Educational Adequacy and the Courts: The Promise and Problems of Moving to a New Paradigm
Paul A. Minorini and Stephen D. Sugarman
In 1989, the Kentucky Supreme Court declared the entire state system of public elementary and secondary education unconstitutional and held that all Kentucky schoolchildren had a constitutional right to an adequate education. The decision resulted in a dramatic overhaul of the state's entire public school system, and sparked what many scholars have called the "adequacy movement" in courts, statehouses, and education policy circles around the country (Underwood, 1995; Clune, 1993).
That movement has spread rapidly. Since 1989, courts in Alabama, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Ohio, Tennessee, and Wyoming also have ruled that their state constitutions' education clauses guarantee students an adequate level of educational opportunities that should allow them to achieve certain desired educational outcomes. In addition, claimants in Arizona have won an adequacy case concerning capital costs, and adequacy-based lawsuits are now pending in Louisiana, Minnesota, Pennsylvania, and South Carolina. This new wave of adequacy litigation has not been successful in all states where it has been brought, however. High courts in Florida, Illinois, and Rhode Island recently rejected adequacy-based claims, in part because they viewed such matters as inappropriate for judicial resolution.
Adequacy issues did not come to occupy their current position in courts and statehouses overnight. Over the last two and a half decades, the terms of school finance debates in many legal and policy circles have slowly shifted. In the courts, that shift has been away from traditional "fiscal equity" cases (concerned with inequalities in school district per-pupil property tax bases and the per-pupil spending inequalities they yield), toward arguments focused on ensuring that all
students have access to educational resources and opportunities adequate to achieve desired educational outcomes (Underwood, 1995; Heise, 1995; Clune, 1993). In the education policy context, the shift has led to efforts to define what educational outcomes all students should attain and what resources are necessary to permit all students to achieve those outcomes (Clune, 1993).
In this chapter we start by going back to the early litigation efforts to eliminate racial segregation in public education because we believe that this history sheds interesting light on the school finance litigation that was to follow. We then turn to the legal theories underlying the ultimately unsuccessful legal challenges to school finance inequalities that were brought under the federal constitution. After explaining how that failure turned into something of a success in cases brought in state courts under state constitutions, we explore various reasons why activists and analysts in the mid and late 1980s nonetheless began to look for a new legal approach—one rooted not so much in comparing the poor education some children obtain with others, but rather in comparing the inadequate education many children receive as judged by some absolute standard. We then trace the rapid success of the new adequacy theory in courts, followed by a more sobering look at the mixed success of this approach in obtaining legislative compliance with judicial decrees. We close with an appraisal of the education adequacy movement to date and its prospects for the future.
Early Race-Based Cases
In the era before the U.S. Supreme Court decided Brown v. Board of Education, 347 U.S. 483 (1954), black claimants successfully attacked several state educational arrangements as constitutionally inadequate. In those earlier years, the so-called ''separate but equal" standard, which had been established by Plessy v. Ferguson, 163 U.S. 537 (1896), applied to race-based treatment; this meant that blacks could be forced to accept separate treatment by the government, so long as it was equal treatment. The litigation strategy in the first half of the twentieth century was to show that the segregated schooling provided for blacks was inferior to what was provided for whites and hence in violation of the "equal protection of the law" requirement of the Fourteenth Amendment to the U.S. Constitution.
These early race discrimination cases began with claims that black schools simply did not parallel the white institutions. In Cummings v. Board of Education, 175 U.S. 528 (1899), the plaintiffs' objection was that the district had ceased operation of the black high school but continued to support high school education for white students. (For reasons that seem quite unconvincing 100 years later, the Court found in favor of the school district.) In Missouri ex rel Gaines v. Canada, 305 U.S. 337 (1938), the complaint was that Missouri had no black law school but had a law school for whites. The Court ruled that the state's offer to pay the
plaintiffs' out-of-state tuition was an inadequate substitute. Gaines was a significant first step in the line of decisions leading to Brown.
Anticipating similar litigation, Texas established a black law school, but in Sweatt v. Painter, 339 U.S. 629 (1950), the Court found it to be unequal to the University of Texas's white law school. And in McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950), the Court ruled that it was inadequate for the state university to admit black graduate students, but require them to sit at separate desks adjoining the classrooms and separate tables outside the library reading room, and to eat at separate times in the school cafeteria.
In the course of these decisions, the Court's emphasis moved away from a comparison of conventionally measured educational resources to an emphasis on "intangibles." In Sweatt, for example, the Court said:
In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law review and similar activities, the University of Texas Law School is superior. What is more important, the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school. Such qualities, to name but a few, include reputation of the faculty … influence of the alumni, standing in the community, traditions and prestige. [Moreover, the law school] cannot be effective in isolation from the individuals and institutions with which the law interacts …
Then, in Brown itself, the Court directly confronted the question of whether black elementary and high school students were unconstitutionally denied equal educational opportunities even though "the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other 'tangible' factors." Noting first that "education is perhaps the most important function of state and local governments," the Court then relied on psychological studies to support its conclusion that to separate the black school children "solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." On that basis the Court declared that "in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."
Put generally, then, although the test of equality throughout this series of cases was always applied to educational input differentials, over time the inputs that were compared increasingly included those beyond mere financial resources and the things money buys directly. In other words, the Court became increasingly concerned not only with the formal educational offering, but also with what the students were likely to gain from their educational experience, which included, among other things, interaction with other students.
Although it took the adoption of the Civil Rights Act of 1964 to bring about the beginnings of substantial compliance with Brown, once the U.S. Supreme
Court firmly rejected Southern states' neutral-sounding evasion strategies in cases like Green v. County School Board, 391 U.S. 430 (1968), and Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), the dismantling of the official regime of school segregation was finally assured.
But the elimination of schools that were legally open exclusively to white or to black students hardly eliminated racial isolation in America's public schools. As the legal battles moved to the North and the West, it became clear in the 1970s that the Court had not meant that all racially identifiable educational facilities were unconstitutional. Rather, the justices would only strike down regimes that intentionally separated black and white students (Keyes v. School District No. 1, 413 U.S. 189, 1973). To be sure, in some Northern and Western school districts, even though segregation had not been the official rule, it could be shown that specific school board decisions (such as where to build new schools) had actually been racially motivated and hence illegal. But if school assignment was based upon neighborhood attendance zones that had been drawn without reference to race, and neighborhoods "happened" to contain concentrations of white or black pupils, the resulting racially isolated schools were not illegal. (Of course, there might have been illegal segregation in the housing market, but that, it turned out, generally had to be attacked in housing cases seeking housing remedies.)
This distinction between de jure and de facto school segregation flowed primarily from the Court's doctrinal interpretation of the Fourteenth Amendment. But it also reflected a subtler interpretation of the "feelings of inferiority" emphasized in Brown. It was one thing to say that black children suffered those feelings when they were told by the law that they could not attend school with whites. But it would have been indelicate, to say the least, to contend that they suffered such feelings merely by having black, rather than white, schoolmates.
In the North and West, where one tended to find large urban school districts surrounded by many small suburban school districts, the distinction between de jure and de facto segregation was especially important. Black advocates there faced a difficult legal battle to prove past illegal segregation within the urban center. Moreover, what if more and more whites simply moved to suburbs that were primarily white (assuming one could not prove, as the plaintiffs failed to prove in the Detroit case, that the creation of the suburban school districts was itself intentionally, racially discriminatory; see generally Milliken v. Bradley, 418 U.S. 717, 1974)? Southern states tended to have county-wide school districts that were increasingly under order to desegregate. But even there, what if whites moved in large numbers to adjacent counties that historically had few blacks? The Fourteenth Amendment forbade deliberate governmental discrimination on the basis of race; the intentions of individual families as they made their residential choices, however, were outside of the Constitution's reach.
As this scenario (often termed "white flight") was being played out, some people in the civil rights movement began asking other questions. If whites could escape from desegregated city schools by living in outlying areas that were all or
largely white, was it legal for them to have "better" schools out there if they were willing to heavily tax their local property tax base to achieve that end? And what about the all-white, or mostly-white, schools within urban school districts in the North and West that weren't going to be ordered to desegregate? Was it legal for those schools to be "better" than the schools in the black neighborhoods?
In the mid-to-late 1960s, some wondered whether advocates for black school children should go back to the "separate but equal" doctrine. That strategy, however, seemed problematic for several reasons. First, if racial imbalance in the student bodies could not be shown to be the result of intentional governmental discrimination, would one be able to show that differences in school quality were intentionally created on the basis of race? (Without such a showing, de facto quality differences seemed no more subject to a racial challenge than were de facto assignment schemes.) Second, despite the special place that had been awarded to education in Brown, the Court (and the 1964 Civil Rights Act) soon moved to make intentional racial discrimination generally illegal. In other words, the doctrine of "separate but equal" was broadly overturned—having been made just as inapplicable to public golf courses as to public schooling. Finally, there was the fact that, as one looked around the state, one saw that the apparently excellent public schools that white children attended in some suburbs also seemed markedly superior to public schools elsewhere in the region that also largely enrolled white pupils. Perhaps school-quality differences were not ultimately a race question after all.
