School finance litigation: a neverending play

I was going to post a reply to Greta’s post, but then realized I’ll just write another post elaborating a little more on the important issue of school finance litigation.

Greta is correct in pointing out the three waves of finance litigation. The literature is unanimous on the development of these cases and on the textual anchor of each wave. Some even suggest that a fourth wave is upon us, that of socio-economic integration or relying more on state desegregation clauses. At any rate, the three waves is a correct description of where we are right now.

Where the situation gets a little trickier, however, is whether adequacy suits are successful in achieving their purpose. Here we need to take account of a host of factors, of which the courts are just one, and perhaps not even the most important one.

Perhaps unsurprisingly, adequacy lawsuits tend to succeed in a hospitable political environment. Greta points to the New York case, which is actually a great example. In New York, the litigation was driven by the Campaign For Fiscal Equity, a dedicated NGO that really mobilized (through partnering up with other organizations) the communities affected by funding disparities. Despite that great mobilization, that litigation took 13 years to complete, and although the state court determined that each year $1.93 billion must be allocated to education, it gave the legislature the discretion to decide how that money would be spent.

But even in New York, and in the rest of the country, adequacy lawsuits have proved elusive. Pioneering work on these issues was done by Michael Rebell, a professor in Columbia’s Teachers College. In an article published in 1996, in the Yale Law & Policy Review, he concludes that court intervention has been, overall, disappointing. Very few states actually changed their funding scheme, and even those that did, the long term effects are nebulous. In addition, in some states, such as California, there have been adverse results with regards to equality after the court mandated changed, and in other states, such as West Virginia, the legislature completely ignored the court’s decision. In New Jersey, court involvement triggered a longstanding conflict between the court and the legislature, where the court continually struck down legislative funding schemes, deeming them inadequate. It should be noted that Rebell does propose a solution to these problems, in the form of public engagement campaigns, also called dialogic remedies. Public engagement is promising, and perhaps I’ll blog about it some other time.

Another trend that possibly undermines Greta’s analysis is the recent reluctance of courts to continue hearing adequacy lawsuits. Adequacy suits are long, expensive, require constant monitoring by courts, and heavily criticized by other political branches and, mostly, though not uniformly, by conservatives. Erik Hanushek, perhaps the most important conservative voice in this debate, has been influential. In his many books and articles, Hanushek claims that the achievment gap is not attributable to funding, but to the lack of incentives that produce good outcomes. He is a fierce critic of judicial involvement, for a variety of reasons that I won’t go into here. Although I disagree with his conclusions, his approach has been influential in the debate.

The recent decline in the willingness of courts to hear adequacy suits stems from these concerns. Courts have noticed that adequacy litigation is complex and perhaps overextends their capabilities. They have also noted the dismal record of courts that did take on the legislature. As a result, more and more courts, between 2005-2008, have declined to take on adequacy cases, citing non-justiciability, traditional concerns for the separation of powers, and deference to legislative budgetary allocations. An empirical study conducted by Robynn Sturm and Julia Simon-Kerr confirms this.

So, what is the lesson? It seems that on the whole we cannot be too optimistic about adequacy litigation. We need to rethink the kinds of remedies that might work in the education context. Rebell’s public engagement is one of those remedies. Other scholars suggest a host of non-monetary remedies, such as expanded school choice, mandatory pre-school, increased focus on the process by which education decisions are made. Finally, a hospitable political climate is key. The adequacy suits that have been successful enjoyed legislative support, an engaged and committed civil society, and a vast support structure that accompanied such reforms. Courts, alone, cannot be the answer. And allocating more money, alone, is not the answer as well.

Related post: Suing the state for inadequate schools: a drama in 3 acts


Suing the state for inadequate schools: a drama in 3 acts

My co-blogger Adam will surely disagree with me, but I was intrigued and excited by last week’s decision by the Colorado Supreme Court in Lobato vs. Colorado. The decision held that the lawsuit, which challenges the adequacy of funding for the public schools in the state, could go forward.  The full opinion of the court is here.

Lobato began in 2005, when a group of parents from 8 school districts across Colorado brought suit against the state.  The Colorado state constitution requires that the state provides a “thorough and uniform” system of free public schools in the state.  The plaintiffs in the lawsuit allege that the “thorough and uniform” standard should be defined by Colorado’s own educational content standard, and that some Colorado public schools are not meeting that standard.

