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
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
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
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
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
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
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,
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.36McInnis’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
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
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
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.
ADEQUACY AND STANDARDS-BASED REFORM
The Standards-Based Reform Movement
In the mid-1980s a slew of commission reports had warned of a “rising tide of mediocrity”59 in American education that was undermining the nation’s ability to compete in the global economy. Comparative international assessments revealed poor performance by American students, especially in science and mathematics,60 and U.S. Department of Education assessments indicated that few American students “show the capacity for complex reasoning and problem solving.”61
The first response to these reports was the enactment in most states of extensive reforms imposing more rigorous academic requirements. For example, between 1980 and 1986, 45 states increased their requirements for earning a standard high school diploma.62 It soon became clear, however, that simply raising requirements, without clarifying systemic goals and providing resources and techniques for reaching those goals, would not be effective. Consequently, commencing with the 1989 National Education Summit convened by President Bush and attended by all 50 governors, the nation’s governors, business leaders, and educators began to work with the federal government to articulate specific national academic goals.63 Continued focus on the need for comprehensive, effective reforms geared to specific goals led to enactment of the federal Goals 2000 act,64 to an increasing emphasis on thoroughgoing standards and assessments in other federal laws and regulations,65 and to the development of an extensive state-level standards-based approach to reform. Because education remains primarily a state and local responsibility in the United States, and most of the federal laws and regulations are geared to promoting the development of standards at the state rather than the national level, the state standards-based reform movement has, in recent years, become the primary arena for these reform initiatives.
Standards-based reform is built around substantive content standards in English, mathematics, social studies, and other major subject areas. These content standards are usually set at sufficiently high cognitive levels to meet the competitive standards of the global economy, and they are premised on the assumption that virtually all students can meet these high expectations, if given sufficient opportunities and resources.66 Once the content standards have been established, every other aspect of the education system—including teacher training, teacher certification, curriculum frameworks, textbooks and other instructional materials, and student assessments—is revamped to conform to these standards. The aim is to create a seamless web of teacher preparation, curriculum implementation, and student testing, all coming together to create a coherent system
that will result in significant improvements in achievement for all students.67
Adequacy’s Appeal to the Courts
Standards-based reform substantially enhanced the fledgling educational adequacy notions alluded to in Rodriguez and the other early fiscal equity cases. “Adequate education” was no longer a vague notion that could be assumed almost in passing to describe any state education system. The concept now had substantive content, and its underlying message was that most state education systems—and certainly school districts that served predominantly poor and minority students—were probably below, and not above, the level of substantive expectations.
Standards-based reform also put into focus the fundamental goals and purposes of the nation’s system of public education. In the judicial arena, it inspired increased attention to the intent of the 18- and 19-century drafters of the clauses in most state constitutions that established a public education system and to the contemporary significance of these provisions. In addition, the new state standards provided the courts with practical tools for developing judicially manageable approaches for implementing effective remedies.
Not surprisingly, therefore, the marked trend toward plaintiff victories in the challenges to state systems for financing public education since 1989 can be directly correlated to a greater reliance by plaintiffs in these cases on claims of a denial of basic educational opportunities guaranteed by the applicable state constitution, in contrast to the earlier practice of pleading equal protection claims based on disparities in the level of education funding. Specifically, 17 of the 18 plaintiff victories in the past 11 years have involved substantial or partial adequacy considerations.68 Moreover, even most of the state courts that have denied relief to plaintiffs seeking to invalidate state education finance systems have indicated that the result might have been otherwise if they had raised educational adequacy rather than classical “equity” claims.69
Adequacy has become the predominant theme of the recent wave of state court decisions because the adequacy approach resolves many of the legal problems that had arisen in the early fiscal equity cases and because it provides the courts with judicially manageable standards for implementing effective remedies. As a matter of legal doctrine, adequacy avoids the slippery slope problem that concerned the U.S. Supreme Court in Rodriguez.70 Invalidating a state education finance system on the basis of the state constitution’s education clause establishes no direct precedent for other areas of social policy reform, as might be the case with a claim grounded in equal protection. Moreover, adequacy does not threaten the
concept of local control of education, the main rationale for most court decisions that had held for defendants in the past, because it does not necessarily undermine the prerogative of local communities to set their own tax rates and “because locals would remain free to augment their programs above th[e] state-mandated minimum.”71 To the extent that the emphasis on statewide standards is inconsistent with local control, those centralizing tendencies were already created by the regulatory framework of the standards-based reform movement.
Adequacy also tends to invoke less political resistance at the remedial stage because rather than raising fears of “leveling down” educational opportunities currently available to affluent students, it gives promise of “leveling up” academic expectations for all other students. Although standards-based reforms would most dramatically improve the performance of the lowest achieving students, the reforms are comprehensive and intended to provide benefits to almost all students. Instead of threatening to shift money from rich districts to poor districts, therefore, adequacy offers the possibility of increasing the size of the pie for all.