These puzzles and concerns forced scholars and activists committed to the idea of equality of educational opportunity for all children to study why it was that some children, both white and black, seemed to be receiving a decidedly inferior education as compared with what other children (mostly white) were receiving. And so, in the late 1960s, while the fight for school desegregation was still in full swing, it was first argued that courts should get involved in the issue of the distribution of school resources quite apart from any question of racial discrimination.
Early Legal Thinking About School Finance Inequalities
Although in the prior paragraphs describing raced-based litigation we have sometimes phrased the complaints of black students in terms of the "inadequacy" of their educational opportunities, school finance scholars today would probably categorize these lawsuits as "equity" cases. This is because the gist of the complaint was that, although the plaintiffs (blacks) were entitled to treatment that was comparable to what the comparison group (whites) received, they were not receiving it. In other words, "equity" cases are about getting worse treatment than someone else. "Adequacy" cases, as well will see, seem instead to be centrally
about getting worse treatment than one is entitled to as determined by reference to some absolute standard and not in comparison with others.
Keeping this distinction in mind, the early advocates for non-race-based judicial intervention into the way school resources were distributed also clearly cast their complaints in equity terms. One group was unfairly getting less than (a worse education than) the comparison group. Moreover, as with the early race cases, the initial attack began primarily with a focus on "tangible" input resources, basically, dollars.
But because the comparison groups were not to be whites and blacks, advocates had to appeal to a different sort of "equal treatment" norm. To some, the basic unfairness arose from the fact that public school finance was really a highly varied, locally funded system (albeit with some state financial assistance thrown in). It was quickly evident to anyone who studied how school finance worked that, because public education was in practice predominantly a local matter, some districts raised and spent a lot of money, while others raised and spent little. As a result, school spending varied enormously from place to place around the state. It also was evident to the casual viewer that many of the high spenders were wealthy suburbs, and that many of the low spenders were communities filled with people of modest means.
If one looked within school districts, sometimes spending per pupil also varied substantially from school to school. Since schools were not revenue raisers, these inequalities arose for other reasons. But because these inequalities were less structural and less easy to document, and because they appeared, on the whole, to be smaller than the inter-district inequalities, the early approaches emphasized district-to-district differences.
If one took a wider view, it was also clear that public school spending per pupil varied enormously from state to state. But this was promptly ignored by the legal scholars, because those differences seemed self-evidently not the result of Congressional decisions that could be attacked under the U.S. Constitution.
The early critics thought that a proper school finance system would be a statewide system that wasn't plagued by local variation. Hence, their objection could most easily be stated in terms of geographical discrimination within the state: children living elsewhere, who were otherwise just like the complaining group, were getting a better education than the complaining group (at least as measured by dollar spending differences) for no reason other than the vagaries of the local financing of education (Wise, 1968; Horowitz and Neitring, 1968).
As a federal constitutional matter, however, it was hard to see why this sort of inequality was impermissible. Where in the federal constitution could the principle be found that educational quality (or spending) had to be roughly equal everywhere around the state? After all, roads, police forces, public transport services, parks, and the like also varied greatly from place to place, and no one at the time seemed to think that was unconstitutional. Wasn't local variation, including
variation in public education, a fundamental feature of American history in the same way that variation from state to state has been?
Those seeking a uniform statewide school finance system tended to argue that education was different, noting (as we have seen) that the dismantling of racial segregation in America was litigated around schools and that the U.S. Supreme Court in Brown had emphasized the fundamental importance of education. The problem was that those racial desegregation cases had combined education with discrimination on the basis of race. Geographical discrimination just didn't have the same constitutional anchor. Moreover, as noted above, soon the Court also struck down racially segregated swimming pools, train stations, and so on. These later decisions suggested that, at the core, Brown was better understood to be primarily about racial equality, a doctrine that was not limited to education.
One could point out that public education was specially aimed at children, but the Supreme Court had given no indication that age (or youth) was to be treated as a category deserving of special judicial attention in the way race (and later gender) was. Moreover, the unequal treatment in education was not against youth (or on the basis of age), but rather among youth.
In Private Wealth and Public Education (1970), Coons et al. cast their attack on state school finance systems in a different manner. The constitutional norm they invoked did not insist upon a uniform statewide system. To the contrary, they acknowledged certain possible advantages of a fair locally based system that states might wish to embrace. For example, these authors were not offended by arrangements that produced better schools in local communities that in some sense cared more about education—communities such as those that were willing to spend their money on better schools instead of better parks, or that were willing to impose higher taxes on themselves in order to have both better schools and better parks.
The problem, according to the Coons team, was that the existing school finance systems in most states very clearly favored those communities that had more property tax wealth per pupil to finance their schools. Hence the equity case that the Coons team constructed made the comparison groups rich and poor school districts. What was unfair, according to them, was that something so important as education was distributed on the basis of wealth and poverty (albeit wealth and poverty of communities, rather than individuals).
The Coons team hoped that a successful constitutional theory could be created out of the Supreme Court's already-expressed concern about wealth discrimination in the provision of other fundamentally important matters—like the right to vote, the right to obtain a divorce, or the right to mount a criminal appeal. Like education, these other rights were not clearly included in the U.S. Constitution, yet they too were understood to be essential features of the sort of democracy we like to say we have. And when states discriminated against poor people in the provision of these rights (by imposing a financial burden on obtaining
access to them) the Court had stepped in (Griffin v. Illinois, 351 U.S. 12, 1956, and Harper v. Virginia Bd. of Elections, 383 U.S. 663, 1966). Moreover, the Court had also recently acted on behalf of poor people who had exercised their right to travel (from one state to another) but were then denied welfare in their new state of residence (Shapiro v. Thompson, 394 U.S. 618, 1969). If restricting the access of the poor to welfare based upon where they lived was illegal, then perhaps the provision of inferior education to the poor based upon where they lived would also be deemed illegal.
The legal theory advanced by the Coons team initially had great success, as both the California Supreme Court and a three-judge federal court panel in Texas held that it was unconstitutional for the state to base school spending on local wealth differences. But when the Texas case reached the U.S. Supreme Court, the wealth discrimination theory was rejected on a vote of 5 to 4 because the Court majority did not see it as a case of discrimination against poor people (San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 1973). After all, although the children who were harmed lived in poor districts, they themselves might not have been poor (and some poor children lived in wealthy districts). Moreover, whatever the importance of education, it was by no means being denied to the claimants. Some public education was available to all, and the Court expressed skepticism about whether the extras bought by those districts with more money permitted them to buy anything that was constitutionally significant.
Perhaps the Court would have decided differently if the states charged families tuition to attend public schools and the children of individual poor families were excluded from public education altogether. The Supreme Court hinted at this possibility in footnote 60 of the Rodriguez decision. Later, the Court ruled in favor of "excluded" children in Plyer v. Doe, 457 U.S. 202 (1982), but not in Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988). But since local communities everywhere in Texas had pitched in to provide at least some minimum education for everyone, the Court refused to embrace the analogy to those earlier cases about voting, divorce, criminal appeals, and travel that involved outright denials. The defeat in Rodriguez spelled the end of federal constitutional litigation with respect to school finance.
But this by no means was the end of school finance litigation. Rather, the venue changed to state courts and, more importantly, the relevant document became the individual state constitution instead of the federal Constitution (McUsic, 1991).
School Finance Litigation And State Constitutions
Just because school finance arrangements are valid under the federal constitution does not mean that they are necessarily valid under state constitutions. To
be sure, over the course of the last few decades, legal advocates have generally sought to involve the federal judiciary and the federal constitution in their battles to reform what they have considered to be unfair institutional arrangements. The wrongdoers are generally seen to be state or local governments, and state court judges have not generally been viewed as likely allies in the fight. If nothing else, state judges are often thought to be more cautious because they are politically more vulnerable if they take unpopular stands and because they are understandably more deferential to their co-branches of state government. Indeed, in the early days of the civil rights movement, state courts were viewed as an important part of the problem.
Nonetheless, judicial reform of public schools could be a politically popular thing to do, especially in recent times when our public education system is often criticized as failing on many dimensions. Moreover, as we will see, education has a special place in state constitutions.
In the early years, advocates seemed basically inclined to argue for the Coons team's theory in state court. After all, state constitutions contained their own equal protection clauses, and state judges were not bound to interpret them in the same way as the U.S. Supreme Court had interpreted the Fourteenth Amendment. This line of attack was bolstered enormously by the California Supreme Court, which had initially embraced the Coons team's approach primarily under the federal constitution (Serrano v. Priest, 5 Cal.3d 584, 1971—Serrano I), but which, after Rodriguez, announced that it was sticking with its decision, now squarely resting it on the equal protection guarantee of the California Constitution, which had merited only passing mention in the Court's first decision (Serrano v. Priest, 18 Cal.3d 728, 1976—Serrano II).
In important respects, from 1971 through 1989 the main battle was over how widely advocates could get the courts to apply the wealth discrimination theory that had been adopted in California. Important equity-based victories were won in several states and continue to be won even in very recent years, for example, in Texas and Vermont (see Minorini and Sugarman, Chapter 2 in this volume). At the same time, however, many cases were lost as state court judges, in effect, found persuasive the view of the U.S. Supreme Court majority in Rodriguez and interpreted their own constitutions in the same manner.