The district court in Denver initially dismissed the suit, and its ruling was upheld by the Colorado Court of Appeals.  But the Supreme Court in the state overturned the ruling last week and sent the case back to trial court.

Lobato is not unique.  It is part of a national trend.  Similar lawsuits have been filed in 26 states around the country, with favorable results to the plaintiffs in more than 20 states.  Those lawsuits may well bring about a sea change in school-financing in the country, but this change did not come easily.

School funding litigation occurred in three stages.  Earlier school funding litigation tended to focus on the Equal Protection guarantee in the U.S. Constitution.  These lawsuits got the plaintiffs nowhere.  In the 1973 landmark case of San Antonio Independent School District v. Rodriguez, the Supreme Court held that a school-financing system based on local property taxes did not violate the Equal Protection Clause in the Fourteenth Amendment, even though the financing system resulted in vast differences in the amount of money spent per student in different school districts.

San Antonio effectively cut off school funding litigation in the federal courts based on the Equal Protection Clause.  Trying to circumvent it, plaintiffs turned to state courts. All state constitutions have education clauses that guarantee public schools for children within the state.  Over the next 2 decades or so, a wave of lawsuits, based on “equity” claims that were strikingly similar to the Equal Protection claims in San Antonio, were filed in state courts across the country.  This was “Act Two” of the school funding litigation.  Unfortunately for the plaintiffs, state courts by and large rejected the “equity” claims just as the Supreme Court rejected the Equal Protection claims of the plaintiffs in San Antonio.

The final act began in the late 1980s, when the legal concept of “adequacy” gained popularity and met with greater success.  Some commentators observed that it is no accident that the doctrine took hold in an era where the standards and accountability movement in education also rose in popularity.  If the state government was going to set educational standards and hold schools accountable if they do not meet those standards, then the government had better give schools enough funding to meet the standards.  This is precisely the argument of the Colorado plaintiffs.

Critics of the adequacy lawsuits say that the judiciary is not a competent institution to decide whether a financing system is “adequate.”  Such a complex subject is the purview of the legislature.  The troubled history of the adequacy suits in New York is instructive as to the perils of this type of lawsuits.  After a string of legal victories by the plaintiffs, the  high court in New York ordered the state to undertake studies and fund each school adequately.  When the state did not act by the deadline, the court took it upon itself to appoint a panel of specialists and to hold hearings on the matter.  The panel made recommendations that involved several billions of dollars of funding, which resulted in several more years of legal resistance and appeals from the state and backtracking by the courts.  (You can read a brief recount of this painful history here.) The story has a semi-happy ending: a scaled-down version of the recommendations was eventually proposed by the governor and adopted by the legislature.

In spite of the messy history,  however, I am still optimistic about the adequacy lawsuits.  Although the courts may not be great with designing complex financing systems and enforcing its funding recommendations, it does very well in formulating legal standards and applying those standards to a set of facts, even a set of very complex, data-laden facts.

And this is precisely what we need from the courts here.  We need them to articulate what “adequate” public school means when it is written into the state constitution.  We then need them to decide whether particular school districts meet those definitions, and, if a financing system results in consistently inadequately funded schools, whether that system passes (state) constitutional muster.

No one said that the process won’t be painfully slow and ineffectual, just like the way our government sometimes works.  It will certainly have federalism land mines along the way, such as when the legislature simply ignores the court’s determination of unconstitutionality.

But the first step to recovery is admitting that you have a problem, and courts are great with that.

Related post: School finance litigation: a neverending play

Is higher education a luxury good?

luxury goods

Mmmmmm... luxury...

My post about merit scholarships and how they reflect on our notion of higher education got me thinking: do we in fact treat higher education like a luxury?  In economics, a “luxury” good is defined as a good for which demand rises disproportionately when income rises, and decreases disproportionately as income decreases.  In economic lingo, a luxury good exhibits high elasticity of demand.

The concept is in contrast to “necessity” goods, for which demand is not related to income and there is low elasticity of demand.  There are also “normal” goods, where demand rises proportionately as income increases, and “inferior” goods, where demand decreases as income increases.

