Educational Adequacy, Democracy, and the Courts

Michael A. Rebell

The U.S. Supreme Court’s 1973 holding in San Antonio Independent School District v. Rodriguez1 that education was not a fundamental interest under the federal constitution has led to an unprecedented era of constitutional activity by the state courts in rectifying inequities in state education finance systems. Over the past three decades, litigations have been brought in 44 of the 50 states. This paper reviews the history of these litigations and focuses on the significance of the emergence in recent years of a core constitutional concept of students’ right to the opportunity for an adequate education.

The emphasis on adequacy has involved the courts in a significant dialogue with state legislatures and state education departments. Emerging from this dialogue are reinvigorated claims for increased resources for students in underfunded school districts as well as a new focus on the purposes of education and the states’ obligation to ensure that students actually develop the cognitive skills they need to succeed in the workplace and to be effective citizens in the modern world.

The paper begins with a brief retrospective review of Rodriguez. It then provides an overview of the state education finance cases. Although plaintiffs prevailed in the early litigations, by the early 1980s, defendants were winning most of these cases, primarily because the courts had great difficulty in devising solutions for the problems of funding inequities. Beginning in 1989, however, the pendulum again shifted: plaintiffs have won about two-thirds of the recent cases, mainly because the focus has shifted from equal protection claims to provisions of state constitutions



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Achieving High Educational Standards For All: Conference Summary Educational Adequacy, Democracy, and the Courts Michael A. Rebell The U.S. Supreme Court’s 1973 holding in San Antonio Independent School District v. Rodriguez1 that education was not a fundamental interest under the federal constitution has led to an unprecedented era of constitutional activity by the state courts in rectifying inequities in state education finance systems. Over the past three decades, litigations have been brought in 44 of the 50 states. This paper reviews the history of these litigations and focuses on the significance of the emergence in recent years of a core constitutional concept of students’ right to the opportunity for an adequate education. The emphasis on adequacy has involved the courts in a significant dialogue with state legislatures and state education departments. Emerging from this dialogue are reinvigorated claims for increased resources for students in underfunded school districts as well as a new focus on the purposes of education and the states’ obligation to ensure that students actually develop the cognitive skills they need to succeed in the workplace and to be effective citizens in the modern world. The paper begins with a brief retrospective review of Rodriguez. It then provides an overview of the state education finance cases. Although plaintiffs prevailed in the early litigations, by the early 1980s, defendants were winning most of these cases, primarily because the courts had great difficulty in devising solutions for the problems of funding inequities. Beginning in 1989, however, the pendulum again shifted: plaintiffs have won about two-thirds of the recent cases, mainly because the focus has shifted from equal protection claims to provisions of state constitutions

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Achieving High Educational Standards For All: Conference Summary that guarantee some substantive level of adequate education to all students. Instead of dealing with equal funding concepts and complex property tax reforms, the adequacy approach allows courts to focus on the concrete issues of what resources are needed to provide the opportunity for an adequate education to all students and the extent to which those resources are actually being provided. The third section analyzes the new state court adequacy litigations. It considers the link between the standards-based reform movement, which is now being implemented in virtually all of the states, and the courts’ recent emphasis on adequacy. It describes how standards-based reforms have provided the courts with “judicially manageable” tools that allow them to devise effective remedial orders in these cases. It also discusses a core constitutional definition of adequacy that has emerged from these cases in recent years. Forged through an implicit standards dialogue with legislatures and state education departments, this core constitutional concept defines the purpose of an adequate education in terms of preparation for civic participation and for the competitive job market; emphasizes the importance of relating constitutional requirements to contemporary needs; is pegged at a “more than minimal level”; and guarantees educational opportunities rather than specific educational outcomes. The final section considers the implications of this emerging definition of an adequate education for the education system—and for a democratic society. Describing testimony and evidence submitted in the recently completed trial in the New York adequacy litigation, it demonstrates the critical link between mastery of the skills required under standards-based reforms and the constitutional requirements for an adequate education. Consideration of the specific skills that students need to be effective voters and jurors and economic competitors—an issue that was finessed rather than faced in years past—demonstrates that the standards-based reform movement cannot be considered merely aspirational. Actual fulfillment of the stated goals of standards-based reform (the development of high-level cognitive skills in virtually all American high school students) may, in fact, be a sine qua non for the survival of American democracy in the 21st century. RODRIGUEZ IN RETROSPECT The significance of Rodriguez can be understood only in the context of the implementation of the U.S. Supreme Court’s earlier landmark civil rights ruling, Brown v. Board of Education.2 Emphasizing that today “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity for an education,”3 the Court held in Brown that “[s]eparate educational facilities are inherently unequal.”4 The Supreme

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Achieving High Educational Standards For All: Conference Summary Court’s dramatic declaration of the unconstitutionality of school segregation was followed, however, by a decade of minuscule progress in actually integrating Southern schools. During the 1963-1964 school year, barely 1 percent of black children attended school with white children in 11 Southern states.5 It was not until the late 1960s, after the Supreme Court announced in Green v. County School Board6 that Southern school boards must develop desegregation plans that promise “realistically to work now,”7 that substantial desegregation began to take place. The Green ruling, together with the passage of the Civil Rights Act of 1964, which held out a credible threat of a loss of federal funds, finally led to a substantial dismantling in many parts of the South of “freedom of choice” plans and other devices that were intentionally created by state and local officials to limit progress toward desegregation. By 1972 over 90 percent of black students in the deep South and over 75 percent in the border states attended school with at least some whites.8 Two of the major Supreme Court decisions of the early 1970s, however, precluded the possibility of large numbers of black and other minority students attending integrated schools in the North and the West. In Keyes v. School District No.1,9 the Court held that Brown’s mandate did not require desegregation of school systems that were segregated de facto because of housing patterns rather than intentional state actions. Then, in Milliken v. Bradley,10 the Court held that predominantly white suburbs would not be required to participate in metropolitan-area desegregation schemes, in the absence of evidence that these districts had, in the past, intentionally discriminated against minority students. Taken together, these rulings meant that the vast majority of black and other minority students in the United States would continue to attend segregated schools with inadequate educational resources. Thus, at the present time, more than two-thirds of the black and Hispanic students in the United States attend segregated schools in which most students are also poor.11 Soon after the glow began to fade from Brown’s initial luster, education reformers saw the need to devise political and legal methods for ensuring the provision of adequate resources to the large numbers of poor and minority students who would continue to attend segregated schools. Funding for remedial education programs became a major component of desegregation decrees, especially in Northern and Western cities where metropolitan-area remedies could no longer be pursued or where opposition to busing was intense. Following the Supreme Court’s reversal of its metropolitan-area desegregation remedy, for example, the U.S. District Court in Michigan approved a “Detroit only” remedial plan, which involved about $12 million worth of compensatory education programs, guidance and counseling programs, and inservice training programs for teachers.12

