When Unaccountable Courts Meet Dysfunctional Schools
by Frederick M. Hess
Last year, Columbia University formally abandoned intellectual neutrality and embraced political activism in a remarkable fashion. The university announced a Campaign for Educational Equity that aims, in its first year, to raise $12 million to engage in "action research" and advocacy on behalf of "educational equity." This development should alarm anyone who believes that "no taxation without representation" is a bedrock American principle.
For the uninitiated, "educational equity" entails filing lawsuits in an attempt to get courts to order elected officials to raise taxes and pump additional spending into particular public schools. Columbia Teachers College president Arthur Levine boasts his university's newest unit "is not an academic undertaking. . . . The goal, very simply put, is to make things happen."
Columbia's campaign is being led by Michael Rebell, a crusading attorney of a decidedly activist bent. Rebell's claim to fame is that he masterminded the litigation in New York that eventually forced the state's taxpayers to cough up $5.6 billion a year more for the New York City schools, and to finance a $9.2 billion school facilities fund--even though the Big Apple already spent over $14.1 billion on public schooling in fiscal 2006, more than $12,800 per student.
The New York verdict is no isolated instance. Similar lawsuits to force up school spending outside of the political process have been filed in more than 40 states, including New Jersey, Kentucky, Wyoming, Ohio, and Texas. So-called "adequacy" litigation emerged in the 1980s as successor to an earlier series of suits intended to boost education spending and raise taxes. Those earlier efforts, launched in the 1960s and '70s and known as "equity" cases, focused on reducing differences in spending between school districts in a given state. This dragged litigants into a "Robin Hood" scenario, seeking to take funds from high-spending suburban districts and give them to poorer districts. This strategy had limited political appeal and modest success, with plaintiffs triumphing only about a third of the time in court.
Seeking a more viable tack, litigants shifted from "equity" to "adequacy," which skirted divisive politics by promising to raise spending everywhere to some vague standard. In the adequacy camp's breakthrough victory, the Kentucky Supreme Court concluded in 1989 that an "adequate" education required, among other things, skills for functioning "in a complex and rapidly changing civilization," "sufficient knowledge of economic, social, and political systems to enable the student to make informed choices," and a "sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage."
The court provided no definition of "sufficient." There were no metrics for determining when obligations were fulfilled. Yet within a year, this ambiguous, aspirational standard resulted in $1.3 billion in new annual taxes for Kentuckians. And that verdict became a model for many other states.
Readers removed from the education wars may be scratching their heads. How can a supposedly non-political Ivy League institution press an "action campaign" for attacking elected school officials with a series of lawsuits, supporting efforts to end-run the democratic process and replace legislative appropriation with verdicts from a handful of judges? This represents a bold attack on political due process, with trial lawyers, activist justices, the public school lobby, liberal public officials, and academics joining together in a quiet effort to commandeer the public purse and take control of public education. These suits constitute the most brazen effort yet to use "creative" jurisprudence to enhance the role of the courts, raise taxes, and expand the public sector by non-democratic means. Can they get away with it?
All 50 state constitutions require free public schools. Adequacy promoters say they are simply extending this by stipulating that states provide "adequately funded" public schools. There are at least two problems with their logic. First, 46 of the 50 state constitutions say nothing about "adequate" funding for K-12 education--they are much likelier to call for an "efficient" system. The second problem is that there is no sensible way of determining what amount of spending is "adequate."
Joe Viteritti of Hunter College, a leading expert on education law, states the simple facts: "Adequacy clauses do not exist in state constitutions. Lawyers have construed adequacy as a loose legal standard from language that had a different meaning. . . . That is what lawyers do." Suits brought by these litigators insist that rather than relying on the political process, "experts" should determine exactly how much money is needed to run a good school. That's a bit like bringing your favored team of engineers to Detroit to study a Ford plant and decide how much it should spend to build cars. The methodologies used "are generally quite unscientific," reports school spending authority Eric Hanushek of Stanford's Hoover Institution, and encourage loose spending on programs of uncertain effectiveness.