Looking at education as any other types of goods or services that people can purchase, we might ask how its demand relate to income levels, and in turn, what type of good it is.  The question is hard to answer for primary and secondary education, because every state has some form of compulsory education laws, which usually require children to be educated up to the age of 17 or 18.  Because primary and secondary schools are free for children from low-income families, it is difficult to measure what the level of demand would have been at various levels of income.  (But private primary and secondary school education is probably a luxury good.)

Governmental subsidy for primary and secondary education suggests that at least conceptually, we treat those types of schools as necessity goods that should be guaranteed even for people who cannot afford to purchase them.  Other good examples of government subsidies include low-income housing, food stamps, and medicare/medicaid, which reflect our belief, as a society, that shelter, food, and medical care are necessity goods for our citizens.  This explains why, even in times of recessions, though states have had to cut the education budget, no one dreams of eliminating either the public school system entirely or the requirements for compulsory education.

But what about higher education?  There is no equivalent legislation to require or subsidize postsecondary education.  People are free to attend or forgo colleges and universities as they choose.  Demand (in the form of enrollment rates) is therefore easier to measure.

Conventional wisdom suggests that enrollment in colleges should increase during bad economic times, because the opportunity costs of colleges — in the form of lost income — decreases, and those who cannot find a job or are laid off would flock to the schools to improve their skills and “wait out” the recession.  As I have noted in a previous postenrollment at community colleges are indeed soaring in recent hard economic times.  Over 90% of community college presidents say that their enrollment has been more than the previous January.  Some have called the increases unprecedented.

But the same growth has not been experienced by the more expensive colleges and universities in the nation.  According to surveys conducted by several national education associations this past spring, More than 65% of high schools reported more students applying to public colleges rather than private colleges compared to previous years.  Nearly one-third of private colleges expect freshman enrollment to decline in the academic year of 2009-2010.

The data suggests that there are at least two types of education goods  There are the cheaper public 2-year colleges.  They can be deemed inferior goods because demand for them tends to rise as income drops and drop as income rises.  There are also private colleges and universities.  The more expensive public universities, especially for out-of-state students, can also be grouped in this category.  They are luxury goods because demand decreases sharply when income decreases, and climbs rapidly as income climbs.

The picture is complicated a bit by the generous financial aid that many private universities offer to its students.  At Harvard University, for example, parents in households that make less than $60,000 are not expected to contribute at all to college costs, and households that make less than $180,000 are expected to contribute about 10% of their income.  Need-based scholarships have also replaced student loans.   Other elite universities have followed suit and instituted similar financial aid programs.  An education at those universities, at least for those in the lower-middle- or middle-class families, are essentially free.  Even for upper-middle-class families it is fairly low-cost.  Demand for these “goods” should therefore exhibit relatively low elasticity.

But it seems that education at the vast majority of private, four-year colleges is a luxury good and will be hard-hit by this recession.

Duly noted: Oct 19 – 25, 2009

  • Public colleges tuition rose 6.5% last year, and private college tuition rose 4.4%, although consumer price index had a negative growth.  Private student loans declined by 52% in 2008 to 2009 as lenders, hard-hit by the recession, tightened credit standards.
  • Ted Sizer, the former headmaster of Phillips Academy and dean of the education schools at Brown and Harvard Universities, died at 77.  “One of the giants of American education,” Sizer inspired a national movement to restructure the nation’s schools to be smaller, more nurturing, and more learning-centered.
  • The DC school voucher’s program, which was de-funded by Congress in March, has renewed support in the Senate. The Opportunity Scholarship Program provides 1,700 students from low-income families with annual scholarships to attend private schools.
  • Maryland Higher Education Commission barred the University of Maryland from offering an online doctoral program to state residents, ruling that there would be “unnecessary duplication” of existing programs at historically black colleges, though still permitting the university to offer its program to out-of-state students.  This results in an unusual situation where “a state agency has forbidden a public university from serving its own residents.”
  • A colorado lawsuit that challenges the state’s public school funding as “inadequate” could go forward in district court, according to a 4-3 ruling by the Colorado Supreme Court.  The lawsuit claims that the current school funding structure in Colorado violates the state constitution’s requirement for a “thorough and uniform” system of public schools.
  • Prosecutors in the Illinois state attorney’s office subpoenaed the “grades, grading criteria, class syllabus, expense reports and email messages” of the Medill Innocence Project, a journalism class at Northwestern University that has helped the release of 11 inmates.  Officials say that they need the information about the students’ 3-year investigation into the case of Anthony McKinney, in prison for killing a security guard in 1978.  The university is fighting the subpoenas.

