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Find more Kappan articles in the Subscribe today to access complete current issues online! Equal Opportunity and the Courts Mr. Rebell argues that, if the promise of Brown v. Board of Education is to be fulfilled, "educational adequacy" lawsuits, not cases that pursue racial integration, must be the means of doing so. IN THE spring of 2006, the state legislature in New York voted to authorize $9.2 billion for New York City to build new schools and repair old ones. In January of 2007, the state's new governor, Eliot Spitzer, proposed a $5.4-billion increase in annual operating funds for the city's schools -- to be phased in over the next four years -- and at least an additional $4 billion for school districts in the rest of the state. The first stage of this increase has now been approved by the legislature. These events represent the culmination of a 13-year-old lawsuit, in which the main plaintiff, the Campaign for Fiscal Equity (CFE) -- a coalition of parent organizations, community school boards, concerned citizens, and advocacy groups -- for which I served as co-lead counsel, successfully argued that the state's constitution guaranteed every child the right to a sound basic education. The CFE case, in turn, is emblematic of a much larger national movement, considered by many to be a kind of Act III in the story that began with Brown v. Board of Education and continued throughout the civil rights era that followed. Lawsuits challenging state methods of funding public schools have been launched in 45 of the 50 states and in recent years have been phenomenally successful. Since 1989 -- in an era largely dominated by the conservative political agenda -- plaintiffs have prevailed in 20 of the 27 final liability decisions in cases that have been based on "adequacy claims" that all schools must receive the resources necessary to provide students with the opportunity for a meaningful education that enables them to meet challenging new state standards. Education is an especially contentious field, but there is widespread agreement that this remarkable series of legal rulings has been prompted by a crisis in the nation's public schools, that the crisis disproportionately affects children from poor and minority families, and that nothing less than the functioning of America's democratic institutions and its future economic competitiveness hang in the balance. Let me cite just a few of the most alarming figures: • By the end of fourth grade, African American and Latino students -- indeed, poor students of all races -- are two years behind their wealthier, predominantly white peers in reading and math. By eighth grade, they have slipped three years behind, and by 12th grade, the gap is a full four years. • Among 18- to 24-year-olds, about 90% of whites have either completed high school or earned a GED (General Education Development) diploma. Among blacks, the rate is 81%; among Hispanics, 63%. However, a much larger proportion of blacks earn GEDs than whites: only about 50% of black students earn regular diplomas, compared with about 75% of whites. • Fewer black than white eighth-graders enroll in college in the year after they graduate from high school (44% versus 58%), and fewer still persist to earn a bachelor's degree (17% versus 35%). • By 2020, the nation's most educationally at-risk groups -- Latinos and African Americans -- will constitute a majority of the students in America's public schools. There also is little dispute among observers of all political stripes that adequacy lawsuits constitute perhaps the most significant attempt to redress this imbalance since Brown. "Adequacy lawsuits have been decided in favor of plaintiffs in states as Republican red as Kansas, Montana, and North Carolina," write Martin West and Paul Peterson, editors of a new volume titled School Money Trials: The Legal Pursuit of Educational Adequacy. In the aftermath of Brown, contemporary beliefs and values have, for many judges, endowed the education clauses of state constitutions with a new meaning that has powerful implications for what states must do.1 In June 2007, however, a new development lent even greater significance to the adequacy movement. At the end of its 2006-07 term, the U.S. Supreme Court ruled in Parents Involved v. Seattle School District that, although the equal educational opportunity mandate of Brown v. Board of Education is still the law of the land, affirmative action plans that classify students by race -- the primary means used by many districts to undo the impact of concentrated poverty -- would henceforth be prohibited. This latest decision represents the culmination of a decades-long trend within the federal courts and American society as a whole away from the pursuit of racial integration as the primary means of providing equal educational opportunity. Yet the nation's strong focus on eliminating achievement gaps, as reflected in the enactment of No Child Left Behind, coupled with the success of dozens of fiscal equity and education adequacy lawsuits, indicates that despite the lessening of ardor for taking affirmative actions to promote racial integration, our country is still committed to achieving equal educational opportunity. The New York Times, in the immediate aftermath of the Supreme Court's Parents Involved ruling, reported that "even before the Supreme Court this week limited districts' options for integrating schools, the push to improve the nation's public schools had turned, increasingly, on money."2 Put still more bluntly: given the Court's recent decision and the