schools had no science labs. It is not surprising that the judges who have heard such evidence have consistently ruled in the plaintiffs’ favor. Indeed, it is revelatory that virtually all of the cases plaintiffs have lost in the past two decades have been instances where the courts declined to take jurisdiction for procedural or abstract separation-of-powers reasons. Almost no cases were lost on the merits of an argument about equal opportunity or fairness. Although plaintiffs have continued to prevail in some cases, progress has slowed since the onset of the recession. It is not clear whether the courts will continue to enforce students’ rights to obtain a decent education and to insist that the states provide enough funding to overcome achievement gaps. It is an axiom of constitutional law that financial considerations should not affect constitutional rights. In practice, however, many judges, faced with continuing revenue shortfalls and state budget deficits, seek to avoid issuing rulings that would cause confrontations with the legislature’s appropriation authority. These judges pass the buck either by declining jurisdiction or by issuing declaratory judgments that do not provide for vigorous enforcement. Effective learning must respect children’s developmental needs and sound curriculum pacing, not the rhythms of boom-and-bust budget cycles. Efforts to ensure meaningful educational opportunity should not be deferred because tax revenues are lagging. Of course, these are fine and necessary principles, but is there a practical way to safeguard children’s right to a sound education while acknowledging the realities of a severe plunge in state revenues? There is. State courts need to compel state governments to identify and protect core constitutional services, determine how these services can be provided most efficiently and at what cost, and then ensure that the necessary funds are provided to all schools, concentrating funding reductions in less essential areas of the state budget. In other words, rather than slash education budgets across the board to meet abstract budget targets, governors and legislatures must focus on how these cuts will actually affect children, and how to protect essential, constitutionally guaranteed services from their impact. Before detailing these approaches, however, we need to know a bit more about the history and significance of the state courts’ past involvement in promoting equal educational opportunity. When the Supreme Court ruled against the plaintiffs by a close 5–4 vote in the 1973 Rodriguez case, the civil rights community sought relief in the state courts. Historically, these courts tended to be highly conservative on social policy issues, and many also thought that they lacked the institutional capacity to take on and see through complex institutional reform litigation. But with the Federal route blocked, there was little alternative. This route, however, turned out to be more fruitful than anticipated. Although plaintiffs obtained mixed results in the first round of cases, the past two decades illustrate a much better record. The state courts’ surprising willingness to develop and enforce constitutional rights in this area, as well as their enhanced capacity to actually do so, can be explained by two factors. One is that the great success of these litigations coincided with the beginning of the standards-based reform movement. This movement responded to a series of major commission reports in the 1980s that had warned of a “rising tide of mediocrity” in American education—a phenomenon that was said to be undermining the nation’s ability to compete in the global economy.1 Comparative international assessments also revealed poor performance by American students, especially in science and mathematics. In 1989, President George H.W. Bush convened a National Education Summit that was attended by all fifty state governors, business leaders and educators. The result was a major effort by the Federal government to articulate specific national academic goals, and a commitment by the states to adopt challenging academic content standards that set high benchmarks for student learning. Once the content standards were established, every other aspect of the education system was to be reformed to conform with them, including teacher training, teacher certification, curriculum frameworks, textbooks and other instructional materials, and student assessments. These academic content standards, and the extensive testing regime based on them, became the building blocks of NCLB. The critical tie-in with the court cases was that they also provided courts with “judicially manageable standards” to devise remedies for reforming state education finance systems. Previously, plaintiffs had lost most equity funding litigations mainly because the courts didn’t know how to rectify the inequities of traditional property-tax based systems, even when they acknowledged them. Municipal finance is an arcane field involving complex systems of property assessments, mill rates and intricate state subsidy systems. Rectifying inequities in educational finance seems to most non-experts to be a simple task for a court: Order the state to ensure that the amount spent for every child be the same, regardless of where he or she happens to live. It has turned out not to be so simple. To take one example, the California Supreme Court in the late 1970s tried the straightforward approach, ordering that per student funding vary by no more than $100 among all the school districts throughout the state. Since then, California has achieved greater equity—but by leveling down, not by leveling up. California ranked fifth in the country in per capita education funding in the 1970s, but last year it was 49th. In addition, over time its affluent districts regained funding advantages through supplementary private funding and by persuading the legislature to establish funding categories in areas not covered by the court orders. The new state standards approach has dramatically improved the situation, essentially by providing a workable remedy in place of abstract approaches that simply did not work. It provides judges clear and workable criteria for crafting practical fixes in these litigations. Since the states had defined the expected outcomes for their education systems, all the courts needed to do was to determine whether all students, and especially those in property-poor districts, were receiving sufficient resources to give them a fair opportunity to achieve those outcomes. The courts didn’t need to examine the methods used to ensure an adequate level of funding, nor engage in hair-splitting analyses of property-tax systems and comparative funding analyses. The standards approach had additional legal and political appeal, as well. Judicial emphasis on funding to meet state standards did not threaten the concept of local control of education, the main rationale for most prior equity rulings in favor of the defendants. The education-clause cases did not undermine the prerogative of local communities to set their own tax rates because local school districts would remain free to augment their programs above the basic adequacy levels (though these levels now tended to be relatively high). And to the extent that an emphasis on statewide standards was inconsistent with local control, those centralizing tendencies already existed within the regulatory framework of the standards-based reform movement. All of this tended to reduce the political profile of the issue. The new constitutional approach also tends to evoke less political resistance at the remedial stage because, rather than stoke fears of “leveling down” educational opportunities for affluent students, it promises a “leveling up” of academic expectations for all students. Although