The appeal of the adequacy approach is reflected in the emerging consensus among the courts, the other branches of government and— sometimes—the public-at-large72 that all students should be provided a reasonable opportunity to obtain an “adequate” education. This consensus is reflected in the recent report of a Task Force of the National Conference of State Legislatures, which stated that “state policy makers and the courts should apply the test of ‘adequacy’ as a primary criterion in examining the effectiveness of any existing or proposed state school finance system.”73 The task force then set forth basic principles for building an adequate education system that emphasized (1) articulating “clear and measurable educational goals, or objectives,” (2) identifying “the conditions and tools that . . . provide . . . every student a reasonable opportunity to achieve expected educational goals or objectives,” and (3) ensuring that “sufficient funding is made available and used to establish and maintain these conditions and tools.”74
THE CONSTITUTIONAL CONCEPT OF ADEQUACY
Despite the widespread support for the general concept of adequacy, however, there has been much uncertainty about precisely how such an adequate education should be defined—or how it should be achieved.75 In the early stages of the adequacy movement the focus was on clarifying student entitlements in relation to gross denials of educational opportunities and bringing to the fore the fallacy of the assumption in Rodriguez and many of the early state cases that all or almost all students were receiving an adequate education. As Peter Enrich has noted, “In many states, the
conditions in the worst off school are so poor and the resources available to them so meager that the courts can reasonably be asked to find a dereliction of the state’s educational obligations without the need to articulate or apply a determinate standard of adequacy.”76 Now, however, as courts and state legislators and state education departments are increasingly facing the realities of actually implementing adequacy standards, the need to focus on substantive definitions of adequacy and effective methods for funding and implementing them has come to the fore.77 It has become increasingly clear that “the right to an adequate education . . . is meaningless without a workable, and hence enforceable, standard to measure adequacy.”78
Specific definitions of education adequacy are, of course, created by particular state constitutional provisions, statutes, and regulations, which vary from state to state. Nevertheless, a growing number of judicial interpretations of adequacy concepts in state constitutions—forged at times through a creative dialogue with state legislatures and state education departments—has resulted in recent years in an emerging consensus on a core constitutional concept of adequacy, based on general principles that establish the parameters for legislative and executive actions. This section provides an overview of the major court decisions dealing with adequacy definitions and sets forth the specific elements of this core constitutional concept.
Education Adequacy Clauses in State Constitutions
The education clauses of almost all of the state constitutions require the establishment of a “system of free common schools,” and through such a system to provide students with a “thorough and efficient” education, “an adequate public education,”79 or an “ample” education.80 These provisions generally were incorporated into the state constitutions as part of the common school movement of the mid-19th century, which created statewide systems for public education and attempted to inculcate democratic values by bringing together under one roof students from all classes and all ethnic backgrounds.81 Compulsory schooling, which became prevalent in most states by the beginning of the 20th century, added an additional rationale for the emphasis on education in the state constitutions.82
The Early Cases
Although the major wave of state court adequacy decisions has occurred over the past decade, a few state courts began to articulate adequacy concepts right after the U.S. Supreme Court’s ruling in Rodriguez.
While most court decisions at the time were focused on equal protection precepts, the highest courts of three states—New Jersey, Washington, and West Virginia—relied on the state constitution’s adequacy clauses to strike down the state education finance systems.
The New Jersey Supreme Court based its 1973 ruling in Robinson v. Cahill83 on the constitution’s “thorough and efficient” education clause. The court defined the constitutional requirement as “that educational opportunity which is needed in the contemporary setting to equip a child for his role as a citizen and as a competitor in the labor market.”84 It recounted the history of the thorough and efficient clause in the context of a 19th century concern for ensuring that a free public education be extended to all students in the state in order to secure “the common rights of all.”85
The Washington Supreme Court also defined the state’s constitutional duty to “make ample provision for the education of all children”86 in terms of the “educational opportunities needed in the contemporary setting to equip children for their role as citizens and as potential competitors in today’s market as well as in the marketplace of ideas.”87 West Virginia’s analysis of the purpose of its state constitution’s “thorough and efficient” clause was similar: it defined the core adequacy requirement in terms of preparation for “useful and happy occupations, recreation and citizenship.”88
In sum, then, the three state supreme courts that first attempted to define adequacy in the early years articulated a similar concept of “adequate education,” drawn from basic notions of a citizen’s role in a democracy and the obligations of the state’s compulsory education system to prepare the child for competitive employment. These early attempts to ground funding reform litigations in the adequacy clauses of the state constitutions, however, did not prove fully successful. The New Jersey Supreme Court upheld “on its face” the Public School Education Act of 1975, which articulated general goals for a “thorough and efficient education,” but delegated the development of actual standards and assessments to the local school districts and the state commissioner of education.89 Years later, finding that the quality of education in poorer urban districts was significantly inferior to other school districts in the state, the court held that “as applied” to the 28 poorest urban districts, the act was unconstitutional.90 The West Virginia courts issued very detailed guidelines91 and standards,92 which were, however, largely ignored by the legislature.93 The Washington Supreme Court remanded to the legislature the responsibility for defining “a basic education” without providing specific guidelines on how to do so.94 The Basic Education Act passed by the Washington legislature in 197795 initially was quite promising, but not being tied to any substantive adequacy goals, it failed to take account of
changing needs and developments. Within a decade it had become clear that the new system was not meeting the educational requirements of the state’s neediest children.96
The Recent Decisions
The difficulties experienced by the New Jersey, Washington, and West Virginia supreme courts in implementing their decrees undoubtedly discouraged other state courts from focusing on their constitution’s education clause. It was not until 1989—a decade after the last of these initial attempts—that any state supreme court again considered the concept of an adequate education. The first to do so was the Kentucky Supreme Court in Rose v. Council for Better Education.97 The Kentucky case was decided the same year as the first National Education Summit, and the decision clearly reflects the influence of the standards-based reform environment.