When billions in local revenues are distributed via dubious secret formulas and the whims of unaccountable judges, a tremendous arbitrariness enters the law. Vanderbilt professor Jim Guthrie, who has assisted more than two dozen adequacy suits and helped produce the cost estimates in New York's case, has termed the report that provided the basis for the judge's decision to up New York City's spending by $5.6 billion an egregious "mistake." He explains that the report "improperly added the three intervention models together, instead of averaging them. If we had properly averaged the three panel results, the amount of additional money flowing to New York City would have been halved."
"It's as if someone asked you to figure the price of a new car and you did it by adding the price of a BMW to a Jaguar to a Ferrari, instead of just averaging out the price of a new Pontiac," explains Guthrie. At the time, the judge in the case ignored warnings against this elemental economic mistake and threw the full force of the law behind the flawed estimates. Given that these judgments are inherently political and imperfect, it's not even possible to characterize the judge's choice of one figure rather than another as an "error." That's the problem: When school spending is pulled away from elected officials and voters, it becomes a capricious experiment in judicial fiat. One participant in the New York suit explained simply that "that judge was looking to hand down a landmark decision."
The presiding justice, Leland DeGrasse, started with the language in the New York state constitution stipulating that "the legislature shall provide for the maintenance and support of a system of free common schools," and from there established a series of vague demands for particular kinds of instruction. He decreed "skills that students need to become productive citizens capable of civic engagement and sustaining competitive employment," as well as the "intellectual tools to evaluate complex issues" such as "campaign finance reform" and "global warming," not to mention the ability to "determine questions of fact concerning DNA evidence, statistical analyses, and convoluted financial fraud." The result took imperial invention by judges to a new level of artistry.
An Emphatically Political Effort
Adequacy cases are part of a broader strategy to use courts to win victories on spending and government expansion that proponents have been unable to win at the ballot box. Many of the players are high-level partisans. In the Kentucky case described above, for example, the lead attorney for the plaintiffs was a former governor. In a major North Carolina case, the lead lawyer is a past state chairman of the Democratic Party.
At a 2005 Washington, D.C. conference for adequacy advocates, litigators discussed not only courtroom tactics like picking plaintiffs and witnesses, but also how to spin the media, commission public relations firms, and hire lobbyists. Congressman George Miller, a leading Democratic firebrand, implored, "You have to continue to litigate. . . .You can help us realize the goals and live up to the promise of No Child Left Behind." Adequacy suits are an integral part of a guerilla struggle to resist the efforts of "small-government" conservatives to shrink government or lower taxes.
Champions of small government have done a poor job of fighting back. In Idaho, the state Supreme Court overturned legislation intended to prevent adequacy suits. In places like Kansas and New Jersey, elected officials have been unable to marshal the votes needed to challenge court rulings. Supporters of judicial restraint, tax-trimmers, and tough-minded education analysts who might be expected to resist these efforts have been conspicuously absent.
University of Virginia professor Martha Derthick has studied adequacy suits and concludes that "state officials who are in charge of the defense do not necessarily have strong incentives to conduct it vigorously. No attorney general has yet won a large following as a champion of opposing more spending. . .and state superintendents of instruction, who often have a great deal of influence in shaping the defense, have even less incentive to oppose increased spending."
Are We Really Starving Schools?
This battle raises the larger question of whether America is failing to sufficiently fund its schools. "Adequacy" is of course in the eye of the beholder. As a comparative factual matter, however, the United States appears exceptionally generous when it comes to school spending. America will devote more than $550 billion to public schools during the 2006-07 school year, more than $10,000 for every K-12 student. Despite ceaseless claims of tight budgets, after-inflation school spending has more than tripled since 1960.
International comparisons show that U.S. per-pupil spending for elementary and secondary schooling is significantly higher than in other industrial democracies, including those famous for their generous social programs. U.S. spending outstrips Germany, France, and the U.K. by more than 50 percent, and Japan by more than 20 percent, on a per-pupil basis.