standards-based reforms would most dramatically improve the performance of the lowest achieving students, they are comprehensive enough to benefit all students. The second reason for the turnaround in the outcome of the education funding cases since 1989 is that savvy civil rights attorneys, realizing that the predominant strategy was not succeeding, developed a new constitutional theory that took further advantage of the relevance of the state standards movement to litigation. They changed their focus from equal protection claims based on disparities in the level of educational funding among school districts to claims based on language in state constitutions that guaranteed students some basic level of educational opportunity. Specific provisions in almost all of the state constitutions require the state to provide students an “adequate” education, a “sound basic education,” a “thorough and efficient” education, or a “basic system of free quality public elementary and secondary schools.”2 Most of these provisions were incorporated into the state constitutions as part of the “common school” movement of the mid-19th century, which created statewide systems for public education and attempted to bring together under one roof students from all classes and ethnic backgrounds. Some of them, especially in New England, date back to 18th-century revolutionary ideals of creating a new republican citizenry. Although state constitutions use different language to denote this concept of a substantive basic education, there is broad consensus among the courts that have applied it as to its contemporary core meaning. Virtually all of the courts that have explicated their state constitutions’ language have agreed that a basic education is one that equips a student to function capably as a citizen and to compete effectively in the global labor market. For example, in the 1997 decision in Brigham v. State, the Vermont Supreme Court declared that the purpose of the state’s “right to education” clause is to keep “a democracy competitive and thriving” and to prepare students “to live in today’s global marketplace.” The combination of courts taking these state constitutional provisions seriously and the state legislatures’ and education departments’ standards approach has resulted in a remarkable turnaround in plaintiffs’ success rate: Whereas in the prior decade, plaintiffs lost most equity cases, since 1989 they have prevailed in 22 of 33 cases. The changes are clearly bringing results, too. In Kentucky, the court’s intervention has led to dramatic reductions in spending disparities among school districts, the redesign and reform of the entire education system and a significant increase in that state’s student achievement scores. In Massachusetts, enactment of the Education Reform Act of 1993 likewise sharply reduced the funding gaps between rich and poor school districts, and the percentage of students achieving proficiency on state tests has risen dramatically. Statewide student achievement scores are also way up in New Jersey, where, for example, mean scale scores on the fourth grade mathematics assessment shot up by 26 points from 1999 to 2007, with the greatest increases in the poor urban districts that had been the subject of litigation. This has resulted in a decline from 35 to 22 points in the achievement gap between these districts and the high-wealth districts in the state. Although critics of NCLB often point to the ease with which states can lower their standards to improve the results they report to the Federal government, Kentucky, Massachusetts and New Jersey are among the states that have maintained consistently high standards over the past two decades. Safeguarding the Right to
Education in Hard Times
The “great recession” has undermined the foundations of state budgets just as the educational benefits promised to low-income students in many states were about to be delivered. In 2009, the third year of a scheduled four-year implementation of $7 billion in promised statewide educational funding increases, the New York State legislature froze funding. In 2010, it cut funding by more than $1 billion. The Kansas legislature has reduced education funding to pre-litigation levels, and New Jersey reneged on its promise to the state Supreme Court to fully implement the new funding formula that the court had approved. Clearly, these states are dealing with monumental fiscal challenges. But fiscal prudence does not have to clash with the protection of children’s educational rights. To navigate this tricky course, however, governors and legislators may need additional judicial support and direction to establish proper procedures.Some may say that involving courts in developing public policy initiatives constitutes inappropriate “judicial activism.” But this derisive term, left over from heated clashes over Federal courts’ desegregation mandates, and kept alive by sparring politicians on occasions like Supreme Court confirmation hearings, has little relevance to what the courts actually do on a daily basis. The successful interaction of state courts, governors and legislatures in implementing and funding standards-based reform shows that effective implementation of public policy initiatives often works best when all three branches of government participate. Although judges are sometimes criticized when their interventions do not immediately fix longstanding institutional malfunctions, frustrated citizens usually appeal to them only after the Executive and Legislative Branches have failed to meet critical needs. All three branches of government are imperfect, and the resolution of deep-rooted social problems often requires the active involvement of each of them, utilizing their complementary institutional strengths. From a comparative institutional perspective, legislatures are best at making basic policy judgments, and executive agencies excel in program implementation. Courts do not do well in either of these areas. But they are adept at establishing principled constitutional parameters for policymaking, at assessing outcomes and at making sure policymakers and program administrators actually provide the services that constitutional or statutory provisions require. As discussed above, safeguarding students’ right to meaningful educational opportunity in times of economic downturn requires four basic activities: identifying the core constitutional services; determining how they can be provided most efficiently; calculating the actual cost of such essential services; and then ensuring that the necessary funds are made available to all schools. The courts have a critical role to play in this process. First, the courts in each state should establish the basic constitutional principle that education must be a top priority even in times of financial stress. Although generally it is the legislature’s prerogative to determine priorities among competing policies and interests, legislative decision-making must respect constitutional mandates, and in most state constitutions education is a preeminent state responsibility. In many states, in fact, it is the only constitutionally guaranteed social service, such that they must make adequate provision for children’s schooling before considering other societal needs. As the Vermont Supreme Court explained in its Brigham v. State decision:
The important point is . . . that education was the only governmental service considered worthy of constitutional status. The framers were not unaware of other public needs. . . . Indeed, many essential governmental services such as welfare, police and fire protection, transportation, and sanitation receive no mention whatsoever in our Constitution. Only one governmental service—public education—has ever been accorded constitutional status in Vermont.