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Achieving High Educational Standards For All: Conference Summary Reformers also noted early on that the core problem behind the lack of equal education opportunity for many poor and minority students was the inequitable system of education finance that existed in almost every state. Rooted in the traditional pattern of local control of schooling in America, most state systems required much of the funding for public schools to be obtained from local property taxes, a method that inherently disadvantaged students who attended schools in areas that had low property wealth. Responding to this problem, several legal scholars developed constitutional theories that sought to equalize the funding capacity of all local school districts.13 These theories were tested in a number of state and federal litigations beginning in the late 1960s. One of these cases, Rodriguez v. San Antonio Independent School District, which challenged the extreme inequities created by the Texas education finance system, reached the U.S. Supreme Court in 1973. It seemed at the time an ideal vehicle for establishing a new legal doctrine to make good on Brown’s promise of equal educational opportunity. Given the strong emphasis the Supreme Court had placed on the preeminent role of education in modern society in Brown,14 and the prior precedent of the legislative reapportionment cases15 that had invalidated differential opportunities for citizens of different political subdivisions of a state, there was much expectation among civil rights advocates that the Court would respond favorably to a case calling for reform of inequitable school funding formulae.16 Rodriguez was initiated by parents whose children attended elementary and secondary schools in the Edgewood Independent School District, one of seven public school districts in the metropolitan San Antonio area. Edgewood’s students were approximately 90 percent Mexican-American and approximately 6 percent black. The district’s average assessed property value per student was so low that even with a relatively high local tax rate and supplemental state and federal state education aid, the district had only $356 per student to support education programs. By way of contrast, neighboring Alamo Heights, a predominantly “Anglo” school district, had such high property wealth that it could tax itself at a rate 20 percent below that of its poorer neighbor and still have nearly $600 available to spend on each of its students. Even when the largely minority citizens in the Edgewood district taxed themselves at a substantially higher rate, they were able to provide their students only about half the resources that were available to the more advantaged students in Alamo Heights. Although the three-judge district court had held that the Texas education finance system violated the federal equal protection clause,17 the U.S. Supreme Court reversed.18 Closely parsing each of the equal protection arguments put forward by the plaintiffs, the Court held that neither the

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Achieving High Educational Standards For All: Conference Summary poverty of the plaintiffs nor the importance of education would justify applying strict scrutiny to its review of the Texas education finance system. Justice Powell’s decision for the majority first dealt with the wealth discrimination issue by questioning whether in Texas or anywhere else “poor” persons necessarily lived in the poorest school districts. He also noted that the Supreme Court’s previous wealth discrimination cases had dealt with situations involving an “absolute” deprivation of the right at issue, rather than the type of “relative” deprivation at issue here.19 Next, although not denying the importance of education in modern society, the Court emphasized the absence of any specific reference to education in the federal constitution and rejected the argument that education is essential to the effective exercise of First Amendment freedoms like the right to vote. Justice Powell set forth a “slippery slope” argument, noting that if some level of education were to be considered a sine qua non for the exercise of political rights under the federal constitution, similar arguments could be made that “the ill-fed, ill-clothed, and ill-housed are among the most ineffective participants in the political process.”20 Having denied the plaintiffs’ calls for strict scrutiny based on the poverty of the plaintiffs and the fundamentality of education, the Court held that the Texas funding scheme was “rationally related” to the legitimate governmental interest of achieving a “large measure of participation in and control of each district’s schools at the local level.”21 Rejecting the dissent’s argument that lack of funding precluded poor districts from exercising any meaningful local control, the majority held that “some inequality” in the ability of local residents to make educational choices affecting their children “is not alone a sufficient basis for striking down the entire system.”22 Justice Powell’s decision was supported by only a 5-4 majority. Justice Marshall was the most vociferous of the four dissenters. He rebuked the majority for setting aside the district court’s finding that poor and minority group members tend to live in property-poor districts on the basis of a law review note of doubtful methodological validity.23 Justice Marshall also argued that the “close nexus between education and our established constitutional values with respect to freedom of speech and participation in the political process”24 compelled the Court to recognize that education and participation in the political process constitute a fundamental constitutional interest. Justice Powell, writing for the majority, accepted this constitutional connection between education and political participation: Exercise of the franchise, it is contended, cannot be divorced from the educational foundation of the voter. The electoral process, if reality is to conform to the democratic ideal, depends on an informed electorate: a

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Achieving High Educational Standards For All: Conference Summary voter cannot cast his ballot intelligently unless his reading skills and thought processes have been adequately developed. We need not dispute any of these propositions.25 Justice Powell ruled, however, that the Court did not have to fully consider the implications of this constitutional connection in the present case because: The State repeatedly asserted in its briefs . . . that it now assures “every child in every school district an adequate education.” No proof was offered at trial persuasively discrediting or refuting the State’s assertion. Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditure in Texas provide an education that falls short. . . . [No] charge fairly could be made [in the present case] that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.26 Thus, the majority decision implicitly left open the possibility of reconsidering this issue and taking some remedial action if, in a future case, it were to be established that students were being deprived of the type of “basic minimum” education the Court assumed that every Texas child was receiving. In fact, the Court went out of its way to reiterate this point in a later case when it stated that it still had not “definitively settled the questions whether a minimally adequate education is a fundamental right and whether a statute alleged to discriminatorily infringe that right should be accorded heightened equal protection review.”27 Despite its denial of relief to the plaintiffs in Rodriguez, the majority also noted the apparent need for reform of an education finance system that “may well have relied too long and too heavily on the local property tax,” and it went out of its way to state that “this Court’s action today is not to be viewed as placing its judicial imprimatur on the status quo.”28 The Court clearly hoped that both scholars “and the legislatures in the various states” would come up with “ultimate solutions”29 to these complex problems. Justice Powell’s evident sympathy for the plaintiffs’ plight and the majority’s implicit recognition that Brown’s vision of equal educational opportunity could not be realized without fundamental reform of the education funding system raise the question of why the Court did not remand the case for a trial to determine whether Texas was, in fact, providing a minimally adequate education to the plaintiff children under the challenged funding scheme. The Court’s quick acceptance of the state’s

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Achieving High Educational Standards For All: Conference Summary passing reference to the adequacy of the current system without any proof being presented on this critical issue leads one to speculate that other implicit concerns may have led one or more of the justices who sided with the majority to conclude that, despite the gravity of the plaintiffs’ claims, fiscal equity reform was not a feasible reform route for the Court to pursue at that time. Justice Powell, in fact, seemed to allude to such underlying concerns when he stated that upholding the lower court’s decision for the plaintiffs would lead to “an unparalleled upheaval in public education” and that there was no way of predicting “the consequences of massive change in the financing and control of public education.30 He and the other members of the Court majority were apparently deeply concerned about the dearth of clear solutions and the lack of judicially manageable standards for navigating this rough policy terrain: This case also involves the most persistent and difficult questions of educational policy, another area in which this Court’s lack of specialized knowledge and experience counsels against premature interference with the informed judgment made at the state and local levels. . . . On even the most basic questions in this area the scholars and educational experts are divided. . . . Equally unsettled [is the] controversy as to the proper goals of the system of public education. . . . In such circumstances, the judiciary is well advised to refrain from imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions.31 The Court’s awareness of the difficulties of formulating judicially manageable standards in this area did not, in fact, originate with Rodriguez. Four years earlier, it had reviewed a fiscal equity litigation involving disadvantaged urban students in McInnis v. Shapiro.32 Plaintiffs in that case had argued that the state’s education finance system, based on a minimum foundation level of $400 per student, was inadequate to meet their educational needs. They argued that there was a federal constitutional right to a “financing system which apportions public funds according to the educational needs of the students. . . .”33 The lower court dismissed their complaint, holding that the controversy was nonjusticiable because “there are no discoverable and manageable standards by which a court can determine when the Constitution is satisfied and when it is violated.”34 The McInnis plaintiffs seemed unable to help the court out of this dilemma. They suggested two alternative remedies: either that all students receive the same dollar appropriation or that the state, in effect,