Although Rose had been brought on behalf of poor school districts seeking more equitable funding for their students, the Kentucky Supreme Court went further and invalidated the entire state system of education, because it was “inadequate and well below the national effort.”98 The court then went on to hold that an “efficient” education is one that has as its goal the development in each and every child of the following seven capacities:
sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization;
sufficient knowledge of economic, social and political systems to enable the student to make informed choices;
sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation;
sufficient self-knowledge and knowledge of his or her mental and physical wellness;
sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage;
sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and
sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.99
Thus, the Kentucky court went beyond the earlier New Jersey and Washington courts in articulating the types of basic skills that students
would need to develop in order to participate effectively as citizens in a democratic society and to be prepared to compete in the contemporary economy. In contrast to the West Virginia court, however, it did not describe the skills or the manner in which they should be developed in explicit detail. In essence, the court outlined the goals for a standards-based education system and then left to the legislative and executive branches its further development and implementation.100
In formulating these specific educational goals, the Kentucky court did not draw solely on previous judicial precedents or legal sources. Extensive expert testimony and a posttrial brief filed by a citizens’ education advocacy group, the Prichard Committee, had brought to the trial judge’s attention the significant national initiatives in education reform, including the emphasis on educational standards. In fact, after issuing his liability decision, the trial court judge stayed his decision on the appropriate remedy for six months. During that time, a select committee he had appointed held five hearings around the state—one of which was attended by the governor and all of which were covered extensively by the press— and then enumerated five student outcomes that it believed would constitute an adequate education.101 The select committee’s recommendations were substantially adopted by the trial court, and their key elements were also included in the final decision of the state Supreme Court.
The Kentucky court’s formulation of the goals of an adequate education system aptly reflected the essential aims of the developing state standards-based reform movement. The Rose decision can, in essence, be viewed as the starting point in what has become a significant dialogue among the public, the courts, and the legislature on standards-based reform. It articulated the basic goals of a standards-based reform system, but left it to the legislative and executive branches to determine the specific structure and content of an “efficient” education system. The Kentucky Education Reform Act enacted by the legislature to comply with the court order has become a national model for implementing standards-based reforms.102
The Kentucky Supreme Court’s statement of educational goals has been directly adopted as the operative definition of adequacy by two other state supreme courts,103 and it has served as the acknowledged inspiration for substantive definitions of constitutional definitions of adequacy by other courts. For example, citing Rose, the Supreme Court of North Carolina has defined the constitutional concept of a “sound basic education” in the following terms:
[A] “sound basic education” is one that will provide the student with at least: (1) sufficient ability to read, write, and speak the English language and a sufficient knowledge of fundamental mathematics and physical science to enable the student to function in a complex and rapidly chang
ing society; (2) sufficient fundamental knowledge of geography, history, and basic economic and political systems to enable the student to make informed choices with regard to issues that affect the student personally or affect the student’s community, state, and nation; (3) sufficient academic and vocational skills to enable the student to successfully engage in post-secondary education or vocational training; and (4) sufficient academic and vocational skills to enable the student to compete on an equal basis with others in further formal education or gainful employment in contemporary society.104
In recent years, the state courts have begun to focus even more directly on the relationship between the newly adopted state academic standards and constitutional requirements. The Idaho Supreme Court, for example, reviewed the existing state educational standards, approved them, and directly incorporated them into its constitutional definition, thereby making their effective implementation the hallmark of constitutional compliance. Thus, the court stated, in defining the requirements for a “thorough” education, that:
Balancing our constitutional duty to define the meaning of the thoroughness requirement of art. 9 § 1 . . . with the political difficulties of the task has been made simpler for this Court because the executive branch of government has already promulgated educational standards pursuant to the legislature’s directive. . . .We have examined the standards and now hold that, under art.9, s. 1 [of the constitution] the requirements for school facilities, instructional programs and textbooks, and transportation systems as contained in those regulations presently in effect, are consistent with our view of thoroughness.105