What merit scholarships say about us

Who should the college gates keep out?

Who should these gates keep out?

The College Board released data on Tuesday that shows substantial increases in tuition at public colleges in the country last year.  Prices increased by an average of 6.5% last year, despite low inflation rates and a negative consumer price index.  The tuition hike is yet another symptom of the state budgetary crisis, which have resulted in cuts in higher education spending.  This created shortfalls for state universities and colleges that must then be made up by increased payments from students.

The budgetary crisis has led some states to reconsider their merit scholarship programs.  More than 15 states currently have scholarships for the state’s public universities awarded according to  student grades, class ranks, and standardized testing scores.  While merit scholarships seem like a fairly standard and uncontroversial practice, at least for private universities, critics charge that public universities ought not to have them, because these programs drain financial resources away from students who have greater financial needs.

The argument is simple: recipients of merit scholarships–those with good grades, good SAT scores, etc.–tend to be students from more affluent families, who are more able to afford college and who would likely receive private scholarships anyway.  The limited resources should be saved for students who truly need it, who would not be able to attend college without it.

This type of criticism brings out an important debate about the educational mission of public universities.  It also reveals a tension between research universities and teaching-oriented schools such as community colleges.

My co-author on these blogs, Adam, has already written about the function of the universities as producers of knowledge.  The reality, however, is more complicated.  Realistically speaking, relatively few of the public universities in this country actually engage in the exalted activity of knowledge production.  Out of the nearly 5,000 colleges and universities in the U.S., only 150 institutions receive more than $40 million in federal research grants.  Among those, about 60 universities grant more than half of all the doctoral degrees in the country.  30 of those are public universities.  We can assume that knowledge-production goes on mostly in those large research universities.

The overwhelming number of colleges do not “produce” knowledge.  Their mission is more mundane: teaching the 18.2 million students that enroll in an undergraduate program each year.  There are, for example, nearly 1,200 2-year community colleges in the U.S., educating nearly half of the total undergraduate population.

As is typical of recessions, enrollment at these community colleges has been soaring as cost-conscious students and parents look for cheaper alternatives.  The budgetary cuts on education by many states, therefore, could not have come at a worse time.  It’s hardly surprising that merit scholarships seems like a classic example of a nonessential expense that begs to be cut.

But merit scholarships have a more complex rationale as well.  They were usually instituted to encourage top students in a state who might otherwise leave the state and go elsewhere for college to stay within the state.  Presumably, these students would then remain after college, become productive members of the workforce and contribute tax dollars to the state.  Attracting these students would also increase the prestige and the ranking of the in-state universities and in turn attract other students from out of state.

It seems that, in times of economic recession, when middle-class and upper-middle-class households are feeling most squeezed by the downturn and sensitive to price differences, this type of merit scholarships would be at its most effective.  If a state is looking to attract top students, both homegrown and abroad, it should expand, rather than contract, its merit scholarship programs right now.

Which brings me back to my original question of the basic educational mission of public universities — is it to give as many citizens as possible the opportunity to attend college, or is it to educate only, or preferably, the best and the brightest, because educating them brings more benefits to the state (and perhaps to society)?  This, in turn, probes our notion of what education is: is it a basic right that should be enjoyed by the many, or is it a kind of luxury, a privilege that society confers on the talented and skilled (and rich) few?  We can also see that in these questions, the mission of the community colleges (fulfilling the more democratic mission of educating the masses) is at tension with the mission of the public research universities (competing with the private universities and catering to the talented few).

In time of economic prosperity, it was possible that both missions could co-exist peacefully.  But a time of scarcity brings these tensions to the fore.

Politics, political science, and the production of knowledge

My last post discussed the costs associated with judicial supervision of the academic system, where I argued that such intervention undermines the purpose of a university. Today, however, I learned of a different kind of intervention. In a recent proposal, Senator Tom Coburn (R-OK), suggested that the National Science Foundation, the federal agency in charge of funding scientific projects, stop “wasting any federal research funding on political science projects“.