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Achieving High Educational Standards For All: Conference Summary eliminate all variations in local property values while allowing districts to establish their own tax rates.35 As the court noted, however, neither one of these remedies would respond to plaintiff’s own claim that education funding should be directly related to student needs. The U.S. Supreme Court affirmed this holding, without opinion.36 McInnis’s strong emphasis on the lack of “discoverable and manageable standards” no doubt formed an important backdrop for the later Supreme Court decision in Rodriguez. Legal reformers in subsequent cases sought to meet this difficulty. Plaintiffs in Serrano v. Priest37 adopted a “fiscal neutrality” approach developed by John Coons and his colleagues at the Berkeley Law School.38 Avoiding entirely the difficulties involved in responding to students’ differing needs, this principle put forth a simple contention: that the level of resources available to students in each school district should not be a function of wealth, other than the wealth of the state as a whole. In other words, the fiscal neutrality principle holds that the state has a constitutional obligation to equalize the value of the taxable wealth in each district, so that equal tax efforts will yield equal resources. In Serrano, the California Supreme Court ruled in the plaintiffs’ favor and adopted the fiscal neutrality principle as a judicially manageable standard that avoided the “nebulous concept of educational needs” raised by McInnis.39 Although the fiscal neutrality principle provided courts with a clear benchmark for determining whether disparities in available wealth have been eliminated, it finessed the critical issue of educational need. Since the fiscal neutrality approach allowed local districts to retain broad discretion to set their own tax rates, this principle in no way guaranteed that districts would, in fact, set sufficiently high tax rates or utilize their resources in a manner that would ensure that all students were actually provided an opportunity for an adequate education. In other words, the fiscal neutrality principle provided a judicially manageable standard only because it avoided dealing with the complexities at the core of the issue— how to ensure an adequate level of education for all students and especially for those with distinctive educational needs. Although the fiscal neutrality principle was not accepted as a constitutional doctrine by the Supreme Court in its Rodriguez ruling,40 a number of state courts, following the Serrano precedent, did issue rulings that invalidated their state education finance systems on these grounds in the years following Rodriguez. By the mid-1980s, however, most of the state supreme courts that faced this problem tended to rule in the defendants’ favor, often citing Rodriguez as the prime precedent. Beginning in 1989, however, the pendulum swung back in the plaintiffs’ favor, in large part, it seems, because the problems of judicially manageable standards, first

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Achieving High Educational Standards For All: Conference Summary raised in McInnis and Rodriguez, began to be overcome by new legal and educational developments. CONSTITUTIONAL INITIATIVES IN THE STATE COURTS The Equity Decisions Since most state courts have lacked a tradition of extensive constitutional adjudication, the state courts were “long shots for plaintiffs challenging discrimination in school finance systems.”41 Nevertheless, armed with the California Supreme Court’s favorable initial ruling in Serrano— and seeing a fertile legal argument in the U.S. Supreme Court’s distinction between the role of education in federal and state constitutions— legal reformers in the mid-1970s initiated challenges to state education finance systems in a number of state courts. Several of the major rulings in these initial cases found for the plaintiffs, inspiring a plethora of follow-up litigations, and in the years since Rodriguez, constitutional challenges to state education finance systems have been launched in 44 of the 50 states. Thus, over the past 25 years, the development of constitutional doctrine concerning fiscal equity in education—and the quest for judicially manageable standards—have become matters of state rather than federal constitutional law. Most of the state courts that initially found for the plaintiffs in the years following Rodriguez accepted the basic equal protection arguments that had been rejected by the U.S. Supreme Court. Thus the California Supreme Court, reconsidering its initial Serrano ruling in the wake of Rodriguez, unequivocally held that even if education is not a fundamental right under the federal constitution, it clearly was so under the California equal protection clause.42 The Connecticut43 and the Wyoming supreme courts44 also found that education was a fundamental interest under their state equal protection clauses. The Arkansas Supreme Court adopted the same “rational relationship” equal protection standard as the U.S. Supreme Court, but, in contrast it determined that the state’s reliance on local property taxes had “no rational bearing on the educational needs of the districts.”45 The orders issued by these courts tended to direct the state legislatures to eliminate the inequities of the old system, but they provided little specific guidance on precisely how they should do so. Following the fiscal neutrality principle, some state legislatures adopted district power equalizing plans (DPE)46 which guaranteed each local district a specific amount of revenue for a given local tax rate, sometimes by “recapturing” the extra revenues generated by property-rich districts and redistributing them to property-poor districts. District power equalizing soon proved problem

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Achieving High Educational Standards For All: Conference Summary atic, however, because “…the variability of local tax rates proved trouble-some from several different perspectives. For example, some districts raised spending very little, taking almost all of the aid in the form of local tax relief. At the other extreme, some districts were hyper-stimulated because they received large subsidies from the state for each dollar of local educational taxes.”47 Moreover, recapture procedures involved in DPE schemes raised stiff opposition from wealthy districts, causing substantial legislative resistance to remedies in fiscal equity cases.48 Difficulties with district power equalizing led some courts to focus on reducing disparities in educational expenditures. Thus, in the second round of the Serrano litigation, the trial judge held that wealth-related disparities among school districts (apart from categorical special needs programs) must be reduced to “insignificant differences,” which he defined as “amounts considerably less than $100 dollars per pupil.”49 Unfortunately, this equalization mandate, combined with a constitutional cap on increases in local property taxes—known as Proposition 13, which had been adopted by California’s voters at the time—resulted in a dramatic leveling down of education expenditures: whereas California had ranked 5th in the nation in per pupil spending in 1964-1965, by 1994-1995 it had fallen to 42nd.50 In short, the call for equality through the fiscal neutrality principle had a powerful initial appeal, but in practice the quest for fiscal equality has proved elusive. Although judicial intervention has apparently narrowed the funding disparities somewhat among school districts,51 the core issues raised in Rodriguez—determining an adequate level of education and ensuring that all students have a fair opportunity to achieve it— were not satisfactorily addressed by these fiscal equity concepts. As Peter Enrich concluded: “Equalizing tax capacity does not by itself equalize education. The educationally relevant disparities not only reflect the tax base inequalities, but local political and administrative choices as well, not to mention the impact of preexisting differences in the students and their milieus.”52 The difficulties of actually achieving equal educational opportunity through the fiscal neutrality principle, as well as political resistance to judicial attempts to enforce court orders in the initial fiscal equity cases, seem to have dissuaded other state courts from venturing down this path. Despite an initial flurry of pro-plaintiff decisions in the mid-1970s, by the mid-1980s, the pendulum had decisively swung the other way: plaintiffs won only two decisions in the early 1980s, and, as of 1988, 15 years after Rodriguez, 15 of the state supreme courts had denied any relief to the plaintiffs—essentially for reasons similar to those articulated by the U.S. Supreme Court in Rodriguez—compared with the seven states in which plaintiffs had prevailed.53

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Achieving High Educational Standards For All: Conference Summary The Adequacy Decisions In light of the U.S. Supreme Court’s rejection of plaintiffs’ claims in Rodriguez and the difficulties experienced by the state courts that issued remedial decrees in the early years, it is remarkable that advocates and state court judges continued to seek new ways to ensure fair funding and meaningful educational opportunities for poor and minority students. Even more extraordinary is the fact that in the last decade there has been a strong reversal in the outcomes of state court litigations: plaintiffs have, in fact, prevailed in almost two-thirds (18 of 28) of the major decisions of the state highest courts since 1989.54 What is the explanation for the new willingness of state courts— which have historically been reluctant to innovate in areas of constitutional adjudication—to uphold challenges to state education finance systems? One answer might be the receptivity of the state courts to a powerful democratic imperative at the core of the American political tradition.55 By the mid 1980s, civil rights advocates were being battered not only by defeats in state court fiscal equity decisions, but also by judicial retrenchment in federal school desegregation cases.56 Although some might have expected these setbacks to extinguish the ardor of civil rights advocacy, the growing realization that more than 40 years after Brown v. Board of Education, large numbers of children were still being denied an adequate education and the awareness of the accelerating income gaps between the haves and have-nots had the opposite effect.57 The blatant inconsistency between the gnawing reality of continued denial of equal educational opportunity and the nation’s democratic ethos inspired plaintiff attorneys to devise new legal theories and galvanized the courts to considering them. The sensitivities engendered by a focus on the democratic imperative would not, however, have resulted in a dramatic turnaround in plaintiffs’ fortunes in these cases unless the courts felt that they had effective methods for remedying the educational inadequacies that were being brought to their attention. The standards-based reform movement, which responded to a widespread sentiment that the American education system was in serious trouble in the late 1980s, provided the tools that courts needed to deal with complex education issues.58 The courts’ assumption in Rodriguez and other early cases that virtually all students were receiving an adequate education was now turned on its head: it appeared now that a large number—maybe even a majority—of America’s students were not receiving an education adequate to compete in the global economy. The extensive education reform initiatives most states adopted to meet this challenge provided the courts workable criteria for developing the “judicially manageable standards” that were necessary to craft practical remedies in these litigations.