Similarly, in Edgewood Independent School District v. Kirby, the Texas Supreme Court held in 1995 that the state’s standards-based accountability system met constitutional adequacy requirements.106 In New Hampshire, the state supreme court rejected an adequacy definition promulgated by the state education department, which had been upheld by the lower court, holding that it “is the legislature’s obligation, not that of individual members of the board of education, to establish educational standards that comply with constitutional requirements.”107 It then pointed to the seven specific criteria articulated by the Kentucky Supreme Court as guidelines to the legislature for defining educational adequacy.108
In 1997, the New Jersey Supreme Court upheld a set of content standards that, it noted, had been adopted by the New Jersey legislature consistent with the national trend “in favor of a standards-based approach to the improvement of public education.”109 Although it concluded that the standards “are facially adequate as a reasonable legislative definition of a constitutional thorough and efficient education,”110 the court never
theless also found that the funding system and the funding levels provided to implement the standards were insufficient to provide a thorough and efficient education to students in the poor urban districts.111
In New York, a trial court, under remand directions from the state Court of Appeals to gather evidence on the meaning of the constitutional right to “the opportunity for a sound basic education, ”112 closely analyzed the extensive set of learning standards that had been issued by the state’s Board of Regents over the course of a lengthy seven-month trial. Although indicating that a constitutional standard cannot be synonymous with a specific set of state regulations,113 the court nevertheless equated the standards’ core, high-level cognitive skills with the requirements for a sound basic education. Specifically, it held that certain of the standards, such as the graduation-level standard for English language arts, which, among other things, requires students to demonstrate the ability to “discover relationships, concepts and generalizations, [and] . . . interpret and analyze complex informational texts”114 falls well within the constitutional requirements for a sound basic education.115 Other standards, like the graduation-level science requirements in physics, which, inter alia, call on students to “compare energy relationships within an atom’s nucleus to those outside the nucleus,”116 the court deemed to exceed a sound basic education.117
A similar conclusion was reached in a recent North Carolina ruling, which also was based on a detailed analysis of the new state standards. There, the court held that the state standards were “sufficient to provide North Carolina students with the opportunity for a sound basic education if properly implemented in the classroom…”.118 Because the standards included areas such as art, physical education, and second languages, which went beyond the list of core academic skills that constitute a sound basic education, the court further held that the current North Carolina standards “are more than sufficient.”119
In CFE v. State, the New York court explicitly rejected defendants’ argument that reading, writing, and mathematics skills at an 8th to 9th grade level—the former state competency standard that the regents were replacing with their more demanding learning standards—would meet constitutional requirements.120 Instead, the court held that sound basic education requires the “foundational skills that students need to become productive citizens capable of civic engagement and sustaining competitive employment.”121 Civic engagement the court defined to include acting as a knowledgeable voter who has the “intellectual tools to evaluate complex issues, such as campaign finance reform, tax policy, and global warming” and serving as a capable juror who may be called on to “determine questions of fact concerning DNA evidence, statistical analyses, and
Clearly, what is occurring in the recent educational adequacy cases is “ a multi-faceted dialogue between state courts and legislatures”125 on the critical question of how to define an adequate education. These dialogues take a variety of forms. A number of courts have, for example, placed greater emphasis on providing explicit guidelines to the legislature on how an adequate education system should be developed. Thus, the Ohio Supreme Court declared in broad terms that children must be “educated adequately so that they are able to participate fully in society.”126 It then declared the current school foundation program unconstitutional and directed the state legislature to “create an entirely new school financing system” in accordance with certain basic guidelines laid down by the court. These included eliminating the emphasis on the local property tax and ensuring that the system include an appropriate “student-teacher ratio, . . . and sufficient computers”127 as well as “facilities in good repair and the supplies, materials and funds necessary to maintain these facilities in a safe manner.”128
The Wyoming Supreme Court went even further in providing substantive instructions to the legislature on how it should go about defining the specific elements of an adequate education. It held that:
To fulfill the constitutional command . . . the legislature must state and describe what a “proper education” is for a Wyoming child. The constitution requires that it be the best that we can do. The legislature, in fulfilling its constitutional duty, must define and specify what that is. Trial testimony indicated aspects of a quality education will include:
Small schools, small class size, low student/teacher ratios, textbooks, low student/personal computer ratios.
Integrated, substantially uniform substantive curriculum.
Ample, appropriate provision for at-risk students, special problem students, talented students.
Setting of meaningful standards for course content and knowledge attainment intended to achieve the legislative goal of equipping all students for entry to the University of Wyoming and Wyoming Community Colleges or which will achieve the other purposes of education.