fact that its ideological makeup seems set for years to come, when it comes to equal educational opportunity, the adequacy movement appears to be the only game in town. The Struggle for Equal Educational Opportunity The adequacy movement is something of a misnomer, because, rather than aiming for a minimum, adequacy suits have consistently sought to promote high standards and to provide all children with a quality education. But its roots extend all the way back to the framing of the U.S. Constitution. From our country's earliest years, such advocates of public education as John Adams, Thomas Jefferson, and Benjamin Rush recognized that the rugged individualism of the new American character must be tempered by republican civic virtues. Fashioning such virtues and ensuring their perpetuation from generation to generation was to be primarily the role of the schools. The Founding Fathers stressed the need to alter America's education system radically in order to expand knowledge and "raise the lower ranks of society nearer to the higher."3 State constitutions of the 18th century codified this radical democratic view of the importance of education. For example, the Constitution of the Commonwealth of Massachusetts, part II, ch. V § 2, penned largely by Adams in 1780, proclaims:
In the 19th century, Horace Mann and other proponents of the common school movement began to implement this vision by replacing the prior patchwork of private, religious, and pauper schools with a single school system that was made available to the children of rich and poor alike. Excluded, of course, were the children of black slaves -- the consequences of which haunt the United States to the present day. But the common schools nonetheless represented a significant leap in spreading the benefits of education across class lines. The fierce political battle to implement these common school reforms culminated, in the latter half of the 19th century, in the incorporation of language into dozens of state constitutions that guaranteed the establishment of "a system of free common schools in which all the children in the state may be educated." Some states further emphasized the importance of fully educating all citizens by calling for a "thorough and efficient system of common schools throughout the state." The success of the adequacy movement has come to hinge on such language in state constitutions, with plaintiffs in nearly every state using these phrases to argue that poorly funded schools violate students' constitutional rights to a quality education. Yet the gains of the common schools movement had some unintended consequences. As public school systems expanded at the end of the 19th century through compulsory education laws and the absorption of large numbers of immigrants into urban centers, they increasingly became mechanisms for political acculturation and occupational sorting. At their worst, they were dumping grounds for the poor. Wealthier communities and families worked to create "better" schools for their children or sought alternatives outside the public system. Inevitably, the quality of schools attended by immigrants and other poor children waned. Black children were largely relegated to separate, inferior institutions in all parts of the country. Sparked by Brown, the civil rights movement of the 1950s and 1960s revived the common school ideals and for the first time sought to extend educational opportunity to all children regardless of race. Brown explicitly stated that segregation in public schools was unconstitutional and that equal educational opportunity was the law of the land. That decision was followed by Brown II, which compelled states to desegregate schools "with all deliberate speed," and, just as importantly, by the remarkable outpouring of demonstrations, marches, and other unequivocal expressions of the public will. In 1965, more than a decade after the Brown decision, Congress enacted the Elementary and Secondary Education Act (ESEA), designed to facilitate the dismantling of segregated school systems. Grounded in the principles of Brown and a centerpiece of President Johnson's "war on poverty," the law was enacted specifically to expand educational opportunities for poor children. The ensuing period, continuing into the early 1980s, stands as the high-water mark for integration in American schools. There is much evidence to suggest that it was also the moment when the "achievement gap" between white and black students was reduced to its narrowest.4 Yet, once again, the pendulum would swing the other way. The integration wave crested and began to recede amid public backlash over such efforts as forced busing and new constitutional rulings by the U.S. Supreme Court. The latter limited remedies in desegregation cases and refused to outlaw "de facto" school segregation -- the prevailing pattern in the North and the West -- caused mainly by housing and zoning decisions, which often were race-related. The advent of the Reagan revolution and the retrenchment in funding for schools and related social welfare activities also took place during this period. Not surprisingly, the achievement gap also began to widen again.5 The Adequacy Movement: The Rubber Meets the Road Yet even as the active involvement of the federal courts in promoting school desegregation began to wane, a new impetus toward inclusion and equal opportunity in education began to manifest itself from other wellsprings. In the 1980s, international comparisons revealed the poor performance of American students relative to their international peers, especially in science and