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Achieving High Educational Standards For All: Conference Summary 86.   WASH. CONST., Art. 9, §1 87.   Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71, 94 (Wash. 1978). 88.   Pauley v. Kelly, 255 S.E.2d 859, 877 (W. Va. 1979) 89.   Robinson v. Cahill, 355 A.2d 129 (1976). 90.   Abbott v. Burke, 575 A.2d 359 (N.J. 1990). Noting that the system of delegated responsibility resulted in district-level goals but no statewide “commonly accepted educational standards,” Id at 374, the court utilized comparative data regarding expenditures and performance in the poor and rich districts to reach its result Id at 375. For a discussion of a trend toward increasing reliance on equity approaches in the remedial phase of the New Jersey litigation see Enrich, supra note 17 at 131-135. The New Jersey legislature’s attempt to develop process standards and problems that developed in their implementation are discussed in Margaret E. Goertz & Malek Edwards, In Search of Excellence for All: The Courts and New Jersey School Finance Reform, 25 J. EDUC. FIN. 5 (1999). 91.   In Pauley v. Kelly, 255 S.E.2d 859, 877 (W.Va. 1979), the West Virginia Supreme Court defined the goals of a constitutionally acceptable education system in terms of literacy, ability to add, subtract, multiply and divide, knowledge of government, work training, interest in creative arts, and “social ethics.” 92.   The trial court then developed the goals articulated by the state Supreme Court into detailed standards in a 238-page decision. For example, the standards for early childhood education required, among other things, a maximum student teacher ratio of 1 to 20, plus support personnel, including a nurse two days a week; a facility containing at least 50 square feet per child, and furniture that “permits easy reorganization of the room.” Pauley v. Bailey, No. 7-1268, 24-25 (Kanawha Co. Cir. Ct., 1982). This order was supplemented by a 356-page master plan for its implementation drafted by an advisory committee appointed by the state superintendent of schools and incorporated into a later court order. 93.   The state Supreme Court of Appeals took no active steps to enforce the trial court’s order. Pauley v. Bailey, 324 S.E.2d 128 (W. Va. 1984). For discussions of the lack of effective implementation after this ruling, see Jack L. Flannagan, West Virginia’s Financial Dilemma: The Ideal School System in the Real World, 15 J. EDUC. FIN. 229 (1989) and Margaret D. Smith & Perry A. Zirkel, Pauley v. Kelley: School Finances and Facilities in West Virginia, 13 J. EDUC. FIN. 264 (1988). 94.   Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71 at 95 (Wash., 1978). The plaintiffs had asked the court to mandate explicit standards for defining the state’s constitutional obligations in terms of student/teacher ratios, requirements for special education, and other elements of an educational program. The court rejected this request, but it did instruct the legislature to utilize “dependable and regular tax sources” and stated that “the state’s constitutional duty goes beyond mere reading, writing and arithmetic.” See JAY G. CHAMBERS, THE ISSUE OF ADEQUACY IN THE FINANCING OF PUBLIC EDUCATION: HOW MUCH IS ENOUGH? 55 (1982). 95.   1977 ex. s. c359 § 1. The act defined “basic education” in terms of broad educational goals and specified the minimum hours, days, and instructional programs that school districts were required to offer. The state assumed the responsibility for fully funding the newly defined basic education through an allocation formula based on a ratio of students to certificated staff, with additional compensation for books, supplies, utilities, and other specified costs. For details of the Washington legislation, see DIANE W. CIPOLLONE (CAMPAIGN FOR FISCAL EQUITY INC.), DEFINING A BASIC EDUCATION; EQUITY AND ADEQUACY LITIGATION IN THE STATE OF WASHINGTON, 10-11(1998). 96.   Between 1976-1977 and 1989-1990, the share of state and local revenues received by districts educating the highest percentage of students eligible for free or reduced

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Achieving High Educational Standards For All: Conference Summary     lunches fell 4.9 percent, while the share of districts with the lowest percentage of such students rose 2.5 percent. Neil D. Theobald & Faith Hannah, Ample Provision for Home? The Evolution of State Control Over School Finance in Washington, 17 J. EDUC. FIN., 7, 222-225 (1991). The trial court, in a decision that was not appealed to the state Supreme Court, had at one point expanded the definition of “basic education” to include special education, and transitional bilingual, vocational, and remedial programs, as well as pupil transportation, but did not guarantee a specific level of funding. For a discussion of the implementation of the Basic Education Act, see Cippolone, supra note 96 at 17-21. 97.   790 S.W.2d 186 (Ky. 1989). 98.   Id. at 197. 99.   Id. at 212. 100.   Id. at 212-213. The court also held, inter alia, that the state education system must be monitored by the legislature to ensure that there is no waste or mismanagement, and that the “General Assembly shall provide funding which is sufficient to provide each child in Kentucky an adequate education.” 101.   For a discussion of this process and the earlier public engagement activities on education reform that were led by the Prichard Committee, see Molly A. Hunter, All Eyes Forward: Public Engagement and Educational Reform in Kentucky, 28 J. L. & EDUC. 485 (1999). 102.   See id. 103.   See McDuffy v. Secretary, 615 N.E.2d 516, 554 (Mass. 1993), Claremont v. Governor, 703 A.2d 1353, 1359 (N.H. 1997). 104.   Leandro v. State, 488 S.E.2d 249, 255 (N.C. 1997); The Rose decision also directly influenced the constitutional definitions adopted by the courts in Alabama and South Carolina. See Alabama Opinion of the Justice, 624 So.2d 107 (Ala. 1993); Abbeville County Sch. Dist. v. State, 515 S.E.2d 535 (S.C. 1999); See also Unified Sch. Dist. No. 229 v. State, 885 P.2d 1170, 1186 (Kan. 1994) (Noting the striking resemblance between Rose standards and standards enacted by Kansas legislature.) 105.   Idaho Sch. for Equal Educ. Opportunity v. Evans, 850 P.2d 724, 734 (Idaho 1993); see also Idaho Sch. for Equal Educ. Opportunity v. State, 976 P.2d 913, 920 (Idaho 1998) (upholding new state board rules as being consistent with constitutional requirements). See also Fair School Fin. Council v. State, 746 P.2d 1135, 1149 (Okla. 1987) (holding that the constitution guarantees a “basic, adequate education according to the standards that may be established by the state Board of Education”); Unified Sch. Dist No. 229 v. State, 885 P.2d 1170, 1186 (Kan. 1994) (the court will use as a base for defining adequacy “the standards enunciated by the legislature and the state education department”). 106.   917 S.W.2d 717, 730 (Tex. 1995) 107.   Claremont Sch. Dist. v. Governor, 703A.2d 1353, 1358 (N.H. 1997). 108.   Id. at 1359. For a detailed discussion of the legislature’s handling of this charge in the context of strong pressures to limit state taxes and maximize local control, see DREW DUNPHY (CAMPAIGN FOR FISCAL EQUITY, INC.), MOVING MOUNTAINS IN THE GRANITE STATE: SCHOOL FINANCE AND ADEQUACY REFORM IN NEW HAMPSHIRE (2001). 109.   Abbott v. Burke, 693 A.2d 417, 427 (N.J. 1997). “The standards provide achievement goals applicable to all students in seven core academic areas: visual and performing arts, comprehensive health and physical education, language-arts literacy, mathematics, science, social studies, and world languages. Infused throughout the seven core academic areas are five “cross-content workplace readiness standards,” which are designed to incorporate career-planning skills, technology skills, critical-thinking skills, decision-making and problem-solving skills, self-management, and safety principles.” Id. at 425 (citations omitted).