Timely and meaningful assessment of all students’ progress in core curriculum and core skills.129
Finally, an especially interesting variation of the interbranch dialogue was the recent enactment of a new adequacy clause to the Florida Constitution. In 1996, the Florida Supreme Court, in a close plurality decision,
had determined that the prior constitutional language did not provide any “judicially discoverable and manageable standards” for determining adequacy.130 Two years later, the voters, through a 71 percent favorable referendum vote, amended the state constitution to include the following provision, which was largely influenced by the adequacy perspective of the dissenting and concurring judges in the previous case:131
The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require.132
The Emerging Core Constitutional Concept
Constitutional doctrine in the state courts regarding student rights to an adequate education clearly has resulted in recent years in a growing convergence on certain core concepts. This constitutional core emphasizes that an adequate education must (1) prepare students to be citizens and economic participants in a democratic society; (2) relate to contemporary, not archaic educational needs; (3) be pegged to a “more than a minimal” level; and (4) focus on opportunity, rather than outcome.
As discussed above, most state constitution education clauses were written in the 19th century and reflect the democratic ideals of the common school movement, as well as the employment preparation orientation of the compulsory education movement. In interpreting the adequacy requirements of these clauses, the courts have, therefore, been strongly influenced by this original intent. Thus, there is widespread agreement that an adequate system of education is one that “ensures that a child is equipped to participate in political affairs and compete with his or her peers in the labor market.”133
The overwhelming majority of state highest courts that have defined an adequate education have used some variation of this central focus on preparing students to be effective citizens and competitive participants in the economy. For example, the Vermont Supreme Court, in its recent decision in Brigham v. State, 692 A.2 at 680, declared that the state’s right to
education clause “guarantees political and civil rights” and preparation “to live in today’s global marketplace.” Similarly, the Wisconsin Supreme Court, although finding for defendants in its recent fiscal equity decision, stated that “a sound basic education is one that will equip students for their roles as citizens and enable them to succeed economically and personally.”134
Relation to Contemporary Needs
Although grounded in 19th century democracy and work preparation concepts, the court decisions emphasize the need to relate these concepts to contemporary needs. The constitutional text and the constitutional precedents establish basic parameters for a concept of adequacy that is substantive yet evolving. Courts have specifically held that “that which may have been ‘ample’ in 1889 may be wholly unsuited for children confronted with contemporary demands.”135 For example, although a high school education was not an attribute of a thorough and efficient education in 1895, it clearly is today.136 As the Wyoming Supreme Court put it, “the definition of a proper education is not static and necessarily will change.”137
In this context, the courts’ implicit dialogue with the other branches of government on standards-based reform concepts has been particularly instructive. The standards-based reforms have made clear that to be effective citizens and productive workers in contemporary society, students need to develop higher-order cognitive skills. The constitutional requirements set forth in many of the recent cases reflect an awareness of the need to prepare students to compete in the global society of the 21st century.138 Courts have specifically stated that contemporary adequacy standards must be pegged well above a 19th century reading, writing, and arithmetic level.139 In essence, the emerging constitutional concept of adequacy is a prudent judgment concerning the basic educational opportunities that a child will need to take his or her place as a functioning adult in contemporary society. As the level of educational skills necessary to participate as a citizen and as a wage-earner in society rise, expectations for an adequate education will also necessarily rise.
More Than a Minimal Level
Consistent with their understanding of contemporary needs as articulated by the standards-based reform movement, the courts deciding recent adequacy cases have implicitly rejected the “minimalist standard of adequacy set in Rodriguez” and have called instead for an education
system that is at more than a minimal level.140 This “high minimum approach focuses on what would be needed to assure that all children have access to those educational opportunities that are necessary to gain a level of learning and skills that are now required, say, to obtain a good job in our increasingly technologically complex society and to participate effectively in our ever more complicated political process.”141
The policy statement of the 1996 National Education Summit, endorsed by President Clinton, 41 governors and 48 leaders of major American corporations, specifically described the type of cognitive skills students need for the contemporary job market:
In addition to basic skills, all individuals must be able to think their way through the workday, analyzing problems, proposing solutions, communicating, working collaboratively and managing resources such as time and materials.
