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