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Achieving High Educational Standards For All: Conference Summary 110.   Id. at 428. 111.   Id. at 429 (“Because [it] does not in any concrete way attempt to link the content standards to the actual funding needed to deliver that content, we concluded that [the act] is clearly inadequate and thus unconstitutional as applied to the special needs districts”). The court then ordered (at least as an interim remedy, pending a showing that a thorough and efficient education can be ensured through other means) spending for the poor districts at the same level as average spending in affluent districts, and additional supplemental programs to overcome educational disadvantages. Id. at 439. 112.   The New York Court of Appeals, in a preliminary decision on a motion to dismiss, had issued a “template” definition of “the opportunity for a sound basic education” required by its state constitution. This definition included both substantive educational goals (basic skills “necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury”) and specific resource essentials (including “minimally adequate facilities,” “minimally adequate instrumentalities of learning,” “sufficient personnel adequately trained to teach . . . up-to-date basic curricula”). These definitional concepts had not been suggested by either party to the litigation and had been developed by the court on its own initiative. In remanding the case for a trial to determine the extent to which children in New York City are actually being provided these opportunities, the court indicated that it was interested in a thorough adversarial analysis of these concepts at trial and that it would finally resolve the question of how a sound basic education should be defined, after reviewing the trial record, on a subsequent appeal. Campaign for Fiscal Equity v. State, 655 N.E.2d 661 (N.Y. 1995). The author is cocounsel for the plaintiffs in this case. 113.   Campaign for Fiscal Equity v. State, 719 N.Y.S. 2d 475 (NY Sup Ct. 2001). The court stated that equating the constitutional requirement with a set of state regulations would “essentially define the ambit of a constitutional right by whatever a state agency says it is.” Id. at 484. 114.   REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK, LEARNING STANDARDS FOR ENGLISH LANGUAGE ARTS STANDARD 1, LANGUAGE FOR INFORMATION AND UNDERSTANDING: LISTENING AND READING. COMMENCEMENT (REV. ED. MARCH 1996). 115.   719 N.Y.S.2D AT 484. 116.   REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK, LEARNING STANDARDS FOR MATHEMATICS, SCIENCE AND TECHNOLOGY, STANDARD 4 - SCIENCE, COMMENCEMENT (REV. ED. MARCH 1996). 117.   719 N.Y.S.2d at 484. 118.   Hoke County Bd. of Educ. v. State, 95 C.V.S. 1158, 2000 WL 1639686, slip op. at 30 (N.C. Sup. Ct. Oct. 12, 2000). This case is a follow-up to Leandro v. State, 488 S.C.2d 249 (N.C. 1997). In Leandro, the state supreme court defined the constitutional concept of a sound basic education and remanded the case for a trial to determine whether children in North Carolina were receiving an education that comported with those requirements. 119.   Id. The New York court also ruled that art and physical education were beyond the scope of a sound basic education, but it also stated: “However, arts education and physical education are important means of supporting the teaching of other subject areas that are part of a sound basic education.” 719 N.Y.S.2d at 500. 120.   719 N.Y.S.2d at 485. The North Carolina court similarly rejected the state’s contention that performance “Level II” on the states “End of Grade” tests for grades 3 through 8 met constitutional requirements. Level II was defined as performance demonstrating “inconsistent mastery” of grade-level skills as set forth in the state’s standard course of study. The court specifically held that “academic performance below grade level (Level II) is a constitutionally unacceptable minimal standard.” Hoke County, slip op. at 18. 121.   719 N.Y.S.2d at 487.

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Achieving High Educational Standards For All: Conference Summary 122.   Id. at 485. 123.   Id. at 487. 124.   Id. at 486. 125.   George D. Brown, Binding Advisory Opinions: A Federal Court’s Perspective on State Court School Finance Decisions, 35 B.C. L. REV 543, 567 (1994). Brown distinguished this new form of “dialogic” public law litigation in the state courts from the “managerial model” of the federal courts. Id. at 566. 126.   DeRolph v. State, 677 N.E.2d 733, 745 (Ohio, 1997). 127.   Id. at 744. 128.   Id. at 747. In Arizona, where the core issue was capital facilities disparities, the Supreme Court enunciated guidelines for a new capital funding system emphasizing that: the baseline chosen must establish the level of funds necessary to (1) bring existing facilities up to an adequate standard; (2) construct new and adequate facilities for growing districts; and (3) maintain all capital facilities at the adequacy level. Hull v. Albrecht, 950 P.2d 1141, 1145 (Ariz. 1997). 129.   Campbell County Sch. Dist. v. State, 907 P.2d 1238, 1279 (Wyo. 1995). 130.   Coalition for Adequacy and Fairness in Sch. Funding, Inc. v. Chiles, 680 So.2d 400, 408 (Fla. 1996). A majority of the justices did agree that the constitution created a duty for the legislature to provide some minimal level of support for public education, which would, for example, be triggered if a county had a 30 percent illiteracy rate. Id. at 409 (Overton, J., concurring). 131.   See Jon Mills & Timothy Mclendon, Setting A New Standard for Public Education: Revision 6 Increases the Duty of the State to Make “Adequate Provision” for Florida Schools, 52 FLA. L. REV. 329, 367 (2000). 132.   FLA. CONST., art. IX, § 1. Public Education of Children. 133.   Verstegen and Whitney, supra note 32. 134.   Vincent v. Voight, 614 N.W.2d 388, 396 (Wis. 2000); see also Robinson v. Cahill, 303 A. 2d 273, 295 (N.J. 1973); Pauley v. Kelly, 255 S.E.2d 859, 877 (W.Va. 1979); Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71, 94 (Wash. 1978); Serrano v. Priest, 487 P.2d. 1241, 1258-59 (Cal. 1971) (education is “crucial to . . . the functioning of democracy [and to] an individual’s opportunity to compete successfully in the economic marketplace); Edgewood Indep. Sch. Dist v. Kirby, 777 S.W.2d 391, 395-96 (Tex. 1989)(citing intent of the framers of the education clause to diffuse knowledge “for the preservation of democracy . . . and for the growth of the economy”); Claremont Sch. Dist. v. Governor, 635 A.2d 1375, 1381 (defining constitutional duty in terms of preparing “citizens for their role as participants and as potential competitors in today’s marketplace of ideas”); Campbell Sch. Dist.v. State, 907 P.2d 1238, 1259 (defining the core constitutional requirement in terms of providing students with “a uniform opportunity to become equipped for their future roles as citizens, participants in the political system, and competitors both economically and intellectually); Campaign for Fiscal Equity, Inc. v. State, 655 N.E. 2d 661, 666 (N.Y. 1995) (defining “sound basic education” in terms of preparing students to “function productively as civic participants capable of voting and serving on a jury,” a definition that was further refined in the recent trial court decision (719 N.Y.S.2d 475 (N.Y. Sup. Ct. 2001) to include a specific reference to skills needed for “sustaining competitive employment”); Abbeville County. Sch. Dist. v. State, 515 S.E.2d 535, 540 (defining minimum adequacy inter alia, in terms of “fundamental knowledge of . . . history and governmental processes” and “vocational skills”). 135.   Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71, 94 (Wash. 1978). 136.   Robinson v. Cahill, 303 A. 2d 273 (1973) 137.   Campbell County Sch. Dist. v. State, 907 P.2d 1238, 1274 (Wyo. 1995); see also Leandro v. State, 488 S.E.2d 249, 255 (N.C. 1997) (holding that the framers of the education clause