* * * *
Today’s economy demands that all high school graduates, whether they are continuing their education or are moving directly into the workforce, have higher levels of skills and knowledge.142
Accordingly, some of the cases have specified that an adequate education must include, in addition to traditional reading and mathematical skills, knowledge of the physical sciences and “a fundamental knowledge of economic, social, and political systems, and of history and governmental processes [and] academic and vocational skills.”143 The repeated emphasis in the liability findings in these cases is on the relative inability of poor districts to provide their students with the type of appropriate contemporary education that is available to residents in the affluent districts:
High-wealth districts are able to provide for their students broader educational experiences including more extensive curricula, more up-to-date technological equipment, better libraries and library personnel, teacher aides, counseling services, lower student-teacher ratios, better facilities, parental involvement programs, and drop-out prevention programs.144
The Montana Supreme Court was explicit in articulating the implications of these comparisons. After contrasting the offerings in a number of poor and rich districts, it stated that “the wealthier school districts are not funding frills.”145 In short, it is clear that “the concept of an adequate education emerging from state courts invalidating school finance systems goes well beyond a basic or minimum educational program that was considered the acceptable standard two decades ago.”146 The Florida constitutional referendum, reflecting these contemporary trends, specifically defined an adequate education as one that “allows students to obtain a high quality education.”147
Opportunity, Not Outcome
State educational standards provide courts with useful tools for ensuring that all students are actually provided the level of education guaranteed by the state constitution. In articulating the core requirements of their state education clauses, the judges’ thinking has clearly been informed by the contemporary needs and values that have impelled the national standards-based reform movement.148 At the remedial stage, state standards provide courts with effective tools for assessing the extent to which educational opportunities are being made available to meet the needs of all students. In contrast to the McInnis courts’ perplexity about how to define and deal with educational needs,149 courts in the recent adequacy cases have felt confident in asserting that students in high need, low resource districts are not currently receiving a constitutionally adequate education because their education “fall[s] short of the very educational standards that the state . . . has determined are basic to providing its school children with minimally adequate educational opportunities.”150
In formulating remedial criteria, the courts do not, however, apply the state standards in a wooden way. Thus, although many state accountability systems, especially in states that have adopted “high-stakes” testing programs, emphasize student achievement scores as the basic determinants of whether students are obtaining an appropriate education, the constitutional criterion for determining the level of educational services that must be provided for an adequate education tends to emphasize educational opportunity, not educational results.151 Output measures are considered important guideposts for determining whether an education system is functioning well and whether further scrutiny is warranted, but they are not seen as constituent elements of a constitutional definition of adequacy.152
Courts tend to enforce students’ rights to an adequate education, therefore, by seeking to ensure the availability of essential resources, such as decent facilities, a safe environment, qualified teachers, and up-to-date textbooks,153 or by providing feasible additional support for students with special needs or at risk of educational failure that will give all students the opportunity to develop necessary academic skills.154 They do not, however, guarantee that all students will fully meet demanding state standards or that unlimited resources must be made available to overcome all impediments to equal educational outcomes.
The emerging core constitutional concept of adequacy has enhanced the courts’ ability to frame workable remedies and to enter into dialogues with state legislatures and state education departments on methods for actually providing a meaningful opportunity for an adequate education to all students. Although evidence presented in many of these cases has
demonstrated to the courts’ satisfaction that educational resources, if effectively utilized, can result in impressive learning gains by at-risk students, the fact remains that these demonstrations have not yet been brought to scale because sufficient resources have never been made available in large urban school districts or other systems with large numbers of such students. Restructuring state education finance systems and obtaining sufficient resources to implement standards-based reforms and workable accountability systems remain formidable challenges. The critical importance for the future of American education—and for the future of American democracy—of fully meeting these challenges and actually providing the opportunity for an adequate education to all students is the subject of the concluding section of this paper.
The previous section has described the emerging core constitutional concept of adequacy in terms of providing all students a reasonable opportunity, at “more than a minimal level,” to become effective citizens and economic competitors, in accordance with contemporary needs. On first impression, this emerging constitutional concept may seem rather unexceptional; much of it appears to be merely restating in contemporary terms historical understandings regarding the links between education and democracy. Thomas Jefferson pointed out early in the nation’s history that “some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence,”155 and de Toqueville recognized almost 150 years ago that “in the United States the instruction of the people powerfully contributes to the support of the democratic republic.”156
This historical vision was, however, actually quite myopic. The link between democracy and an educated electorate recognized by Jefferson and de Toqueville was articulated at a time when the scope of public discussion was limited and when both the right to vote and access to education were limited largely to upper-income white males. Throughout most of America’s history, women, blacks and other minorities, and lower-class workers who did not own property were excluded from the franchise and from exercising most of the other rights of citizenship.157
As discussed above, the U.S. Supreme Court acknowledged in Rodriguez that the nation’s democracy “depends on an informed electorate: a voter cannot cast his ballot intelligently unless his reading skills and thought processes have been adequately developed.”158 This concept of an informed electorate composed of citizens who intelligently consider and analyze issues before voting was, however, a relatively recent phe
nomenon; it emerged during the Progressive Era at the beginning of the 20th century. Michael Schudson, after analyzing the history of American civic life from colonial days to the present, concluded that the kind of knowledge the electorate required has, in fact changed dramatically over time:
In an age of gentlemen, the citizen’s relatively rare entrances into public discussion or controversy could be guided by his knowledge of social position; in the era of rule by majorities, the citizens’ voting could be led by the enthusiasm and rhetoric of parties and their most active partisans; in the era of experts and bureaucracies, the citizens had increasingly to learn to trust their own canvass of newspapers, interest groups, parties and other sources of knowledge.159
In short, the combination of a vastly expanded electorate encompassing individuals of both genders and of all classes, races, and ethnic groups, with expectations that a citizen’s role is to rationally analyze issues and make individual electoral decisions, is a recent development, the implications of which have yet to be fully explored.
An Adequate Education for Citizenship
Even though democratic theory in the United States in recent decades has extolled the concept of the informed citizen,160 there has, in fact, been little discussion, let alone analysis, of the specific skills individuals need to carry out the functions of such a citizen. The standards-based reform movement has now put this question into focus, and, at the same time, it has provided specific tools for determining the extent to which the schools are actually producing students who can effectively carry out their presumed societal responsibilities.