mathematics, and U.S. Department of Education assessments showed that few American students had "the capacity for complex reasoning and problem solving." Concerns about America's future ability to compete in the global economy culminated in the 1989 National Education Summit, convened by the first President Bush and attended by all 50 of the nation's governors and a cadre of CEOs of major corporations. The summit resulted in a set of national goals for education and a resolution to establish explicit standards for educational achievement in each of the states. This was the formal launching of the standards-based reform movement, which promotes excellence and equity by establishing high expectations for all students and ensuring meaningful educational opportunities, in particular for poor and minority students. By the early 1990s, nearly every state had made a commitment to establish thoroughgoing statewide standards to identify what students at each grade level need to know and be able to do; to specify requirements for the proper training of teachers capable of providing instruction aligned with those standards; and to provide the curricula or curricular guidelines, as well as the books, facilities, and other resources, necessary for proper instruction in accordance with the standards. Indeed, it was the proliferation of state standards, more than any other development, that launched the current wave of adequacy lawsuits and spurred plaintiff victories. Earlier equity suits had called for the courts to simply mandate equal per-pupil funding for all school districts. However, state defendants won about two-thirds of those cases, in part because judges lacked manageable standards for determining what amount of funding was equitable or for overseeing legislative formulas. This view was most clearly manifested in 1973 in Rodriguez v. San Antonio Independent School District, in which the U.S. Supreme Court expressed a strong reluctance to jump into a maelstrom of unresolved education policy controversies and held that education is not a "fundamental interest" under the federal Constitution. However, education is a fundamental interest under most state constitutions, as Justice Thurgood Marshall suggested in his dissenting opinion in Rodriguez. And with the advent of the standards movement, plaintiffs who brought cases in state courts were able to point to a clear definition of a quality ("adequate") education with documented content, set by the states themselves, as a judicially manageable standard. They could also estimate the cost of such an education. Many of the state courts that have ruled in adequacy suits during the past two decades have arrived at a virtual consensus on what constitutes an "adequate" or "quality" education. This consensus definition includes: • The preparation of students to function productively as capable voters, jurors, and citizens of a democratic society and to be able to compete effectively in the economy. • The development of the knowledge and skills students need to be effective citizens and workers, including sufficient ability to read, write, and speak English; sufficient knowledge of fundamental mathematics and physical science to function in a complex and rapidly changing society; sufficient fundamental knowledge of geography, history, and basic economic and political systems to make informed choices with regard to issues that affect them personally or affect their communities, states, and nation; sufficient intellectual tools to evaluate complex issues; sufficient social and communication skills to work well with others and communicate ideas to a group; and sufficient academic and vocational skills to compete in further formal education or in gainful employment in contemporary society. • The provision of the essential resources students need to acquire this knowledge and these skills, including qualified teachers, principals, and other personnel; appropriate class sizes; high-quality early childhood and preschool services; adequate school facilities; supplemental programs and services for students from high-poverty backgrounds, including summer and after-school programs; appropriate programs and services for students with disabilities and English-language learners; resources including, but not limited to, textbooks, libraries, laboratories, and computers; and a safe, orderly learning environment. Not surprisingly, emerging evidence in most school districts that serve predominantly poor and minority students has established that most state education systems are not providing adequate funding or other resources necessary for students to achieve the targets that the states themselves had set. Indeed, the evidence supporting this position in our litigation in New York was so clear-cut that, at one point, Commissioner of Education Thomas Sobol, who by virtue of his job had been named a defendant, asked to switch sides in the case. Plaintiffs in adequacy suits have used testimony from experts to determine the additional amounts states should provide their school systems. While "costing out" is by no means yet an exact science, estimates are usually close enough to establish a "ballpark" range. The $5-billion figure adopted by New York's Gov. Spitzer, for example, represented an approximation derived from cost studies submitted to the court by the plaintiffs and the state department, as well as the mid-range of the illustrative cost analysis figures submitted by the previous governor's costing-out experts. Accomplishments of the Adequacy Movement What has the adequacy movement accomplished? At the most basic level, it