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Achieving High Educational Standards For All: Conference Summary     intended to allow students to “participate fully in society as it existed in his or her lifetime”); Mc Duffy v. Secretary, 615 N.E.2d 516, 555 (Mass. 1993) (“Our Constitution, and its education clause, must be interpreted ‘in accordance’ with the demands of modern society or it will be in constant danger of becoming atrophied”) (citing Seattle Sch. Dist. No.1 v. State, 585 P.2d 71 (Wash. 1978)). 138.   See, e.g., Unified Sch. Dist. 229 v. State, 885 P.2d 1170, 1186 (Kan. 1994) (noting a “striking resemblance” between legislative standards based on the goals of “preparing learners to live, learn and work in a global society” and constitutional definitions of adequate education in Rose, Hunt and Abbott); Campaign for Fiscal Equity v. State, 719 N.Y.S.2d 475, 487 (making explicit references to the reports of the national education summits and employers’ and educators’ perspectives). 139.   Claremont Sch. Dist. v. Governor, 635 A.2d 1375, 1381 (N.H. 1993); see also Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71 (Wash. 1978); Martin Carnoy, Education Adequacy: Alternative Perspectives and Their Implications for Educational Finance, 8 J. EDUC. FIN. 286, 288 (1982) (“[T]he notion that . . . level of achievement [defines adequacy] is historically defined. In 1920, the level may have been literacy; in 1950, it may have been an eighth grade reading level; in 1980 it probably would be thought of in terms of tenth to twelfth grade skills and some knowledge of algebra and geometry.”) 140.   See Brigham v. State, 692 A. 2d 384, 397 (Vt. 1997); See also William H. Clune, The Shift from Equity to Adequacy in School Finance, 8 EDUC. POL’Y 376 (1994) (describing the thrust of the cases as calling for a high minimum level). 141.   Minorini and Sugarman, supra note 57 at 188. 142.   1996 NATIONAL EDUCATION SUMMIT POLICY STATEMENT; see also, ACHIEVE, INC., BENCHMARKING THE BEST, 3 (1999) (“Almost two-thirds of today’s workforce needs advanced reading, writing , mathematical and critical thinking skills, compared to only 15 percent of workers just twenty years ago.”); REPORT OF THE SECRETARY’S COMMISSION ON ACHIEVING NECESSARY SKILLS (“SCANS”) (1991) (finding that students need much higher levels of technical skill and knowledge than in the past, including the ability to manage and comprehend complex texts and information); NATIONAL CENTER ON EDUCATION AND THE ECONOMY, AMERICA’S CHOICE: HIGHER SKILLS OR LOW WAGES (1990) (comparing skill levels of students graduating from American schools with graduates of other industrial nations and concluding that American workers need higher-level skills to be competitive). 143.   Abbeville County Sch. Dist. v. State, 515 S.E.2d 535, 540 (Ala. 1999); see also Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989); McDuffy v. Secretary, 615 N.E.2d 516 (Mass. 1993), Claremont Sch. Dist. v. Governor, 635 A.2d 1375, 1381 (N.H. 1993), Leandro v. State, 488 S.E.2d 249 (N.C. 1997). 144.   Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 393 (Tex. 1989); see also, e.g., McDuffy, 615 N.E. 2d at 521 (comparing facilities, libraries, computers, staffing, etc., in specific poor and affluent school districts); Abbott v. Burke, 575 A. 2d 359, 395-396 (comparing, inter alia, availability of computers, science laboratories, and foreign language and advanced placement courses in rich and poor districts). 145.   Helena Elementary Sch. Dist. No. 1 v. State, 769 P. 2d 684, 690 (Mont. 1989). 146.   Deborah A. Verstegen, Judicial Analysis During the New Wave of School Finance Litigation: The New Adequacy in Education, 24 J. EDUC. FIN. 51, 67 (1998). 147.   FLA. CONST. art IX, § 1. 148.   This does not mean, however, that constitutional adequacy requirements are synonymous with current legislative or regulatory standards in any particular state. Constitutional criteria represent enduring fundamental values and principles; although their application will be influenced by contemporary needs, that need is assessed by the courts in terms of fundamental principles and not periodic legislative or administra

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Achieving High Educational Standards For All: Conference Summary     tive policy revisions. See also discussion of Campaign for Fiscal Equity v. State, supra note 114. 149.   See discussion, supra at 14. 150.   Opinion of the Justices, 624 So.2d 107, 128 (1993). The Alabama trial court utilized three sets of state standards in determining that the state’s schools were not providing an adequate education: the substantive educational standards set forth in the Alabama Education Improvement Act; state and regional accreditation standards; and indicators utilized by state officials, such as dropout rates, college remediation rates, and workforce preparation. Id. at 127. See also Martha I. Morgan, et al., Establishing Education Program Inadequacy: The Alabama Example, 28 U. MICH. J.L. Reform 559 (1995). 151.   For a detailed discussion of the concepts of “equality of opportunity” and “equality of results” in American political history and in the evolution of federal desegregation doctrine, see MICHAEL A. REBELL AND ARTHUR R. BLOCK, EQUALITY AND EDUCATION: FEDERAL CIVIL RIGHTS ENFORCEMENT IN THE NEW YORK CITY SCHOOL SYSTEM, 3-33 (1985). 152.   See, e.g., Campaign for Fiscal Equity v. State, 655 N.E.2d 661, 666 (N.Y. 1995) (“Performance levels on such examinations are helpful but should also be used cautiously as there are a myriad of factors which have a causal bearing on test results”); Leandro v. State, 488 S.E. 2d 249, 259-60 (N.C. 1997) (Holding that the “level of performance of the children of the state and its various districts on standard achievement tests” may be considered, but “they may not be treated as absolutely authoritative on this issue”); see also Linda Darling-Hammond, Standards of Practice for Learner-Centered Schools, in ROBERT BERNE AND LAWRENCE O. PICUS, OUTCOME EQUITY IN EDUCATION 191, 192-194 (1994) (discussing the limits of outcome data); Henry M. Levin, Little Things Mean a Lot, 8 EDUC. POL’Y 396 (1994) (discussing the lack of sufficient measurement tools to assess precisely the quality of education received by all students or the costs of reaching full substantive equality). 153.   See, e.g., Campaign for Fiscal Equity v. State, 655 N.E.2d at 666 (articulating “education essentials” required to provide the opportunity for a sound basic education in terms of “minimally adequate physical facilities,” “instrumentalities of learning,” sufficient numbers of adequately trained teachers, etc.); see also Gary Orfield, Asking the Right Question, 8 EDUC. POL’Y 404 (1994) (discussing minimum prerequisites that schools should provide for “fair minimum standards of opportunity,” rather than for “equal education”); W. Steven Barnett, Obstacles and Opportunities: Some Simple Economics of School Finance Reform, 8 EDUC. POL’Y 436, 444-445 (arguing for cost-benefit analysis of reforms that make substantial difference in the educational performance of poor students); Richard F. Elmore, Thoughts on Program Equity: Programs and Incentives for Equity in Education, 8 EDUC. POL’Y 453 (same). 154.   See, e.g. Vincent v. Voight, 614 N.W. 2d 388, 397 (Wis, 2000). (requiring legislature to “take into account districts with disproportionate numbers of disabled students, economically disadvantaged students and students with limited English language skills”); Campaign for Fiscal Equity v. State, 719 N.Y.S.2d 475 (N.Y. Sup. Ct. 2001) (further elaborating on the education essentials required for a sound basic education by, inter alia, emphasizing the need for “adequate resources for students with extraordinary needs” and an expanded platform of programs for at risk students; Hoke County Bd. of Educ. v. State, 95 C.V.S. 1158, 2000 WL 1639686, slip op. at 30 (N.C. Sup. Ct. Oct. 12, 2000) (holding that at-risk students are constitutionally entitled to a preschool education); Hull v. Albrecht, 950 P.2d 1141, 1145 (Ariz. 1997) (requiring the state to provide financing sufficient to provide the facilities and equipment necessary “to enable students to master the [state’s] educational goals”). 155.   Wisconsin v. Yoder, 406 U.S. 205, 221 (1972) 156.   ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 329 (Vintage 1961).