For example, the Council on Curriculum and Assessment, which developed the Board of Regents’ learning standards for New York State,161 specifically considered the analytical skills that would allow students to read the kinds of texts that they would encounter in carrying out their duties as citizens, equip them to participate and deliberate in civic discussions, and provide them specific knowledge about the functioning of the U.S. governmental system.162 The goals for a constitutionally acceptable education system articulated by the highest courts in Kentucky, Massachusetts, New Hampshire, and North Carolina similarly included specific references to developing “sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation.”163
With these new state standards, courts are now in a position to probe unanalyzed past assumptions about students’ preparation to function as
productive citizens. The trial court in CFE v. State of New York did exactly that during the seven-month trial that concluded in July 2000. In order to develop a trial record that would fully evaluate the Court of Appeals’ “template” concept that a sound basic education must provide the skills students need to “function productively as civic participants capable of voting and serving on a jury,”164 Justice Leland DeGrasse first instructed the parties to have their expert witnesses analyze a charter referendum proposal that was actually on the ballot in New York City at the time the trial was in progress. The specific question posed was whether graduates of New York high schools would have the skills needed to comprehend that document. The witnesses were also asked to conduct a similar analysis of the jury charges and of certain documents put into evidence in two complex civil cases that had recently been tried in state and federal courts.
Linda Darling-Hammond, a professor from Teachers College, Columbia University, was the primary expert witness for the plaintiffs on these issues. She first closely reviewed the charter revision proposal and identified the specific reading and analytical skills that an individual would need in order to understand that document. She then related these skills to particular standards set forth in the Regents’ learning standards in English language arts, social studies, and mathematics and sciences.165
Darling-Hammond also described the types of skills a juror would need to comprehend and apply concepts like “the preponderance of the evidence” in terms of being able to “understand how to weigh the evidence, how to decide what the preponderance of the evidence might mean, what kind of testimony is credible and how to use the evidence in drawing an opinion.”166 The specific types of skills needed to undertake this complex reasoning process are also cultivated by the learning standards, according to Darling-Hammond.167 She further explained how such skills as the ability to analyze statistical tables and graphs, understand economic concepts like “opportunity costs,” and comprehend scientific studies are developed by the mathematics, science, and social studies standards.168 In sum, the types of cognitive skills imparted by the Regents’ learning standards are, according to Darling-Hammond, precisely the types of skills that the New York Court of Appeals had previously indicated that citizens need in order to perform adequately as jurors.169
The defendants’ primary expert on the ballot comprehension issue was Christine Rossell, a political science professor from Boston University. Rossell did not testify about the specific skills a student would need to be an effective voter. Instead, she introduced polling data showing that the vast majority of American voters obtain their information from radio and television news and make up their minds on how to vote for candidates and propositions before they enter the voting booth.170 Her implicit argument was that comprehending radio and television news does not
require higher-level cognitive skills, and since most voters make up their minds without actually reading ballot propositions, the level of skills necessary to comprehend such documents is not a significant issue.
Herbert Walberg, an education professor from the University of Illinois-Chicago, also testified for the defendants in the CFE trial. He undertook a computerized “readability analysis” of various newspaper articles dealing with electoral issues and of some of the jury documents that had been analyzed by the plaintiffs’ experts. He concluded that only a 7th or 8th grade level of reading skills was needed to comprehend these materials.171 Walberg also indicated that dialogue among members of the jury can substitute for a lack of understanding on the part of some of the individual jurors.172
Overall, then, the implied premise of the defendants’ position was that citizens do not actually need to function at a high level of skill, and that they need not be capable of comprehending complex written material, so long as the subjects dealt with in the material are regularly discussed in the mass media, or so long as they can obtain assistance from other citizens in carrying out their civic responsibilities. Justice De Grasse’s decision resoundingly rejected this position. He held:
An engaged, capable voter needs the intellectual tools to evaluate complex issues, such as campaign finance reform, tax policy, and global warming, to name only a few. Ballot propositions in New York City, such as the charter reform proposal that was on the ballot in November 1999, can require a close reading and a familiarity with the structure of local government.