has kept alive the quest for equity in the spirit of Brown, at a time when the integration of schools has fallen off the nation's radar screen. It has established the courts as a theater for advancing these equity aims, and it has further established objective criteria for adjudicating conflicts in this area. Furthermore, in states where money has actually changed hands, the adequacy movement has put valuable new resources to work for districts and schools. As the record clearly demonstrates, the adequacy movement has improved educational opportunities and led to gains in student achievement, the ultimate litmus tests. One sign of the coming of age of the adequacy movement is that its ideological opponents have begun to challenge its premises and its accomplishments.6 In essence, their grievances boil down to two that merit serious consideration: • Despite a wealth of evidence to the contrary, adequacy suits have not produced any improvement in students' performance. • The many courts that have ruled in favor of plaintiffs have overstepped their proper constitutional jurisdiction. In response to the first point, it should be noted that many adequacy cases, such as those in New York, North Carolina, and Kansas, have only recently concluded. Thus it is far too early to consider any data on student outcomes. Still, there have been some very obvious successes. Kentucky, the first state to which an adequacy verdict applied and perhaps the movement's most clear-cut success story, exemplifies the great potential of adequacy suits to make a difference in the classroom. One of the best analyses of Kentucky's adequacy case, Rose v. Council for Better Education, and its aftermath (including the Kentucky Education Reform Act or KERA) can be found in Final Test: the Battle for Adequacy in America's Schools, by California journalist Peter Schrag. In the chapter "Kentucky Landmark," Schrag writes:
On the negative side, the impact on secondary school dropout rates was inconclusive, and high-poverty schools continued to dominate the state's list of lowest performers. However, Schrag continues,
Schrag concludes: "There can't be many people who doubt that the Kentucky school climate has changed, and that in most respects things have gotten better." The latest results from Massachusetts suggest that there, too, adequacy litigation is paying dividends in terms of student achievement. A Boston Globe article from September 2006 opened by declaring: "Thirteen years after Massachusetts passed a landmark law that dramatically increased state spending on public education in exchange for higher standards, we are witnessing real public policy payoffs. You can see that in the impressive statewide MCAS [Massachusetts Comprehensive Assessment System] results for the class of 2008."9 The story went on to report that 84% of students set to graduate in 2008 had passed both the state's math and English tests on their first try, up from 81% in the previous year. The proportion of students scoring at the proficient or advanced levels increased from 64% to 70% on the English exam and from 61% to 67% on the math exam. Moreover, there were also major gains for African American and Hispanic students: 68% of black students achieved competency status on the first try, up from 58% in the previous year (and from 37% in 2001); and 61% of Hispanic students passed both tests, up from 53% in the previous year (and 29% in 2001). Certainly these states have not achieved perfection. New problems have arisen in Kentucky as efforts to maintain funding levels have foundered in recent years. But this is evidence of a lack of political will, not of flaws in the court's original remedy. Nor is it reasonable to blame adequacy suits, as some critics have, for failing to magically eliminate the achievement gap or for failing to boost test scores immediately in other states. The achievement gap is a huge, intractable problem that has defied solution by the executive and legislative branches of state governments for decades. And the courts cannot be expected, in just a few years, to overcome the impact of decades of inequitable funding and centuries of oppressive treatment of racial minorities. The courts can, however, play an indispensable role as part of a serious national effort to provide meaningful educational opportunities to all of our students. This view of the courts is considered controversial in some quarters. The argument that the courts lack a proper constitutional basis for intervening in school matters rests in large part on the concept of original intent -- the assertion that constitutional provisions are not basic legal propositions that need to be reinterpreted in the context of changing times but are fixed concepts that must be understood in exactly the same terms as their framers intended at the time of their creation. Of course, strictly following the original intent of those who frame our constitutions would mean rolling back the Brown decision itself. However, at this moment in our history, we need to recognize that a strict focus on the framers' intent undercuts the ever-increasing importance of education in the modern era. Consider, for example, that Wyoming inserted a clause in its constitution in 1889 that requires the state to provide children with a "thorough and efficient" and "complete and uniform" education. In 1995, based on that phrase, the Wyoming Supreme Court in Campbell County School District v. Wyoming mandated legislative action to provide students the "opportunity to become equipped for their future roles as citizens, participants in the political system, and