The Shift Away from Wealth Discrimination
Starting in 1989, a new legal theory generally called "educational adequacy" moved to center stage in school finance litigation. Before turning to what courts are currently doing in that area, however, it is important to explain the change in thinking of at least some school finance reformers that led to the shift in litigation and judicial focus. Put generally, there was a growing dissatisfaction with the outcomes of school finance "equity" cases, even where they were successful.
First, many advocates began to emphasize a number of issues that the earlier writings had acknowledged but had put aside: (1) some districts (especially
urban districts) faced higher costs than others (for example, the higher cost of living in cities required paying higher wages to employees and higher prices for goods); (2) some districts (especially urban districts) had relatively more pupils with exceptional educational needs and so, in some sense, needed more money in order to educate them; and (3) some districts (especially urban districts) had to provide so many other local services that their tax base was not really as available to be drawn on for education as would appear from a simple calculation of local district capacity (e.g., assessed value per pupil). Note that advocates concerned about all three of these factors were centrally interested in the education of poor, inner-city students who were increasingly non-white. In an important sense, these advocates began to doubt whether even successful school finance litigation was doing enough for the pupils they cared most about.
These concerns might be accommodated under the wealth discrimination theory. For example, by adopting the notion of the "weighted pupil" (with extra weight given where the pupil was needier or costs were greater), a district could be deemed to have the equivalent of more pupils; and by adjusting for "municipal overburden" a district could be deemed to have less wealth. Together, these adjustments could reveal a district to be far poorer (and hence entitled to more state financial assistance) than suggested by a simple calculation of its assessed value per student headcount. But making these adjustments (how large should they be?) would get courts into far more perilous territory than was initially promised by the wealth discrimination theory. Moreover, the reality was that these sorts of adjustments would especially benefit urban districts that in many places were already above average both in wealth (if simply measured) and in spending per pupil (if still well below the wealthy suburbs). Hence, these adjustments implied a dramatic reconsideration of which districts were most harmed by the traditional system—which under the simple wealth discrimination theory were the straightforwardly very low-wealth/low-spending districts. In short, those most concerned about poor, minority children in urban centers had reason to cast around for a new approach.
Second, as explained earlier, the Coons team constructed its legal theory around the idea that local variation per se was not impermissible. Of course, the state could have a uniform statewide system if it wished, but that was not to be legally mandated under the wealth discrimination theory. What had to go were local spending differences based on local wealth differences. Although it might have been possible to radically redraw school district boundaries so as to make all the new districts roughly equally wealthy, this was politically unlikely and unnecessary in the view of the Coons team. Instead, through the way it constructed its grant-in-aid program, the state could make each district constructively equally wealthy—essentially by matching the local money raised by poor districts at a much higher rate than that raised by rich districts. They called this option "district power equalizing." District power equalizing would permit local spending
differences based upon different tastes, as reflected in differences in local willingness to impose taxes.
Yet, district power equalizing as a legal remedy created dissatisfaction of two highly conflicting sorts. On the one hand, in several states it seemed clear that the courts didn't really accept the implications of the wealth discrimination theory. For them, geographic differences in spending were the central objection. Wealth differences were emphasized as the sources of geographic inequalities, but the desired remedy was to eliminate the latter, not merely the former. Perhaps a new legal theory would more logically link the constitutional wrong with the sought-after remedy.
On the other hand, different observers slowly began to realize that to implement the Coons team's district power equalizing solution in response to a victorious school finance case was politically treacherous. This is because district power equalizing typically requires, in a vivid way, taking money from the rich and giving it to the poor. Of course, this is the nature of redistributive taxing and spending policies generally. But the implementation of district power equalizing was viewed as taking local raised property taxes directly away from those districts that had wanted to spend those precise dollars on their children and handing them over to poorer districts to spend on their children (which is, of course, exactly what the wealth discrimination theory required).
Beyond this political difficulty (and inconsistent with the view of those who were pressing hard for ending geographic differences in spending), many reformers began to lose their enthusiasm for even trying to curb relatively higher spending by the rich. Some adopted the view that the rich cannot really be stopped anyway. They can always pull their children out of public schools and put them into pricey private schools. They can add on to what is spent by the public schools—either after school, or on weekends, or in the summer with private lessons, tutoring, and so on. They can raise money to supplement local public schools through local, private, educational foundations that were emerging in many places.
To those who continued to believe in the principle underlying the wealth discrimination theory, these examples were beside the point. Districts should still be prevented from using public powers to take advantage of the greater property wealth that the state had unfairly assigned to their community to tax. (Allowing districts to use this power was also clearly offensive to those, noted above, who sought to transform wealth discrimination cases into a mandate to eliminate geographic differences in spending.) But for others, it began to seem a waste of time and effort to try to prevent the richer districts from spending extra local money from local taxes. This too implied the desirability of a new legal strategy.
Third, the California experience with the wealth discrimination theory unnerved many people, again leading them to search for alternative theories. Soon after the Serrano case, California voters passed two initiatives that radically restricted local and state taxing and spending powers. The measure restricting
property taxes made it essential, as a practical matter, for the state to take over a much greater share of the school finance load, and this in turn yielded a much greater equalization of spending than had existed before Serrano. Yet at the same time these two initiatives sharply curtailed the size of government in California, and rather rapidly California dropped from being one of the states that spent most generously on public schools to one of the lowest spenders.
Research has shown that in other states where courts have ordered school finance reform, school spending has gone up (Evans et al., 1997). Essentially, the judiciary has forced a leveling up of the lower-spending districts. Yet California wound up leveling down. In California, it is generally understood that those taxing and spending initiatives would have passed anyway, because they were responses to forces altogether unrelated to the Serrano case (rapidly rising property values that local governments used simply as a way to collect more taxes, and a stubborn Governor Jerry Brown who refused to use a large state surplus to provide tax relief). On this view, California is an outlier that should be ignored when projecting the likely consequences of successful ''equity" litigation over school finance.
Nonetheless, it has been argued in the scholarly literature that opposition to the remedy that was called for by the school finance litigation was what gave the initiative sponsors the key support they needed (Fischel, 1989). The theory is that traditional supporters of public education in high-wealth districts turned against the system when they saw that they were no longer going to be able to use it to their advantage as they had in the past. Whether or not the Serrano decision was in fact responsible for the passage of the tax and spending control initiatives, these California developments served as a warning: the equality norm is consistent with "equally lousy."
Fourth, because of the ascendancy of other forces, during the 1980s national attention began to turn away from the problem of inequalities in school spending to the shortcomings of public education from top to bottom. Probably the key event was the publication of A Nation at Risk (National Commission on Excellence in Education, 1983), and the key message that most people took away from that document was that America's school children were not learning enough—not enough as compared with youngsters in other countries, and not enough for what was becoming needed and surely would soon be widely needed by our contemporary economy. Public schools had to do better by nearly all of our children. Productivity importantly replaced inequality as the salient reform objective.
By 1989, the nation's governors and the federal government began to articulate the goal of high academic standards for all children (see Berne and Stiefel, chapter 1 of this volume; Heise, 1995; Cohen, 1995). While the idea of "education standards" was not new, that "standards" movement hit the national stage with great fanfare at the end of the 1980s and has maintained its presence through the present day. In support of the movement, many states began to design new
student achievement tests intended to measure whether students were actually attaining the desired standards. These developments created an atmosphere in which at least some policymakers believed that all children could reach high academic standards if provided with an appropriate level of resources, and that assessments could measure when that had occurred. From this vantage point, an equity-based legal theory that at best promised the plaintiffs schooling comparable to that of other students who also were not learning enough became less attractive.
Finally, the changing landscape of school desegregation litigation has reinforced the desirability of finding a new school finance legal theory. Through the late 1970s and the 1980s, many federal judges were confronted with lawsuits in which the plaintiffs had proven past intentional discrimination on the basis of race, but, because there were relatively few white children left in the school district, the remedy of racially integrating the student bodies of the district's schools appeared largely unattainable. Sometimes the judges sought voluntary metropolitan integration solutions that typically involved black students transferring out to surrounding schools (e.g., St. Louis). Sometimes the judges sought to entice whites back into inner-city schools by making them more attractive through the infusion of new resources (e.g., Kansas City). But often the courts seemed to focus primarily on ordering improvements in the educational enterprise—such as teacher quality, curriculum, facilities, and other support staff—that were in many respects independent of student assignment-related desegregation goals (e.g., Detroit and Kansas City; Milliken v. Bradley, 433 U.S. 267, 1977 and its progeny). It was, for many de jure discrimination cases, something of a return to the notion of "separate but equal" after all.