America's massive increases in K-12 spending during recent decades have not been matched by improved student achievement. Math and reading scores for today's 17-year-olds are about where they were during the Nixon administration. Even the most prominent funding surges have not helped outcomes. In Kansas City, Missouri, for instance, an infamous court order that mandated more than $2 billion in extra spending did nothing to raise the quality of the schools over two decades.
In the state of New York, an analysis by Standard & Poor found that the half of the state's school districts that spend more than the average produce almost no identifiable difference in student performance or high school graduation, compared to the half that spend less than the average. None of this should surprise us. Economist Hanushek, perhaps the nation's leading authority on the efficacy of education spending, has found in a decades-long series of meta-analyses that there is no clear link between additional spending and improved outcomes in schools.
How "Help" Can Hurt
Beyond their undemocratic nature and their tendency to aggrandize the role of the courts in social policy, adequacy suits not only waste resources but also create new problems. Adequacy "victories" in states like Maryland and New Jersey appear to have underwritten corruption, waste, and incompetence in public schools. A massive court-mandated program for school construction in New Jersey has been plagued with "pervasive waste and mismanagement" plus bribery, according to the state inspector general. The Newark Star-Ledger reports that schools built through this litigation-required program cost 45 percent more than other schools.
In Maryland, a settlement forced by adequacy litigation caused the Baltimore City school district to pad its payroll with bureaucrats at twice the rate of neighboring districts, add school staff, and expand preschool programs. Even with hundreds of millions in extra funding, the district thus found itself in a $52 million deficit in 2003, had to beg the state for additional relief, and continued to post abysmal student achievement numbers.
Experiences like these point to the sad reality that adequacy suits may actually retard school reform--by distracting attention from real productivity, and focusing on dollars instead of badly needed procedural and structural reforms. Infusions of new money can actually make it easier to shrug off tough decisions on how schools are run, and how educators are paid, evaluated, and hired. California's Democratic secretary of education and former superintendent of San Diego city schools, prominent attorney Alan Bersin, has warned that "adequacy litigation is a distraction that will turn out to be another dagger in the heart of public education. . .one more costly placebo in a sector that's seen too many."
The stakes in this fight have been raised by the Bush administration's centerpiece No Child Left Behind act. Hailed by its proponents as a way to discipline public schools and focus attention on outcomes, NCLB has been welcomed by savvy adequacy plaintiffs as a tool for boosting educational spending. NCLB promises to simplify litigants' work by enshrining in federal statute the grand declaration that 100% of students will be "proficient" on state standards in math and reading by 2013-14.
In adopting this standard, NCLB abandoned the tough but realistic goals of leading state accountability systems in favor of pleasing but unserious absolutes. In practical terms, this aspirational language could ultimately mean that states are violating Constitutional protections in any locale where 100% of students are not deemed proficient in math and reading.
The National Conference of State Legislatures has estimated the NCLB price tag at $139 billion annually. Others suggest the figure may be higher and note that NCLB's language basically constitutes an open-ended promise--divorced from considerations of school efficacy or efficiency. You can bet that Michael Rebell, the Campaign for Fiscal Equality, and their allies are hard at work pursuing these opportunities.
In November, the Texas Supreme Court sparked the first hope that today's educational "adequacy" bandwagon might be slowed. The court unanimously rejected the idea that the Texas school system, which spends nearly $10,000 per student, was "inadequately" funded. Particularly noteworthy was the court's declaration that "more money does not guarantee better schools or more educated students." This is believed to be the first time that a state court flatly rejected the conventional presumption that more education spending necessarily leads to better classroom performance. While it's too early to predict the fallout, this defeat might mark a turning point in the fortunes of the adequacy crusade.
The Texas court did more than simply reject the easy allure of new dollars. It acknowledged that public education is a responsibility of the people's elected representatives and the political process, not of judges. "The Constitution does not require a particular solution. We leave such matters to the discretion of the Legislature." Instead of imposing judicial uniformity, the court noted that "public education could benefit from more competition."
Now, if only education reformers could make those sentiments more than just a Lone Star thing.