Having established the primacy of education, state authorities must then identify the core constitutional services that need protection. Legislatures and state education departments are in the best position to identify the programs and services students need to meet state standards, but courts also have an independent constitutional responsibility to review their decisions to ensure that they are sufficient to meet the constitutional requirement that states provide students with the skills they need to become capable citizens and productive workers. These programs should then be listed for budget purposes in a separate appropriation category to better procure and protect the resources needed to support them. Having essential services set apart in this transparent manner allows policymakers, the public, the media and courts to know which services need to be safeguarded. In the past, state education finance systems have purported to establish “foundation” categories in their budgets in order to ensure that sufficient funding is made available for a basic education, but the foundation concept has been honored more in the breach than in reality. In most states, these foundation categories have included many but not all of the essential constitutional services, and the funding amounts allocated for them have reflected political deal-making rather than focused analysis of the amount of funding actually necessary to satisfy constitutional mandates. Having identified the core constitutional services, the Legislative and Executive Branches should determine how these services can be provided to students in the most cost-effective way. For example, school districts can save money by increasing class sizes. Such increases, however, can harm student learning, especially in vulnerable schools attended by low-income and minority students. Prudent increases in class size may be justifiable, however, if they are accompanied by new initiatives to improve teacher effectiveness. Money saved by such increases may defray the additional costs necessary to recruit, mentor, evaluate and retain effective teachers. Other possible strategies that should be explored include elimination of unnecessary state mandates and regulations, school district consolidation, reducing costs of staff pensions (for example, by raising the age of eligibility for retirement while also increasing annual stipends), and reducing costs of special education evaluation and service delivery. Judicial oversight may be necessary to ensure that such saving measures do not diminish the quality of the services the students receive and undermine their right to meaningful educational opportunity. Next, they must analyze the real costs of providing the essential constitutional services to the actual population of the state in order to arrive at a realistic estimate of what the state should be spending on education. In recent decades (and largely in response to court orders in the education finance litigations), legislatures, state education departments, commissions and advocacy groups in more than 35 states have commissioned cost studies to try to determine the actual amount of funding needed to provide all students meaningful educational opportunities. These “adequacy studies”, however imperfect they may be, constitute a vast improvement over traditional ad hoc political deal-making methods. These techniques need to be refined to meet the challenge of identifying not only current costs, but also potential costs when fair savings measures are taken. Although conducting these studies and choosing their methodologies are legislative and executive responsibilities, the courts may need to monitor these activities, especially in times of severe fiscal constraint, to ensure that these cost analyses are performed in a fair and objective manner. Finally, the amount of funding necessary to meet these needs must be acknowledged as inviolable in the state’s budget. Policymakers and the public should be put on notice that funding core constitutional services is mandatory (though appropriations may be reduced for other educational services and for other budget categories). And if legislators can’t find cost savings in other areas, they must look to tax increases or other revenue-raising measures. They must also implement fair distribution formulas so that all school districts actually receive the funding they need. Over the past two decades, state supreme courts throughout the country have found that inadequate and inequitable state education finance systems have undermined the national effort to provide all students meaningful educational opportunities, eliminate achievement gaps and improve attainment levels. No education professional argues that money alone accounts for all differences in educational achievement among different groups. We know that students’ home environments play an important role, for instance. But that is no excuse for public authority to fail to provide the basic resources necessary for student achievement or shirk its responsibility for basic fairness in the provision of so critical a public service. Government must do well and honestly what it can do—and it can clearly do a great deal—to remedy inadequacies and inequities. Its efforts must not be dismantled or hobbled because of the current economic downturn. That folly would only further weaken our nation’s capacity to rebuild and compete. Rather, we must make a strong commitment to equal educational opportunity and cost-effective planning—and to continuing respect for students’ constitutional rights.
2See, respectively, Georgia constitution, article VIII, § 1; New York constitution, article XI, § 1, as interpreted by the New York Court of Appeals in Campaign for Fiscal Equity v. State (1995); New Jersey constitution, article IV, § 1; and Montana constitution, article X, § 1.