Developments in federal school desegregation jurisprudence in the early 1990s, however, suggest that the litigation era reaching back to Brown v. Board of Education is now drawing to a close. Beginning with the Supreme Court's decisions in Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991) and Freeman v. Pitts, 503 U.S. 467 (1992), and culminating with the Court's decision in Missouri v. Jenkins, 515 U.S. 1139 (1995), advocates for poor, inner-city minority communities began to see the doors to federal courts close. These recent Supreme Court decisions essentially relaxed the standard that applied to school districts which had previously discriminated, had implemented a judicially approved remedy, and were now seeking to end federal court involvement in their affairs. But curtailing continuing federal court jurisdiction over a district that had once acted illegally opens the way for the district also to abandon some of the special efforts that had been imposed on it—both programs aimed explicitly at achieving racially balanced student bodies and those aimed more at improving the educational opportunities offered in the often heavily minority schools.
So, if federal desegregation litigation will soon no longer serve as a primary tool for trying to improve educational opportunities for inner-city poor and minority
youths, some of their advocates too have concluded that school finance litigation might be a promising substitute (Tatel, 1992). But, as noted earlier, for needy children attending high-cost, urban schools, school finance litigation would be far more attractive if it could be cast more widely than the conventional wealth discrimination approach.
The Embrace of Adequacy
These forces together have brought many school finance reformers around to a new view of what states should do. Rather than the over "Robin Hood" solution promised by school finance equity litigation, perhaps it would be wiser to direct the main reform effort at getting the states to assure what we believe is best termed a "high-minimum quality education for all."
As spelled out by William Clune (who abandoned the Coons team for this new approach) and others, a state-guaranteed high-minimum is most often what is meant by an "adequate" education (Clune, 1994; see Chapter 2 in this volume). In funding this high-minimum, the system would specifically take into account the varying needs of different types of pupils. It would also recognize that individual schools (or districts) face differing costs. Beyond those based on differences in the cost of living, the high-minimum approach would probably also recognize that some communities will have to pay more to attract equally good teachers to teach their needier and lower-achieving students. It would probably also recognize the benefit some students gain from having higher-achieving classmates and other intangibles that enable their school to provide a good education, and in turn would somehow compensate for the lack of those advantages in other schools. In other words, the 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.
In this respect, the adequacy approach decidedly reflects a shift of the sort we saw in the history of the race cases, where the Supreme Court became increasingly concerned with what the real educational opportunity was, and not merely the easily measured input factors. But as noted above, an expanded equity paradigm, at least in principle, could also accommodate these same adjustments.
What is most distinctive about the adequacy approach is that, unlike the traditional school finance cases, it does not rest on a norm of equal treatment. Indeed, the adequacy cases aren't about equality at all, except in the sense that all pupils are equally entitled to at least a high-minimum. In other words, adequacy is not a matter of comparing spending on the complaining group with spending on others. It is rather about spending what is needed (and its focus is in some respects more on the school or the pupil than on the district).
Notice, however, that although educational adequacy is more about outputs than inputs, nevertheless, in the minds of many of its supporters, the achievement of adequacy does not appear to be ultimately judged by actual educational outcomes. It is still an opportunity concept, and as such, compliance with the adequacy requirement is ultimately still a matter of inputs, albeit now more broadly conceived. In other words, at the level of the moral claim, educational adequacy seems to be about what fairly ought to be provided, leaving it in the end to the student to take advantage of that offering.
But if it is neither a matter of comparing inputs with those provided to other pupils nor a matter of everyone's actual outcomes, then how does one decide what inputs an adequate education requires? Would assuring an adequate education for all students cost more than is now spent on elementary and secondary public education, or less? Would it require a great deal more redistribution of money from those living in high-wealth districts than has been required by the equity cases, or less? Just how much extra is to be provided for special needs students and high-cost areas? There are no self-evident answers to these questions.
As we see it, what is "adequate" will come down to a matter of judgment, probably informed by expertise. (There is also an analogy that can be made here to the world of special education, in which each disabled child is now legally guaranteed an "appropriate" education, which, in practice, has tended to amount to what educational experts say will suffice to meet that child's special needs.) Moreover, it seems that in making the judgment about what is fairly required by the educational adequacy requirement, one would want to take into account what outcomes can reasonably be expected from which inputs, even if actually achieving certain outcomes is not required. Indeed, if there are grossly deficient outcomes at present, this may be taken as evidence of inadequate inputs. In these respects, however, the distinction between adequacy as an outcome standard and an input standard becomes blurred.
In any event, because the comparison to be made is with an absolute standard and not in relation to others, most adequacy theorists appear to agree that school districts that can afford to, and choose to do so, ought to be free to offer more than the high-minimum. In this respect as well "adequacy" differs from "equity."
Adequacy as a Legal Requirement?
Do courts have a role to play in trying to achieve educational "adequacy" for all pupils? For the moment the answer is decidedly "Yes." Since 1989 especially, successful state court school finance cases seem to be moving strongly in this very direction (Enrich, 1995).
As a matter of legal doctrine, we hear state courts increasingly saying to their legislatures that the education clause of their state constitution gives the state responsibility for education that it may not simply pass on to local school districts.
Rather, a state system of education is required. That state system, in the most common language of state constitutions, must be "thorough and efficient," and those words are being interpreted by some courts to require what we've been calling "adequacy."
In general, the claimants in educational adequacy cases still tend to be those who live in low-spending districts, although recently many suits have included claims on behalf of larger urban centers that, while at or close to the state average in per-pupil spending, are burdened with educating large percentages and numbers of students living in or near poverty, having limited English proficiency, or otherwise requiring extra educational services.
How have claimants proved that the state has failed to create a system of the sort they claim is constitutionally required? Interestingly enough, an important part of the legal strategy has been to demonstrate that there are large spending and other input differences from place to place—just as in the equity cases. Adequacy plaintiffs also typically point to measures of student performance such as standardized test scores, graduation rates, and the like. Together, this evidence is meant to show that the plaintiffs' schooling opportunities are constitutionally inadequate.
In fact, adequacy cases (like equity cases) usually attack a school finance system that is some version of the "minimum foundation plan" first brought into use in the 1920s. And one basic question is why isn't that "minimum" enough to satisfy the state constitutional command. After all, the foundation plan formula basically assures that each local district has at least some, specified, minimum amount of spending per pupil available to it (provided that it levies the minimum required local tax rate). Beyond that foundation amount, the local districts traditionally can add on out of their own funds if they wish. Recall that under the wealth discrimination theory of the equity cases, the central problem with the foundation plan is the wealth-based local add-ons. But for courts looking for a state "system'' in the face of an adequacy suit, the problem has been with the foundation amount itself.
As the judges ruling in favor of the claimants have seen it, a "thorough and efficient" educational system requires that the amount of funding available to districts be set from the perspective of the state deciding what is actually necessary to fund an "adequate" education. This may mean adopting state educational goals and deciding what is needed to achieve them. It may mean taking into account those pupil-need and cost adjustment factors discussed above. At the least, it means self-consciously deciding how much should be spent to provide the statewide education to which all children are entitled by the state constitution. However this is put, what is clear is that almost nowhere could it plausibly be shown that the actual minimum foundation plan level in effect at the time of the lawsuit had been determined as a result of a genuine statewide appraisal of that sort. Rather, the foundation plan level has almost always been determined by the outcome of state politics, i.e., how much redistribution of state tax revenues could
be achieved in favor of the poorer districts. In this way we can see how state courts may feel themselves comfortably able to announce that a state system of education is both constitutionally required and clearly does not exist.
What would be enough for the state to meet this conception of the constitutional requirement is a far more complicated matter, however. Indeed, that problem may well explain why some state courts have rejected educational adequacy claims, finding, in effect, that the state constitution's education clause creates no judicially determinable and enforceable standard. But many other courts, at least so far, seem undaunted by this prospect—at least not daunted enough to refrain from condemning the system as it stands.
In thinking about what eventually is to be required by the state constitution, one possibility, of course, is that the courts will identify a substantive standard against which the system will be measured. Assume that, as an abstract matter, the standard will be what we have been calling a "high-minimum"—in the sense that most people would agree that considerable education is increasingly required to become a full participant in today's economic and political life. But that is too abstract. What, more precisely, will be the content, inputs, or outcome goals of that high-minimum? Perhaps the courts will look to what their own legislatures already have said in statutes and regulations that spell out what educational outcomes are expected of students at various levels of their education. Certainly the drive for state standards and assessments geared to those standards will suggest this as a plausible option. Fearful that a recalcitrant legislature might try to thwart the court's efforts by, in effect, "dumbing down" the state goals, the judges might instead look to a national consensus as to what sort of education today's youths need for success. Many adequacy decisions that have ticked off a list of educational goals, in effect, tap into the judges' sense of today's collective wisdom on this matter.
But, of course, under any of these approaches this first step would only help identify the goals of the educational system. Still to be decided would be whether the opportunities provided are fairly calculated to permit pupils to reach those goals. This, it seems, would inevitably put the judges in the middle of a debate between "experts" paraded into court by both plaintiffs and defendants.