competitors both economically and intellectually."10 Surely the court was right in looking to the future. Wyoming's framers recognized education as a key engine of growth, productivity, and prosperity. In their day, when America -- and certainly Wyoming -- was primarily a land of farms that functioned, for the most part, in economic isolation, a rudimentary knowledge of letters and numbers might have been appropriate. In our time, however, those demands have increased exponentially, as has the competition. Simply navigating one's own medical expenses or insurance -- let alone understanding a proposed zoning change or the impact that global warming might have on one's life in the near future -- presumes a vastly higher level of literacy, to say nothing of knowledge of biology, technology, world affairs, and more. The framers of New York's constitution explicitly foresaw such developments. Our litigation in the CFE case turned in part on hard evidence that the constitutional framers clearly recognized that the importance and value of education would only increase. We argued that the framers did, indeed, intend for future interpreters to understand the document in terms of contemporary need. In one of the more dramatic aspects of its decision, the New York Court of Appeals engaged in a dialogue across the centuries with the state constitution's framers. We (the plaintiff's counsel) had unearthed a report from 1894, submitted by the Committee on Education to the New York State Constitutional Convention, proposing language -- subsequently adopted as Article 11, Section 1 -- to more uniformly deliver quality education across all the state's common schools. The report, which explicitly argued for educational adequacy, stated that the "public problems confronting the rising generation will demand accurate knowledge and the highest development of reasoning power more than ever before." Judith Kaye, chief judge of the State of New York, specifically cited this phrase in her majority opinion in the court's second CFE ruling:
The appellate court affirmed the lower-court ruling and added that "the definition of a sound, basic education must serve the future as well as the case now before us." Some critics of adequacy litigation also argue that the courts' intervention in school matters violates the constitutional separation of powers and that the courts simply aren't qualified to handle an expanded role. They challenge the legitimacy of the courts' involvement with educational appropriations, as well as the courts' expertise in such matters. The answer to these charges is, first, that courts in adequacy cases do not seek to involve themselves in detailed issues regarding educational appropriations. Consistent with the long-established constitutional principle that it is the duty of the courts to uphold rights guaranteed by a constitution -- and especially the rights of "discrete and insular" minority groups whose needs are often ignored by legislative majorities -- state courts in the adequacy cases have invalidated state financing schemes that disadvantage urban and rural minority groups. Not a single court has, as part of its initial constitutional determination, told the legislative and executive branches how much they should spend or precisely how to reshape their existing funding formulas. Typically, the court holds that the existing system is unconstitutional and allows the other branches a reasonable period of time to determine what levels of funding and what formula revisions are needed to provide a suitable opportunity for all students to meet the state's own learning standards. In some cases -- most recently in Arkansas, Kansas, and New York -- courts have had to delve into cost determinations and other specific education finance issues only because the legislative and executive branches had refused to do their jobs. In all three of these recent cases, the political branches had proved unwilling to revamp the state's unconstitutional finance systems. The courts were thus left with the Hobson's choice of taking enforcement action or allowing major constitutional violations -- and the educational needs of millions of school children -- to remain unaddressed indefinitely. Yes, violations of the separation of powers took place in these instances. But the violators weren't the courts; they were the legislative and executive officials who had failed to respond to the courts' properly issued constitutional rulings. Regarding the courts' capacity to handle issues of education policy when necessary, I would point to an extensive empirical analysis of what courts actually did in over 50 education policy litigations.12 A number of years ago, a colleague and I found that evidentiary records accumulated in court cases were more complete and had more influence on the actual decision-making process than did the factual data obtained through legislative hearings, which tended to be contrived occasions for justifying political decisions that had already been made. Moreover, rather than purporting to have the expertise to determine education policy issues themselves, judges typically relied on experts in the field or pressured state and local school officials to negotiate policy solutions to resolve the constitutional issues. The cost studies that have been central to many of the finance reforms that have emerged from the adequacy cases are a prime example of how courts handle these complex funding issues. In many of the cases, the judges direct the state defendants to undertake an objective analysis of the costs of providing an adequate education. The