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Achieving High Educational Standards For All: Conference Summary 157.   See, e.g., ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997) (discussing systematic exclusion of women, minorities, and working-class people from exercise of the franchise); Thiel v. Southern Pacific County, 328 U.S. 217, 222 (1946) (discussing systematic exclusion from jury lists of those who work for a daily wage); Taylor v. Louisiana, 419 U.S. 522, 538 (1975) (discussing systematic exclusion of women from jury rolls). 158.   Rodriguez v. San Antonio Indep. Sch. Dist., 411 U.S. 1, 36. 159.   MICHAEL SCHUDSON, THE GOOD CITIZEN: A HISTORY OF AMERICAN CIVIC LIFE 8 (1998). 160.   See, e.g., AMY GUTMANN, DEMOCRATIC EDUCATION 134 (1987) (asserting that inequalities in distribution of educational goods can be justified only if they do not deprive any child of the ability to participate effectively in the democratic process.) 161.   Research and analysis and the drafting of the standards in New York was conducted by seven different curriculum committees, one for each key area of the school curriculum. The members of these committees included teachers, principals, experts in the disciplines from higher education, and also people from public life—from the professions, unions, business, and industry. An overarching Council on Curriculum and Assessment oversaw and coordinated the work of the separate committees. Memorandum from Thomas Sobol, New York State commissioner of education, to the New York Board of Regents: Implementing a New Compact for Learning: Strategic Plan 2 (1991). Throughout the drafting process, New York’s state education department and Thomas Sobol, the commissioner of education, maintained ongoing communications on standards developments with their counterparts in other states and with the New Standards Project, of which Commissioner Sobol was, at the time, the chair. Testimony of Commissioner Sobol in Campaign for Fiscal Equity v. State, 719 N.Y.S.2d 475 (N.Y. Sup. Ct. 2001) (Record at pp.1020:23-1022:13). For a summary of a comparable standards development process in the State of North Carolina, see Hoke County Bd. of Educ. v. State, 95 C.V.S. 1158, 2000 WL 1639686, slip op. at 30 (N.C. Sup. Ct. Oct. 12, 2000). 162.   THE NEW YORK STATE CURRICULUM AND ASSESSMENT COUNCIL, LEARNING CENTERED-CURRICULUM ASSESSMENT FOR NEW YORK CITY. (1994) at 8-9, 63-65; Testimony of Linda Darling Hammond in Campaign for Fiscal Equity v. State, 719 N.Y.S.2d 475; Record at pp. 6472:12-6473:17. The council also fully considered evidence on workplace skills such as the 1991 SCANS report (see discussion at supra) and stated that one of the primary purposes of the extensive standards development process they undertook was to identify the “higher-levels of technical as well as reasoning and analytical skills that workers need to function.” Id. at 6460:19-21. 163.   Rose v. Council for Better Educ., 790 S.W.2d 186, 212 (Ky. 1989). 164.   See discussion supra note 113. 165.   Campaign for Fiscal Equity v. State, 719 N.Y.S.2d 475; Record at pp. 6484, 6489. Richard Jaeger, a psychometrician and professor at the University of North Carolina, Greensboro, also testified that in order to comprehend ballot propositions on subjects like budget issues, voters need analytic, synthesizing, and evaluative skills that are properly assessed by the Regents examinations and that are based on the learning standards. Id. at 13452 - 13460. Henry Levin, an educational economist and professor at Teachers College, Columbia University, testified that the kinds of reasoning, communication, problem-solving, decision-making, informational, and other skills that are needed in the contemporary workplace are also specifically incorporated into the Regents learning standards. Id. at 12107 - 12117. 166.   Id. at p. 6516. 167.   Id. at p. 6517. 168.   Id. at pp. 6522-6524;6528-6534.

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Achieving High Educational Standards For All: Conference Summary 169.   See People v. Guzman, 555 N.E.2d 259, 261 (N.Y. 1990) (“At a minimum, a juror must be able to understand all of the evidence presented, evaluate that evidence in a rational manner, communicate effectively with the other jurors during deliberations, and comprehend the applicable legal principles, as instructed by the court.”) 170.   Campaign for Fiscal Equity v. State, 719 N.Y.S.2d 475; Record at pp.16874, 16878-79. 16886, 16888-89; Defendants Exhibit No. 19290, (“Primary News Sources in Presidential and Congressional Campaigns, U.S., 1996.”) Defendants Exhibit No. 19293; (Percentage of People who Watch Network News Two or More Times Weekly by Education Level, U.S., 1983). 171.   Campaign for Fiscal Equity v. State, 719 N.Y.S.2d 475; Record at pp. 17182-17183. The plaintiffs argued that Walberg’s analysis relied on reading scales that focus on sentence length and other mechanical factors, rather than on the cognitive level of the materials being reviewed, and that by doing so he reached the implausible conclusion that the New York Times and the New York Daily News have essentially the same level of reading difficulty. They also charged that Walberg analyzed only selected parts of the jury documents that the plaintiffs’ witnesses had reviewed, and he omitted precisely those materials that would have called for the highest level of reading skills. Id. at pp. 17185, 17201, 17215; 17317-17321, 17335-336. Walberg did not undertake any readability analysis of the ballot that Darling-Hammond had analyzed. Id. at p. 17329. 172.   “If one person didn’t understand something, perhaps another person could help them.” Id. at 17220. 173.   Campaign for Fiscal Equity v. State, 719 N.Y.S.2d 475, 485 (N.Y. Sup. Ct. 2001). 174.   See id. at 485. (“The Court of Appeals invoked voting and jury service as synecdoches for the larger concept of productive citizenship. . . . Productive citizenship means more than just being qualified to vote or serve as a juror, but to do so capably and knowledgeably. It connotes civic engagement”); cf Claremont Sch. Dist. v. Governor, 635 A.2d 1375, 1381 (N.H. 1993) (“a free government is dependent for its survival on citizens who are able to participate intelligently in the political, economic and social functions of our system”). 175.   Many citizens also do not vote or serve on juries because they feel disengaged or are cynical about the current political system. America’s voter participation rate—48.9 percent in the 1996 presidential election (down from 62.8 percent in 1960)—ranks below 22 other established democracies. ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY 31-31 (2000). Putnam explains the substantial decline in civic participation in America in recent years in terms of a rapid decline in “social capital.” He recommends improved civic education in schools as one route for restoring such social capital. Id at 405. 176.   See, e.g., MOLLY SELVIN AND LARRY PICUS, THE DEBATE OVER JURY PERFORMANCE: OBSERVATIONS FROM A RECENT ASBESTOS CASE 45-46 (1987), ARTHUR D. AUSTIN, COMPLEX LITIGATION CONFRONTS THE JURY SYSTEM: A CASE STUDY (1984); William C. Thompson, Are Juries Competent to Evaluate Statistical Evidence? 52 LAW & CONTEMP. PROB. 9, 24-41 (1989). 177.   “If the jury has an Achilles heel, it is the comprehension of legal instructions.” Joe S. Cecil et al., Citizen Comprehension of Difficult Issues: Lessons from Civil Jury Trials, 40 AM. UNIV. L. REV. 727, 749 (1991). The authors cite a recent in-depth examination of jury decision making in complex cases by the Litigation Section of the American Bar Association, which found significant juror difficulty in understanding and applying judicial instructions and substantial variability in juror comprehension between cases and among jurors. Id. at 752-754; see also, e.g., Franklin Strier, The Educated Jury: A Proposal for Complex Litigation 47 PAUL L. REV 47, 53 (discussing studies indicating that pattern jury instructions are difficult for juries to understand); AUSTIN, supra note 178 at 84-85 (case study of two separate juries in antitrust litigation found that “their comprehen