Yet, just because the experts will disagree does not mean that they can't provide the judges with helpful insights. For example, James Guthrie and Richard Rothstein have developed a thoughtful methodology for identifying an "adequate" education that they have already applied in more than one state. Simply put, they gather school professionals together to discuss and reach consensus on what inputs are needed for an adequate education and then they price those inputs. If, for example, the professionals decide (based upon research or experience) that elementary school class size of 15 is needed, they plug that in. If the professionals decide that if there are so many disadvantaged kids an extra classroom aide is needed, they plug that in. They also try to adjust for differential wage costs and the like from place to place. In this way they can build up to a
total number of dollars that each district (or perhaps even at the level of each school) must have in order to deliver its pupils an adequate education (see Guthrie and Rothstein, Chapter 7 in this volume). (Interestingly enough, once they determine the total per-pupil amount, Guthrie and Rothstein do not insist that schools be required to spend precisely in the way implied by the building blocks that were used in determining the school's total revenue. Instead, schools are to have flexibility in how they use their funds. But they are to be held accountable in some way if the performance of their pupils is not up to par.)
John Augenblick has developed a different approach (Augenblick, 1997). His strategy is to identify the cost structures of districts that are successful. After excluding the outlier districts, both rich and poor, in terms of wealth and per-pupil expenditure, Augenblick scours the remaining districts to see which have been successful in terms of student performance (e.g., 75 percent or more of the pupils meet state minimum competency standards). Then Augenblick looks to see how much was spent per pupil in these successful districts. The basic idea is that if a group of districts with a variety of pupil characteristics can succeed with $X per pupil, then other districts should also be able to do so.
William Duncombe and John Yinger have offered further insights (see Chapter 8 in this volume). They are highly skeptical about whether schools with concentrations of low-income children, especially in urban areas, can realistically succeed with an amount of money that Augenblick's model would provide, and they find arbitrary Guthrie and Rothstein's reliance on the professional model to determine how much extra money those schools should have. Instead, Duncombe and Yinger have developed very sophisticated analytical techniques to determine empirically how much extra money schools (or school districts) should be provided when they face high-cost problems that are beyond their control—like needy pupils and high wage costs. For example, if using the Guthrie and Rothstein approach, it was determined that, say, $6,000 per pupil was needed in an ordinary district or school, the Duncombe and Yinger methodology might then suggest that, say, $12,000 per pupil is needed in a district with a great concentration of low-income children—if those children are to perform, on average, as well as children living in the ordinary district. While these numbers are just hypothetical, it is important to note that Duncombe and Yinger do claim that in New York, for example, many upstate urban communities will need more than twice as much money as New York City suburban schools if they are to have any chance of matching the educational outcomes of those suburbs. Moreover, New York City itself, they say, would need perhaps three times what Scarsdale spends. Given the complexity of the Duncombe and Yinger methodology, many will wonder to what extent they really have taken into account only costs that are beyond the school or district's control and not allowed past spending inefficiencies to determine how much future revenue a school or district ought fairly have.
These examples illustrate the sorts of testimony that might be brought forward by the parties. Of course, these various approaches to determining adequacy
are likely to yield very different results. Guthrie and Rothstein, for example, are talking about providing something like $500 extra per low-income pupil whereas Duncombe and Yinger are talking about more than $5,000 extra for the same pupils—at least where they are schooled among concentrations of disadvantaged children. If the judges are to make a substantive determination of what is adequate, they will somehow have to resolve this dispute.
If this is too daunting, a different possibility is that courts will ultimately impose more of a procedural test on the legislature. For example, did the legislature reasonably (or in good faith) enact something intended to be what can fairly be called a state system? The state might demonstrate this, for example, by showing that it created a commission, called in experts, adopted educational goals, reasonably priced them out, and provided the needed funding. Of course, reasonable people may well differ on just what those goals should be and, even more so, on how much must be spent in support of them. Under the procedural approach, the court would not insist on a single resolution to the substantive issues. Rather, many schemes could pass constitutional muster. The key thing, again, would be whether the legislature engaged in a process that reasonably related the funding of schools to what had been fairly determined to be their students' actual educational needs.
One might have thought that the state constitutional requirement of a state system of education would mean just that—no local option, at least no local spending add-ons out of local wealth. This indeed may be where some state supreme courts are heading (e.g., Wyoming). It is also consistent with the outlook of those, noted earlier, who are quite unsatisfied with the leeway allowed under the wealth discrimination theory for local add-ons (even if they are wealth equalized).
But other state supreme courts have already gone out of their way to reject this restriction. Several recent opinions have either explicitly or implicitly acknowledged that local add-ons from local taxes would be permissible, but only after a true state system had first been established (Claremont v. Governor of New Hampshire, 635 A.2d 1375, N.H. 1997; Leandro v. State of North Carolina, No. 179PA96, 1997; Rose v. Council for Better Education, 790 S.W.2d 186, Ky. 1989). This latter approach is aligned with that version of the "educational adequacy" theory that rejects trying to hold down higher spending by the rich.
Educational Adequacy In The Courts
Adequacy notions first explicitly appeared in school finance litigation in 1976 when the New Jersey Supreme Court in Robinson v. Cahill stated that its state constitution required an education system that allowed all students to become "citizens and competitors in the labor market." Similar language was next found in the Washington Supreme Court's 1978 ruling, which declared aspects of the state's school funding system unconstitutional (Seattle v. State of Washington,
585 P.2d 71, Wash. 1978). The court interpreted the Washington Constitution's education clause as requiring that the state fund schools in a manner that allowed them to "equip our children [to function] as citizens and as potential competitors in today's market as well as in the market place of ideas … to participate intelligently and effectively in our open political system … to exercise their First Amendment freedoms both as sources and receivers of information and … to be able to inquire, to study, to evaluate and to gain maturity and understanding." The court characterized those outcomes as "broad guidelines," noting that ''the effective teaching and opportunities for learning these essential skills … make up [the] minimum of education that is constitutionally required." The court ordered the state to define what constitutes a basic education and to fund it in all districts.
In 1979, the West Virginia Supreme Court took the notion of adequacy a step further (Pauley v. Kelly, 255 S.E.2d 859, W.Va. 1979). Like the New Jersey and Washington courts, the West Virginia Court identified a set of broad goals for a constitutionally adequate education system: "[A] thorough and efficient system of schools … develops, as best the state of education expertise allows, the minds, bodies and social morality of its charges to prepare them for useful and happy occupations, recreation and citizenship, and does so economically." Unlike prior courts, the West Virginia court went on to specify what such an education would accomplish in terms of student outcomes:
Legally recognized elements of this definition are the development in every child to his or her capacity of: (1) literacy; (2) ability to add, subtract, multiply and divide numbers; (3) knowledge of government to the extent that the child will be equipped as a citizen to make informed choices among persons and issues that affect his own governance; (4) self-knowledge and knowledge of his or her total environment to allow the child to intelligently choose life work—to know his or her options; (5) work-training and advanced academic training as the child may intelligently choose; (6) recreational pursuits; (7) interests in all creative arts, such as music, theater, literature, and the visual arts; and (8) social ethics, both behavioral and abstract, to facilitate compatibility with others in this society.
Because procedurally the case arrived in the West Virginia Supreme Court on an appeal from the lower court's dismissal of the action, the court remanded the case back to the trial court for further hearings.
On remand, the lower court declared the state school funding scheme to be inequitable and inadequate, and ordered the legislature to develop a comprehensive plan to bring to the entire education system into constitutional compliance. The trial judge left the design of the plan to the legislature and in 1983 approved the "Master Plan for Education" developed by the legislature and State Department of Education. That plan called for, among other things, the development of standards and curricula geared to those standards, improved facilities, and a revised finance plan.
Fourteen years later, in 1997, a West Virginia lower court ruled that the state had failed to implement all of the requirements of their "Master Plan for Education" (see Minorini and Sugarman, Chapter 2 in this volume), and ordered the state to develop a new plan to bring the system into constitutional compliance in 1998. The court objected especially to the lack of connection between funding levels and actual costs of providing a high-quality education to students in conformity with state education standards.
These early "adequacy" cases were not soon followed with similar decisions elsewhere. Indeed, at the time it was not evident that the courts were really doing anything meaningfully different from what was being ordered in school finance equity cases. This thinking was reinforced in subsequent litigation in New Jersey, where the court appeared to have turned back to a more traditional notion of equity.
But, in 1989, the Kentucky Supreme Court explicitly established educational adequacy as a distinct theory in school finance litigation (Rose v. Council for Better Education, 790 S.W.2d 186, Ky. 1989). In a sweeping decision, the court found that the entire Kentucky system of education violated the mandates of the state constitution, and ordered the state to overhaul the entire system of education to bring it into compliance. In the course of its opinion, the Court emphasized how little Kentucky currently spent for education as compared with neighboring states and in turn how poor was the educational attainment of Kentucky students. While the Court stopped short of ordering specific education reforms, deferring instead to the legislative process in the first instance, it did provide the legislature with broad guidelines about what constitutes an adequate education. Those guidelines defined an adequate education as one that provides students with the opportunity to develop at least the following seven capabilities:
The impact of the Kentucky decision has been felt in many state courts across the country. Since 1989, courts in New Hampshire, Alabama, and Massachusetts have declared their education systems to be constitutionally inadequate, relying specifically on the Kentucky Court's definition of an adequate education when providing guidance to the state legislatures as they craft remedies (Claremont School District v. Gregg, 635 A.2d 1375, N.H. 1997; McDuffy v. Secretary of Education, 615 N.E.2d 516, Mass. 1993; Alabama Coalition for Equity v. Hunt, published as Appendix to Opinion of Justices, 624 So.2d 107, Ala. 1993).