decisions regarding the methodology, the personnel to undertake the analyses, and the specific policies that will result from the cost analysis are left to the discretion of the defendant states. It is only when the state refuses to take any action whatsoever in response to its own experts' recommendations, as in New York and Kansas, or when there is a substantial dispute as to whether certain aspects of the reforms adopted by the legislature satisfy particular constitutional requirements, as in Wyoming, that the courts get involved in reviewing any of the details of these cost studies. Eric Hanushek decries the increasing reliance on cost studies because the various methodologies on which they are based rely on "professional judgments" rather than on "accepted scientific standards." Although there is no "science" that will yield a precise funding figure that can guarantee specific student outcomes, in the real world of policy alternatives, the reliance on cost studies is a vast improvement over previous practice. Traditionally, in many states, determinations regarding the amount of money dedicated to education and its allocation to the various school districts were made secretly through political deals involving the proverbial "three men" -- the governor and the two legislative leaders -- in a back room. There was not even a pretense that these decisions were made objectively or on the basis of any data regarding actual student needs. By contrast, the professional judgments that undergird the cost studies are based on extensive need-based data, and these judgments are transparent in that they are open to analysis, criticism, and revision by policy makers and the public. Some courts have also included accountability requirements to safeguard the spending of the large sums mandated by their remedial orders, though, unfortunately, this has not been the prevailing trend. Because of sensitivity to charges of "judicial activism," most courts avoid taking these steps, and, even when they do call for accountability in general terms, they often don't follow through to ensure effective compliance. Last October, in the final legal argument in the CFE case, the state's attorney joined me and the other plaintiff attorneys in asking the New York Court of Appeals to impose specific planning and reporting requirements on the New York City Department of Education to ensure that the billions of dollars in extra spending that they were slated to receive would be spent effectively. One of the judges asked the state's attorney whether the legislature had the authority to impose these requirements. "Yes, they do," she answered, but then she also told the court that for the past two years they had been unable to come to an agreement to do so. In the final decision issued a month later, the court still refused to order these undeniably necessary safeguard measures. In a number of states where courts have declared current education finance systems to be unconstitutional, the executive and legislative branches strongly resist the courts' intervention. Everyone is harmed by these institutional confrontations, and students are harmed most of all. The truth is that reforming the nation's education system is a massive job that requires more of a colloquy than a contest involving the three branches of government. And it is equally true that, while money alone cannot fix the problems in our schools, it must be the starting point for this colloquy because adequate resources remain the sine qua non for addressing those problems at all. In his book, Peter Schrag calls our society's willingness to fairly fund education "the final test" of our commitment to the vision expressed in Brown. Only when all the branches of government work together, each in the roles for which it is best suited, can we pass that test and begin to provide meaningful educational opportunity to all students and begin to narrow the achievement gaps. 1. Martin R. West and Paul E. Peterson, eds., School Money Trials: The Legal Pursuit of Educational Adequacy (Washington, D.C.: Brookings Institution Press, 2007), p. 2. 2. Tamar Lewin and David M. Herszenhorn, "Money, Not Race, Is Fueling New Push to Bolster Schools," New York Times, 30 June 2007. 3. Letter from John Adams to Matthew Robinson, 23 March 1786, quoted in David McCullough, John Adams (New York: Simon and Schuster, 2001), p. 364. 4. David Grissmer, Ann Flanagan, and Stephanie Williamson, "Why Did the Black-White Score Gap Narrow in the 1970s and 1980s?," in Christopher Jencks and Meredith Phillips, eds., The Black-White Test Score Gap (Washington, D.C.: Brookings Institution Press, 1998), pp. 182-226. 5. Ibid., pp. 222-23. 6. See, for example, West and Peterson, op. cit; and Eric A. Hanushek, Courting Failure: How School Finance Lawsuits Exploit Judges' Good Intentions and Harm Our Children (Stanford, Calif.: Education Next Books, 2006). 7. Peter Schrag, Final Test: The Battle for Adequacy in America's Schools (New York: New Press, 2003), p. 92. 8. Ibid., p. 93. 9. Scot Lehigh, "A Closing of the Achievement Gap," Boston Globe, 22 September 2006. 10. Campbell County School District v. Wyoming, 907 P.2d 1238, 1259 (Wyo. 1995). 11. Campaign for Fiscal Equity v. New York, 100 N.Y.2d 893 (2003). 12. Michael A. Rebell and Arthur R. Block, Educational Policy-Making and the Courts: An Empirical Study of Judicial Activism (Chicago: University of Chicago Press, 1982). MICHAEL A. REBELL is executive director of the Campaign for Educational Equity, Teachers College, Columbia University, New York, N.Y.
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