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Achieving High Educational Standards For All: Conference Summary     sion level of the instructions was very low, if not nonexistent”); Robert E. Litan, Introduction to VERDICT: ASSESSING THE CIVIL JURY SYSTEM 11, 18 (Robert W. Litan ed., 1993) (“whereas juries appear to be at fault for misplaced verdicts, the principal culprit seems to be difficulty in understanding the legal instructions, a problem that is found in complex and noncomplex cases”). 178.   Warren E. Burger, The Use of Lay Jurors in Complicated Civil Cases, Remarks to the Conference of State Chief Justices (3-5) (Aug 7, 1979) (asserting that technical evidence is too complex for lay juries); see also Warren E. Burger, Agenda for Change, 54 JUDICATURE 232, 235 (1971) (recommending consideration of use of experts to assist judges in complex cases); Sperlich, The Case for Preserving Trial by Jury in Complex Civil Litigation, 65 JUDICATURE 394, 397 (1982) (discussing Chief Justice Burger’s concern and its impact). 179.   Burger Suggests Waiving Juries in Complex Civil Trials, NAT’L L.J., Aug.13, 1979, at 21. 180.   See, e.g., William Luneberg & Mark A. Nordenberg, Specially Qualified Juries & Expert Nonjury Tribunals: Alternatives for Coping with the Complexities of Modern Civil Litigation, 67 VA. L. REV. 887, 945-50 (1981); Mark A. Nordenberg & William Luneberg, Decision-Making in Complex Federal Civil Cases: Two Alternatives to the Traditional Jury, 65 JUDICATURE 420, 425-27 (1982) (proposing that jurors in complex cases be required to hold a college degree); Strier supra note 179. 181.   See, e.g., In re Japanese Elec. Prods Antitrust Litig., 631 F.2d 1069, 1084 (3rd Cir. 1980, (denying right to jury in complex litigation); Bernstein v. Universal Pictures, 79 F.R.D. 59 (S.D. N.Y, 1978) (same); But see In re U.S. Financial Securities Litig., 609 F.2d 411 (9th Cir. 1979) (holding that there is no complexity exception to the Seventh Amendment); see also Ross v. Bernhard 396 U.S. 531, 538 n. 10 (noting that in determining whether an issue was of a legal nature and therefore jury triable, courts should consider “the practical abilities and limitations of juries”); Note, The Right to a Jury Trial in Complex Civil Litigation, 92 HARV. L. REV 898 (1979). 182.   28 U.S.C. § 1861. The act states that “it is the policy of the United States that all litigants in federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross-section of the community.” This right was apparently extended to the states by Taylor v. Louisiana, 419 U.S. 522, 528 (1975), at least in regard to criminal cases. But cf. United States v. Potter 552 F.2d 901, 905 (9th Cir. 1977) (holding that “the less educated” are not a “cognizable group” entitled to the constitutional protections); United States v. Butera, 420 F.2d 564, 571 (1st. Cir 1970) (indicating that the “less educated” are a distinctive group). 183.   See, e.g., Batson v. Kentucky, 476 U.S. 79 (1986) (a black defendant may challenge prosecutors’ use of peremptory challenges against racial minorities); Taylor v. Louisiana, 419 U.S. 522 (1975) (banning exclusion of women as a class from jury service). 184.   Moore v. New York, 333 U.S. 565, 570 (1948). The New York elite jury panel practice had previously been upheld by the Court in Fay v. New York, 332 U.S. 261 (1946). As late as 1967, 60 percent of federal courts still relied heavily on blue ribbon juries (results of a 1967 survey of federal courts cited in JEFFREY ABRAMSON, WE, THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY 99 (1994). Juries have historically played a more critical role in America than in other nations, including England. In colonial days, the colonists relied on the jury to restrain governmental excesses, as in the Peter Zenger trial, and juries played an important role in keeping the judicial branch independent. In the 19th century, they were an important counterforce to probusiness judges. For an overview discussion of the historical role of American juries, see Stephan Landsman, The History and Objectives of the Civil Jury System, in Verdict, supra note 179 at 22. See also, LEONARD W. LEVY, THE PALLADIUM OF JUSTICE; ORIGINS OF TRIAL BY JURY (1999). De Toqueville also noted the important role juries play in training citizens in the democratic virtues:

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Achieving High Educational Standards For All: Conference Summary     It teaches men to practice equity; every man learns to judge his neighbor as he would himself be judged. And this is especially true of the jury in civil causes; for while the number of persons who have reason to apprehend a criminal prosecution is small, everyone is liable to have a lawsuit. . . . It invests each citizen with a kind of magistry; it makes them all feel the duties which they are bound to discharge towards society and the part which they take in its government. By obliging men to turn their attention to affairs of their own, it rubs off that private selfishness which is the rust of society. DE TOCQUEVILLE, supra note 158 at 295. 185.   See, e.g., R. Lempert, Civil Juries and Complex Cases: Taking Stock After 12 Years, in VERDICT supra note 179; Steven A. Saltzburg, Improving the Quality of Jury Decision-Making, in VERDICT, supra note 179 at 341, Barbara Allen Babcock, Jury Service and Community Representation, in VERDICT, supra note 179 at 460. In a 1989 survey, 58 percent of federal judges and 66 percent of state court judges disagreed with the proposition that “in complex civil cases, there should be some minimum level of education or qualifications to avoid jurors who cannot understand the case.” Louis Harris & Associates, Inc., Judges’ Opinions on Procedural Issues: A Survey of State and Federal Trial Judges Who Spend at Least Half Their Time on General Civil Cases, 69 B.U. L. REV. 731, 747 (1989). 186.   HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 149 (2d ed., 1971). Kalven and Zeisel’s study was based on questionnaires concerning a sample of approximately 3,500 criminal jury trials conducted in the mid-1950s. Among other things, the researchers asked presiding judges how they would have decided cases and found that the actual verdicts reached by the juries corresponded to the judges’ views in 78 percent of the cases. Id. at 63. Judge-jury disagreements tended to be on issues of community values and not on factual issues. Id. at 116; see also, JOHN GUINTHER, THE JURY IN AMERICA 208-209 (1988) (stating that heterogenous juries recognize and offset each others’ biases). 187.   Strier, supra note 179 at 55; See notes 178-182, supra.

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