For example, in 1993, the New Hampshire Supreme Court found that the state constitution required the state to create and maintain an adequate education system (Claremont School District v. Gregg, 1993). According to the court, such an education "extends beyond mere reading, writing and arithmetic [and] includes broad educational opportunities needed in today's society to prepare citizens for their role as participants and as potential competitors in today's marketplace of ideas."
That 1993 ruling, however, only reversed a trial court's dismissal of the plaintiffs' action prior to a trial on the merits. Following the court's broad articulation of the constitutional right to an adequate education, the trial court held a lengthy trial, after which it ruled that the standard of adequacy set forth by the high court had been satisfied in all complaining school districts. That trial court decision, however, was soon appealed to the New Hampshire Supreme Court, which, in a December 1997 ruling, again reversed the trial court and found that the state system of financing education was unconstitutional because it resulted in many school districts being unable to offer their children adequate educational opportunities.
In that most recent decision, the court further elaborated on what a constitutionally adequate education must accomplish, adopting the seven factors established by the Kentucky Supreme Court. In addition, however, the New Hampshire court went on to note that:
A constitutionally adequate public education is not a static concept removed from the demands of an evolving world. It is not the needs of the few but the critical requirements of the many that it must address. Mere compliance in the basics—reading, writing, and arithmetic—is insufficient in the waning days of the twentieth century to ensure that this State's public school students are fully integrated into the world around them. A broad exposure to the social, economic, scientific, technological, and political realities of today's society is essential for our students to compete, contribute, and flourish in the twenty-first century.
The New Hampshire court also explicitly recognized that local districts were free to raise local funds to supplement the state-guaranteed high-minimum standard of adequacy.
We emphasize that the fundamental right at issue is the right to a State funded constitutionally adequate public education. It is not the right to horizontal
resource replication from school to school and district to district. The substance of the right may be achieved in different schools possessing, for example, differing library resources, teacher-student ratios, computer software, as well as the myriad tools and techniques that may be employed by those in on-site control of the state's public elementary and secondary school system.
Other decisions in the 1990s also have adopted broad conceptions of what is meant by educational adequacy. In 1993, the Tennessee Supreme Court found that the state constitution required the education system to provide districts with sufficient funds to permit the attainment of certain broadly defined educational outcomes: "The General Assembly shall maintain and support a system of free public schools that provides at least the opportunity to acquire general knowledge, develop the powers of reasoning and judgment, and generally prepare students intellectually for a mature life" (Tennessee Small School Systems v. McWherter, 851 S.W.2d 139, Tenn. 1993). Similarly, in 1994, the Arizona Supreme Court ruled that the state's system for funding school facilities was unconstitutional because certain districts lacked the resources necessary to maintain adequate school buildings (Roosevelt Elementary School District v. Bishop, 877 P.2d 806, Ariz. 1994). That decision, while limited to capital funding, also suggested that similar principles of adequacy might apply to school districts' operating costs.
In 1995, the highest court in New York held that the state is constitutionally obligated to create and maintain an education system that provides children with: "the basic literacy, calculation, and verbal skills necessary to enable [them] to eventually function productively as civic participants capable of voting and serving on a jury … [and] minimally adequate physical facilities and classrooms … to permit children to learn" (Campaign for Fiscal Equity v. State of New York , 86 N.Y.2d 307, N.Y. 1995). And in March 1997, the Ohio Supreme Court ruled that by permitting dramatic deficiencies in facilities, materials and supplies, and class sizes in some of the poorer school districts, the state had violated its constitutional duty to provide students with a "through and efficient" education system (DeRolph v. State, 79 Oh.St.3d 297, 1997). The court's decision did not discuss any outcome standards of adequacy or a minimum threshold of a basic education, but rather simply ruled that the conditions in poor school districts around the state were unacceptable.
Recent adequacy litigation in North Carolina also is significant in several important respects. First, that litigation was filed in 1995 by a coalition of low-wealth school districts that had filed and lost a traditional finance equity battle in the mid-1980s. This recent lawsuit attempts to avoid the precedent of the earlier decision by focusing the court on adequacy issues, as opposed to the comparative fiscal equity issues. In addition, this recent lawsuit was joined by a coalition of relatively high-spending, high-wealth urban school systems, whose claims focused on their inability to serve adequately their high-needs, at-risk student populations.
This suit illustrates the applicability of the adequacy theory to both low-wealth rural districts, as well as high-wealth, high-need urban systems.
The North Carolina Supreme Court ruled in July 1997 that the complaining school systems are entitled to a trial, and that the state constitution does guarantee all schoolchildren a basic, adequate level of educational opportunities. Significantly, the court also ruled that variations in spending that result from local add-ons would be permitted in the system so long as all districts could provide students with the constitutionally guaranteed minimum level of opportunities.
Events in Wyoming over the last decade and a half also have brought the issue of educational adequacy to the political and judicial forefront. In 1980, the Wyoming Supreme Court found that the state education funding system violated the state constitution's equity requirement, noting that "until the equality of financing is achieved, there is no practicable method of achieving the equality of quality" (Washakie v. Herschler, 606 P.2d 310, Wash. 1980). In its 1995 decision (Campbell v. State, 907 P.2d 1238, Wyo. 1995), the court ruled that the legislature's response to the 1980 decision was deficient and ordered the following:
The legislature must first design the best educational system by identifying the "proper" educational package each Wyoming student is entitled to have. … The cost of that educational package must then be determined and the legislature must then take the necessary action to fund that package. Because education is one of the state's most important functions, lack of financial resources will not be an acceptable reason for failure to provide the best education system. All other financial considerations must yield until education is funded.
Recall that the Kentucky court, for example, had provided the legislature with very broad guidelines as to what constituted the components of an adequate education. But it had left it to the legislature to design a school finance system that fit within those broad guidelines. The Wyoming court, by contrast, did not articulate such broad guidelines. Rather, it specifically directed the legislature to determine what is a "proper educational package" for all Wyoming students. The bite of its order, however, was that once the legislature identified that package, the state had the constitutional duty both to determine how much it would cost and to fully fund it. The court emphasized that the legislature's funding decisions could not be driven by politics or concerns about revenue availability, but must instead make judgments about actual educational goals, needs, and costs.
Significantly, the Wyoming court rejected the notion that local school districts could exercise their local taxing power to supplement the state provision of school finances. Indeed, the court noted that "historical analysis reveals local control is not a constitutionally recognized interest and cannot be the basis for disparity in equal educational opportunity." This approach, however, seems to be more of an exception than a rule in adequacy litigation. Indeed, most states and state courts addressing adequacy concerns have approached the issue more like
the New Hampshire and North Carolina Supreme Courts, which would allow for local variation in spending so long as all districts have access to a high-minimum level of adequacy.
Not every state's high court has been receptive to adequacy arguments. In Illinois, where the state constitution's education clause explicitly requires the state to "provide for an efficient system of high quality public educational institutions and services," the Illinois Supreme Court rejected attempts by plaintiffs to evaluate whether the quality of education offered in many plaintiff districts met that constitutional standard. According to the court, "questions relating to the quality of education are solely for the legislative branch to answer" (Committee for Educational Rights v. Edgar, 1996). The high courts in Rhode Island and Florida relied on a similar rationale in rejecting adequacy-based claims (Coalition for Adequacy v. Chiles, 680 So.2d 400, Fla. 1996: ''appellants have failed to demonstrate … an appropriate standard for determining 'adequacy' that would not present a substantial risk of judicial intrusion into the powers and responsibilities assigned to the legislature"; City of Pawtucket v. Sundlun, 662 A.2d 40, R.I. 1995: "what constitutes an 'equal, adequate, and meaningful' [education] is 'not likely to be divined for all time even by the scholars who now so earnestly debate the issues'").
As we explained earlier, some civil rights advocates see adequacy cases as a way to improve the education of inner-city, minority children even if they attend largely all-minority schools. But now a new twist on the adequacy theory has been proposed in two Minnesota cases seeking, among other substantive education remedies, racial integration. Advocates there have sought to have an adequate education defined in such a way as to include a racially integrated education (e.g. Minneapolis NAACP v. State of Minnesota and St. Paul School District v. State of Minnesota, both filed 1996). If this approach were to succeed, it would provide a way, through the state constitution's education clause, to remedy non-intentionally created racial isolation, a situation that the federal constitution—through the equal protection clause—would not redress. That the adequacy theory can be advanced on behalf of these two very different educational visions underscores its plasticity. This divergence in approach also exposes the understandable division of opinion within minority communities: some continue to aim for integrated schools even if this means having many children attend school far from home, while others want to concentrate on improving local schools and not risk that precious resources wind up being spent merely for transportation and not education.