Similarly, a capable and productive citizen doesn’t simply show up for jury service. Rather she is capable of serving impartially on trials that may require learning unfamiliar facts and concepts and new ways to communicate and reach decisions with her fellow jurors. To be sure, the jury is in some respects an anti-elitist institution where life experience and practical intelligence can be more important than formal education. Nonetheless, jurors may be called on to decide complex matters that require the verbal, reasoning, math, science, and socialization skills that should be imparted in public schools. Jurors today must determine questions of fact concerning DNA evidence, statistical analyses, and convoluted financial fraud, to name only three topics.173
Although society may have unreflectively accepted a wide gap between its democratic ideal and the actual functioning level of its citizens participants in the past, now that the issue has come to the fore, it is difficult to conceive of our society knowingly perpetuating a state of affairs in which voters cannot comprehend the ballot materials about which they are voting and jurors cannot understand legal instructions or major evidentiary submissions in the cases they are deciding. In order to func
tion productively in today’s complex world, citizens need a broad range of cognitive skills that will allow them to function capably and knowledgeably, not only as voters and jurors, but also in petitioning their representatives, asserting their rights as individuals, engaging in deliberations with other citizens, and otherwise taking part in the broad range of interchanges and relationships involved in the concept of civic engagement.174
Implications of the Skills Gap
The focus on the citizenship and employment purposes of public education in state constitutional provisions combined with the analytic tools provided by state standards have now dramatically put the spotlight on the jarring gap between the skills students need to function effectively as productive civic participants and the actual level at which large numbers of high school graduates perform. This gap has two basic consequences: (1) large numbers of American citizens currently do not vote or they prefer not to serve on juries because they feel incapable of carrying out these civic functions175; and (2) large numbers are voting or serving inappropriately and inadequately. Both of these possibilities are philosophically and politically unacceptable. Accordingly, the notion that all students can learn at a reasonably high cognitive level, which is the premise of standards-based education reform, must also become a political imperative for a well-functioning contemporary democratic society.
The possibility of actually excluding those with inadequate cognitive skills from civic responsibilities has, in fact been seriously debated in recent years as a growing number of complex litigations in areas like product liability, antitrust, and environmental regulation have raised critical questions regarding the capacity of juries to deal with the problems posed by contemporary litigation. Serious issues have arisen concerning the ability of contemporary juries to understand complex statistical, scientific, and technical data,176 and there is widespread concern about their capability to understand legal instructions.177
In 1979, the former chief justice of the U.S. Supreme Court, Warren E. Burger, stated that contemporary jurors are not capable of comprehending technical evidence in complex cases.178 He said that “Jefferson would be appalled at the prospect of a dozen of his yeomen and artisans trying to cope with some of today’s complex litigation in a trial lasting many weeks or months.”179 A fiery debate then ensued among legal scholars and federal judges on whether juries in complex cases should be limited to college graduates,180 or whether the Seventh Amendment right to a trial by jury should be reinterpreted to exclude complex cases.181
This call for elite juries actually amounted to a return to the historical practice of convening blue ribbon juries in important cases that had been
prevalent throughout the United States prior to the passage of the federal Jury Selection and Service Act in 1968,182 and a series of Supreme Court cases that banned practices that led to the systematic exclusion of women and minorities from jury panels.183 The incompatibility of such blue ribbon panels with basic democratic principles was scathingly set forth by U.S. Supreme Court Justice Frank Murphy, dissenting in a 1948 case that upheld the verdict of a blue ribbon jury operating in accordance with a New York state statute—since repealed—that permitted such elite jury panels:
The vice lies in the very concept of “blue ribbon” panels—the systematic and intentional exclusion of all but the “best” or the most learned or intelligent of the general jurors. Such panels are completely at war with the democratic theory of our jury system, a theory formulated out of the experience of generations. One is constitutionally entitled to be judged by a fair sampling of all one’s neighbors who are qualified, not merely those with superior intelligence or learning. . . . Any method that permits only the “best” of these to be selected opens the way to grave abuses. The jury is then in danger of losing its democratic flavor and becoming the instrument of the select few.184
The outcome of the scholarly and judicial debate on the use of juries in complex cases has largely reaffirmed the importance of jurors being representative of the broad community and has rejected the proposals for elite juries.185 There remain, however, persistent concerns about the ability of juries to function effectively, especially in complex civil cases. Although empirical studies of jury functioning in the past had shown that “the jury does by and large understand the facts and get the case straight,”186 many contemporary studies “buttress the contention of lay jury incompetence in complex cases.”187
The recent literature on jury functioning, therefore, bears out Darling-Hammond’s testimony in the CFE litigation that students need to develop higher-level cognitive skills if they are to function productively as civic participants in today’s complex society. The widespread rejection of the suggestion that blue ribbon juries be reinstated in complex cases makes clear that in this age of broadened civil rights’ assertion, restriction of the franchise and denial of the right to a jury representing a full cross-section of the community do not constitute viable options. The nation can no longer tolerate a state of affairs in which the graduates of many high schools lack the cognitive skills to be civically engaged and to sustain competitive employment in the 21st century. In the end, then, the stated goal of the standards-based reform movement cannot be merely aspirational. There really is no alternative to actual fulfillment of the vision that today the schools must ensure that virtually all students meet high expectations and develop higher-level cognitive skills.
The author would like to thank Shelly Burtt, Molly Hunter, Jeff Metzler, David Sciarra, and Deborah Verstegen for their thoughtful comments and assistance with this chapter. The research for this chapter was made possible (in part) by grants from the Ford Foundation and the Carnegie Corporation of New York. The statements made and views expressed are solely the responsibility of the author.