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

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