Legislative Responses To Educational Adequacy Decisions
An important consequence of moving to an educational adequacy-based theory is that it may require legislative solutions that go far beyond matters of
school funding. Indeed, in Kentucky the emphasis on providing resources to districts that enable them to afford students opportunities to reach certain outcome standards led to remedies that have required not only the restructuring of funding arrangements, but also a re-evaluation and adjustment of all programmatic aspects of the educational process.
In response to the Kentucky Supreme Court's decision, the Kentucky legislature enacted the most comprehensive statewide education reform package to date: the Kentucky Education Reform Act (KERA) (Trimble and Forsaith, 1995; Heise, 1995). While some question how much that reform has improved student achievement, few deny the sweeping nature of the reforms or the fact that Kentucky has dramatically increased its financial effort for education, going from one of the lowest spending states in 1990 to now being in the middle of the pack. Bringing about these changes is generally considered to be a great litigation success.
On the school funding side, KERA established a new foundation program that substantially increased the guaranteed minimum per-pupil expenditure statewide. Overall, the reforms initially resulted in a 25 percent increase in spending in the poorest districts and an 8 percent increase in the richest districts (Alexander, 1991). Beyond funding reforms, KERA mandated a new statewide performance-based assessment system tied to newly developed education standards, statewide curriculum frameworks, an accountability system with rewards and sanctions for schools tied to the achievement of high academic standards and the new assessments, as well as school-based decision-making statewide.
What was it about the Kentucky case that led the legislature to react so boldly and quickly to the court's order? First, the very nature of the court's order—which declared the entire public school system to be inadequate—suggested that minor tinkering with the existing system would not lead to constitutional compliance. Additionally, adequacy's focus on providing students with the opportunities necessary to achieve state-defined educational outcomes caused the state to (1) define such outcomes, (2) develop measures of when students were meeting those outcomes, and (3) create programs to move districts with large numbers of students failing to meet expectations forward. Finally, it appears that Kentucky was politically primed to respond quickly and positively to the court's decision. The governor had campaigned in support of school reform, the still-politically-powerful former-governor had represented the plaintiffs in the litigation, and school improvement had been strongly pushed for some time by a statewide education-reform committee that had the support of both business leaders and other community elites (see Carr and Fuhrman, Chapter 5 in this volume).
How much of a difference these reforms have made in the lives of Kentucky schoolchildren is another matter (see Evans et al., Chapter 3, and Goertz and Natriello, Chapter 4 in this volume). If the reforms are to yield gains in educational achievement, at least some of that should have occurred already. But there is controversy over whether it has. On one set of tests, Kentucky youths seem to
be learning more than ever; but as judged by another set, these children are still below average. Whatever the conclusion one draws about the improved learning that Kentucky schoolchildren have experienced as a result of the reforms, it seems clear that opportunities to achieve learning at higher levels are being offered in areas of the state and to schoolchildren who prior to the reforms were not receiving such opportunities.
In Kentucky, the court's pronouncement on educational adequacy at least led directly and promptly to substantial reform. The political response has been far less satisfactory, however, in some other states. In Wyoming, for example, the response to the Wyoming Supreme Court's "adequacy" decision initially got off on the wrong foot. The legislature undertook a serious examination of its obligations, and Guthrie and Rothstein were brought in to apply their approach to determining the cost of an "adequate" education (described above) to Wyoming's situation. Drawing in substantial respects on those expert recommendations, a legislative package was put together that was passed largely as proposed in July 1997. However, although this new school funding plan purportedly met the court's mandates, the governor vetoed several of its key provisions.
In the spring of 1998, the legislative and executive branches of government in Wyoming finally came together and passed a reform that they believe will hold up against judicial scrutiny. The new law increases the state education budget by approximately 10 percent, pumping a new $76.5 million into the system. In addition to the finance reforms, the law also establishes a statewide student assessment system to measure achievement progress in years to come. Based on a "rational" determination of what educational services are needed to provide students with adequate educational opportunities, this new funding scheme stands a fair chance of being upheld should it again be challenged in court.
The story is much more disheartening in Alabama. The judicial order in that state's adequacy case required the legislature to implement specific reforms in the following areas: (1) student performance standards; (2) educator performance standards; (3) accountability; (4) school based management; (5) staff development, teacher compensation, and adequate staff and support services; (6) non-school barriers to learning; (7) early childhood education; (8) infrastructure; (9) technology; and (10) special education. Because the governor at the time supported education reforms, the initial finding of liability by the trial court was not appealed.
Legislation that substantially mirrored the court's remedial order was introduced in 1994 but failed to pass. Indeed, a new governor was elected who took the attitude that no trial judge was going to tell him how to run the state education system. Furthermore, the trial judge who issued the original remedy order no longer presides over the case. The upshot is that the legislature has failed to implement any meaningful reform responding to the court's orders.
Consequently, in 1996 the parties returned to court, but not to argue over the trial court's liability finding. Rather, the state defendants asked the Alabama
Supreme Court to invalidate the trial court's remedial order, in part on the grounds that it represented an unwarranted intrusion into matters reserved for the executive branch. On January 10, 1997, the Alabama Supreme Court rejected the state's appeal and gave the legislature until early 1998 to come up with its own remedial plan. Yet, as of the time of this writing, the state has still failed to come up with a plan. Perhaps the lower court will soon be compelled to order the implementation of the original remedy. If the New Jersey experience is any guide, however, this is not likely the end of the involvement of the Alabama courts.
In New Jersey, where the state supreme court pronouncements over years of school finance decisions have had both equity and adequacy overtones, plaintiff districts have continually returned to court complaining that the legislative response has been insufficient. A first back-and-forth battle was played out in the 1970s, and the court seemed finally satisfied. But in response to a subsequent lawsuit filed on behalf of some of the state's poorest urban school systems, the court in 1994 ordered the state to bring the spending levels in the plaintiff school systems—comprised of 29 poor urban districts—up to the level of the wealthiest school systems by the 1997-98 school year (Abbott, 1994). In addition, the court required the state to provide whatever supplemental services and resources are necessary to account for the extra educational needs associated with educating large numbers of students from disadvantaged backgrounds.
In late 1996, New Jersey's legislature adopted the governor's proposed response to the court. At the heart of the new law is the notion that all schools should be funded at a level which allows them (and their students) to meet the state's education standards. The new scheme sets a base per-pupil figure (for regular education only) that claims to be sufficient to meet those standards. At the elementary level the amount is set at $6,720, at the middle school level it is $7,526, and at the high school level it is $8,064. In addition, the law provides supplemental aid to the state's poorest districts to assist them in meeting the needs of their at-risk student populations.
No sooner had the legislation passed, however, than state officials were back in court defending it. Plaintiffs claimed that the new law failed to satisfy the equity components of the court's prior school finance orders and therefore continued to violate constitutional standards. The plaintiffs also questioned the validity of the cost estimates used to set the base and supplemental funding amounts.
In a May 1997 decision, the New Jersey Supreme Court agreed with the plaintiffs. The court faulted the new law primarily on the grounds that there was no "demonstrable relationship" between the amount of funds the state identified as necessary to provide a "thorough and efficient" education, and "the real needs of the disadvantaged children attending school in the special needs districts.'' Indeed, the court concluded that "[b]ecause the state never conducted [a] study … to determine the actual needs of children in the special needs districts, the aid
amount provided for by the new plan is necessarily arbitrary and therefore fails to satisfy the court's orders."
The New Jersey court's order to the state legislature reflected great frustration with the compliance efforts exhibited by the state defendants to date. "The legislature is required, as interim remedial relief, to assure by the commencement of the 1997-98 school year, that per-pupil expenditures in the poor urban districts are equalized to the average per-pupil expenditure in the wealthy suburban districts." In addition, the court ordered the state to study, identify, fund, and implement the supplemental programs required to redress the disadvantages of public school children in the special needs districts. Lastly, the court required the state to "assure that all education funding, including and especially the additional funding ordered today, is spent effectively, efficiently, and in furtherance of the achievement of the core curriculum content standards."
This 1997 New Jersey decision reflects something of a blend of traditional finance equity and adequacy approaches. The court required that the state conduct a study of what it would take—in terms of educational services and resources—to provide disadvantaged children in the poorer school districts with opportunities to achieve the state's educational content and achievement standards. As an interim step to moving to that adequacy-based system, however, the court required per-pupil expenditure equality between the poorest and wealthiest districts.
In May 1998, the New Jersey Supreme Court issued what could be the last decision—at least for a few years—in the state's long-running school finance battle (Abbott v. Burke, N.J. Sup. Ct. May 1998). The court noted that "this decision should be the last major judicial involvement in the long tortuous history of the State's extraordinary effort to bring a thorough and efficient education to the children in its poorest school districts." The recent decision approves a plan for funding and systemic education reform in the State of New Jersey put forward by the State Commissioner of Education after a long process of expert consultation and review.
In essence, the court ordered that the state implement the following education reforms: (1) whole school reform, namely the "Success for All" model; (2) full-day kindergarten and half-day preschool for 3- and 4-year-olds; (3) a technology, school-to-work, alternative school, accountability, and college-transition program; (4) standards that will enable individual schools to adopt additional supplemental programs and funding to support such programs where a demonstrated need is established; and (5) a comprehensive facilities plan. While these reforms were proposed in the first instance by the State Commissioner of Education, the fact that the Supreme Court has ordered that they be implemented sends a powerful message to the executive and legislative branches about the need for swift compliance.