CoburnThis is no small potatoes. The NSF, with a budge of over $6 billion, funds about 20 percent of all federally supported research at American colleges and universities. Though political science research would presumably continue, it would no doubt take a hit if Coburn’s proposal is approved. A $9 million hit, to be exact.

Presumably, the proposal is motivated by the idea that political science departments don’t conduct valuable research (it’s hard to discern what Coburn’s idea of value is, however), and that the money could be spent more efficiently elsewhere. Indeed, Coburn said that network television and cable news stations provide a myriad of answers to the questions political scientists are engaged with.

There are at least two problems with Coburn’s proposal. First, is the idea that a politician, who is probably not very well versed in the academic literature, seems to think, based on scant evidence, if any, that an entire scientific field is worthless. I’m saying this is a problem because the NSF, which is a federal agency comprised of experts and which also employs scientists to determine how the funds will be disbursed, does not seem to think the field is worthless. The NSF actually does maintain regular contact with the academic and research community to assess the situation.  It is unclear, then, what the criteria for Coburn’s proposal are, and he would do well to articulate them.

More importantly, and on a more philosophical level, Coburn’s argument demonstrates a misunderstanding regarding the production of knowledge. This misunderstanding is so severe and so widely shared, I think, that a fuller elaboration is necessary.

Knowledge is produced today mainly in two settings, market and non-market. In the market setting, knowledge is produced for commercial purposes and basically follows the supply and demand curves. If the public demands a product or service, or if developers sense a need for such product or service, then efforts to produce that product will take place and knowledge will be accrued in the service of that and future products. The knowledge produced in the market setting, therefore, is dependent on market needs. If the market doesn’t need a product right now, then it will most likely not be developed, and the knowledge won’t be gained.

Knowledge can also be produced in non-market settings, such as universities, government laboratories, think tanks, and the like. Because the knowledge is developed outside the market, it doesn’t have to meet its demands.

Already we can see the difference. In the market setting, knowledge is produced instrumentally, to bring about a product. On this view, knowledge is the means to produce an end. But knowledge can also be considered as a product by itself, which is what the non-market (academic) setting is mostly concerned with. If we think of knowledge as having these two meanings, then we can point to a market failure in the production of knowledge. The knowledge that we get from the political pundits Coburn referred to is knowledge produced to achieve something else, for example high ratings. The market is therefore ill-equipped to produce the knowledge as product that universities, and political science departments, produce.

Coburn is being terribly short sighted here. It could indeed be that some political science scholarship does not reap immediate rewards. However, the nature of the production of knowledge for the sake of knowledge, and its interaction with market based knowledge production, is that it produces more knowledge. How we come to know something invariably depends on all the trials and errors and progress that preceded it. Cutting funding is to be oblivious to that . It harms the production of knowledge.

Duly noted: Oct 12-18, 2009

duly notedGreta’s note: Duly noted will be a regular feature of the Law and Education Blog.  It will be a compilation of notable news, opinion articles, and essays about law and education during the past week that we want to share with our readers.  It will appear on Sunday evenings.

  • Math scores in the U.S. plateaued.  Nationwide disparity among states and achievement gaps among children of different races did not diminish despite No Child Left Behind.  DC, with the worst average score among 8th graders, nonetheless celebrates its 5-point improvement since 2007.
  • 6-year-old Zachary Christie, who was suspended for 45 days for bringing a “combination folding knife, fork, and spoon” to school, is back in school after board members voted unanimously to overturn the punishment.
  • In the Wall Street Journal, Peter Berkowitz criticizes Yale Press’s decision to remove all representations of Muhammad from its new book, “The Cartoons that Shook the World”, and laments a general decline of the freedom of speech in academia.
  • The Frankfurt Book Fair took place last week.  China was its guest of honor, spurring criticism from dissidents against the country’s record of censorship and lack of freedom of speech.
  • The en banc court of the Sixth Circuit, in a 8-8 decision, rejects the suit of a group of school districts that challenged the districts’ obligation to spend their own money in order to fulfill the “unfunded mandates” in the No Child Left Behind statutes.  Because the en banc court was deadlocked, the original district judge’s decision to dismiss the suit stands.