Indeed, unlike the Kentucky Supreme Court's decision, which only articulated broad guidelines for the intended reforms, the New Jersey court has ordered
a comprehensive education reform package that could dramatically change the interaction between teacher and child in the plaintiff school districts. In that respect, the New Jersey decision is another bold step in a direction of the "adequacy" reform movement. As the court said, "Success for all will come only when the roots of the educational system—the local schools and districts, the teachers, the administrators, the parents, and the children themselves—embrace the educational opportunity encompassed by these reforms."
In Arizona, after the high court's 1994 ruling declaring that the state's system of funding capital facilities and costs was unconstitutional, the legislature and governor worked to pass a redesigned system in 1997. However, on October 24, 1997, the Supreme Court sent the legislature back to the drawing board. Facing a lower-court-imposed deadline of June 30, 1998, the legislature and governor were told once again to craft a system of funding school facilities that will ensure that all facilities in the state meet the high court's earlier articulation of adequacy.
In June 1998, the Supreme Court of Arizona for a fourth time declared that the State's recent effort to solve its equity problems with respect to school facilities was unsatisfactory. Under the court's prior rulings, the state was constitutionally compelled to establish minimum adequate standards for school facilities and provide for funding that ensures that no district is unable to meet those standards. Moreover, the state was supposed to ensure that any funding mechanism to achieve that end must not itself result in substantial disparities between districts. Like New Jersey, that decision blends an adequacy and equity component.
The recent legislation fell short of meeting the court's articulated requirements. While the state's facilities standards passed judicial scrutiny, the court found that the funding mechanism that the state adopted created substantial disparities in school districts' abilities to raise revenue for schools. The court gave the legislature 60 days in which to develop an acceptable plan for funding facilities improvements across the state.
The experience in states like Alabama, Arizona, New Jersey, and Wyoming demonstrates that there are real limits on judicial authority over the legislative process. The power of the courts is mainly the power to say no. In the end, it is the legislature (or the state department of education) that must propose and implement the reforms. Courts can threaten individual defendants. They can even threaten to close down the entire public school system, although were it necessary to carry out this threat, it would probably have a perverse impact on the objectives the courts are seeking to achieve. In any event, because of the nature of the adequacy theory, it currently seems unlikely that many courts will take over the educational system and impose their goals, their implementation strategies, and their funding mechanisms on the people of their state. It isn't so much that the courts could not turn to educational policy experts to help them make these
decisions. Rather, it is that making those choices would seem to force the courts to get into issues that are too much a matter of political judgment.
Still, one should not unduly despair about the limits of judicial power. For one thing, courts imposing equity remedies on states in wealth discrimination cases have also not had smooth sailing. In Texas, for example, the Texas Supreme Court had to reinsert itself into the problem several times as the legislature continually failed to enact a reform that met the court's standard. Indeed, this is the same lesson to be learned from the first two decades of public school desegregation litigation. Faced with "massive resistance" by Southern states, the courts had to endure seemingly endless legal battles before the regime of school segregation finally fell.
Of course, many today believe that the fight to obtain true equality of educational opportunity for blacks has never been won. Now some hope that educational adequacy litigation can be harnessed, at least in part, in furtherance of that goal. If so, this new wave of court-ordered reform could turn out to be, through a very convoluted route, the real legacy of Brown.
It remains to be seen, however, just how insistent the courts that have handed down educational adequacy decisions will be. Perhaps, as in the race area, the judges will turn out to be more effective at striking down blatant violations of clear norms of fairness than they are at bringing about genuinely equal educational opportunities that satisfy the original victim class.
Educational adequacy has strengths and weaknesses both as a legal theory and as a principle for guiding educational policy. By exposing the shortfall between what students now receive and what they really need, it can lay bare the gap that the states must fill if they are to have a chance to match reality with their own common rhetoric—that all children (or at least most children) can genuinely be taught to the high standards that will be critical for success in the twenty-first century. Because the adequacy notion aspires to ambitious educational outcomes across the board, inherent in it is the necessity that school finance arrangements take into account the special needs of some children, the high costs some schools face, and so on. Moreover, although we are doubtful that lawyers will win a national commitment to adequacy in the courts, the more that states embrace the concept, the more pressure there is likely to be on the federal government to assist children in those states that have insufficient fiscal capacity to provide sufficiently for their own pupils.
Furthermore, at least in its predominant view, educational adequacy does not stand in the way of some communities providing, and thus some children attaining, even more than the high-minimum sought for all. Although this inequality is apparently acceptable—even welcome—to most supporters of the educational adequacy theory, it is a glaring unfairness to those who cling to the principle
underlying the equity cases. To school equity devotees, such inequalities could only be fair if education beyond the high-minimum is the equivalent of frivolous extra frosting on an already well-frosted cake. For that to be true, of course, the high-minimum would need to be genuinely very high.
On that score, however, supporters of the school finance equity cases are likely to be skeptical about how capable or persistent courts in adequacy cases can or will be in demanding a genuinely high-minimum that delivers results. They fear that, in the end, wealthier school districts will succeed in making sure that their greater fiscal capacity may be used to purchase advantages that are well worth having. For equity supporters, therefore, the best hope still lies in forcing the rich and the poor into the same educational boat.
But this appraisal of what is both politically and judicially possible under the adequacy approach may be too pessimistic. A few more litigation successes like that in Kentucky, and most recently in New Jersey, could generate considerable optimism and courage among state supreme courts. As a result, state constitutional provisions with respect to education, despite their ambiguity, could become truly powerful sources of children's rights.
In the end, technical developments may play a key role in resolving this matter. If reliable and agreed-upon measures of what children should learn and have learned at various stages of their schooling could be developed, that would be an important first step. Although some people think we are well down that road already, one must be at least somewhat skeptical of that conclusion in view of the firestorm of opposition that has greeted President Clinton's proposals for national education testing.
In any event, having measurable standards is only a part of the job. It is not enough merely to aspire to teach all children to those standards. We also need the technology to bring that off. Money, perhaps a lot more money in some schools, may be necessary—or maybe not. And at the moment there is no consensus as to just how much more, if any, is needed in just which schools. But, this is a new area of research and perhaps before long some agreement will be reached on an approach that draws the best from the Guthrie and Rothstein, Augenblick, and Duncombe and Yinger approaches.
Even then, we note that those methodologies tend to be backward looking—seeking to identify what would it cost to enable all schools to achieve X result, given the way successful schools have been run to date. But many think that there are new, much more highly productive, educational solutions out there waiting to be discovered, or perhaps already discovered and just waiting to be identified. One thing these solutions tend to have in common is a belief that the focus of reform should be at the school level.
For example, several prominent educational innovators like Robert Slavin, Henry Levin, Theodore Sizer, James Comer, and Chris Whittle (and his Edison
Project) say they know what school changes are needed to achieve success for all, even though each relies on quite a different strategy. Other reformers insist that we need school-site management as a prerequisite for any improvement, or that we need rebuilt schools that are now in physical disarray, or that the rules be changed with respect to hiring and firing of school employees, including school principals. Some insist that we "reconstitute" failing schools, putting them into some kind of receivership. Yet others point to successful "high performance" organizations in other fields as examples for schools to emulate. Still others see the main hope in market competition brought about through large-scale school choice schemes (such as widespread charter school and/or school voucher plans). It is not inconceivable that all (or most) of these approaches could work. Indeed, some of them would cost little or no new money, although they might change considerably the way that money is spent. We doubt that courts will insist upon any single one (or combination) of these reforms. Yet, legislatures, school districts, and schools might well be moved to try out many of them in response to educational adequacy litigation—and from that experience we might get a better idea about which, if any, really do work on a large scale.
Whatever hopes there may be for the future, at present, alas, certainly in our large urban school districts, it is widely perceived that we are nowhere near having success for all. Moreover, some fear that, given the amount of money that can plausibly devoted to elementary and secondary education, having most children achieve high standards is an unattainable goal. Indeed, some pessimists believe not only that extra money (even if it were available) won't bring about success for all, but also that no education reform, at least by itself, is capable of yielding high educational attainments by most big city schoolchildren. For some of these critics, school finance litigation is wasting our time, money, and attention. Instead, as they see it, dramatic changes must first be made in the lives of the parents of these children; whether the parents need good jobs or moral rearmament may be in dispute, but the common notion is that the child's home life needs improving first.
But educational adequacy supporters are unlikely to be dissuaded by this pessimism about the role of the schools. Not only are they unwilling to give up on another generation (or more) of children while awaiting other social changes, but also they find it politically and practically more attractive to begin by seeking directly to improve the lives of children. Hence, whether or not educational success for most children is really attainable in the short run, lawyers are likely to continue to press courts to say that educational adequacy is a judicially enforceable state constitutional objective. And if the claimants continue to win in court, the judges may at least function as a spur to more innovation and experimentation than our existing public education system would undertake on its own. Therein, perhaps, lies the main promise of the new educational adequacy paradigm.
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