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August 12, 2004

Adequacy lawsuits: A flurry of developments

As you know, BoardBuzz has been following the legal challenges to state school funding systems that are proceeding in so many states. The bad news for us is that this is quite a challenge right now, because so much is happening. But the good news is for America's school children: They're faring pretty well in court lately. Here are some updates, followed by some observations.

North Carolina
First, the North Carolina Supreme Court has ruled that the state is failing to meet its duty to provide a sound basic education for student in needy school districts. See this story in Education Week. The ruling came just one week after the state legislature failed to come through with the $22 million the state board of education had requested to pay for the 2002 court ruling that state funding was inadequate. The board's plan would have invested in recruitment and retention of qualified teachers and effective instructional programs in poor districts, but House education appropriations committee chair Rep. Douglas Y. Yongue said that some of his colleagues "didn't see it as one of the priorities" in a tight budget year. That is likely to change with supreme court ruling, observers said. Meanwhile Governor Michael Easley bought a little time by promising to come up with a $12 million downpayment to get things started.

A related issue the court decided was that school boards had legal standing as parties to the case, because the outcome was based in part on their role as education providers and would have an effect on that role. By the way, the attorney who argued the case on behalf of the school boards and other plaintiffs was the former chair of NSBA's Council of School Attorneys, Ann L. Majestic of Tharrington Smith LLP in Raleigh.

California
In California, the Los Angeles Time reports that the administration of Governor Arnold Schwarzenegger has settled the lawsuit against his state brought by the American Civil Liberties Union and others. The agreement has to be approved by the judge, but it would devote $1 billion over several years for 2,400 low-performing schools to repair deteriorating facilities, $50 million to assess these needs, and $139 million this year for textbooks. It would provide a process for community complaints and give county superintendents authority to monitor low-performing campuses to ensure adequate textbooks, qualified teachers, and other necessities.

Some educators expressed concern that the proposed settlement is short on cash and long on bureaucracy. Despite reservations, the Los Angeles Board of Education, many of whose schools will be affected by the case, approved the settlement. The board's approval was not required, but state officials decided to ask for it. Smart move.

Texas
On to Texas. The trial in that state's adequacy lawsuit has opened. Nearly 350 school districts have joined together to bring the suit, the El Paso Times notes. We just call your attention to one crucial aspect of this effort. The strength of arguing for adequate funding, rather than for equity among school systems, is that school boards can present a united front. Those who oppose more funding for schools sometimes succeed in pitting school districts against one another in funding cases. Texas school districts weren't about to fall for that one. Attorney Buck Wood, representing 268 property-poor districts, joined attorney George Bramblett, who represents wealthy districts, in telling the judge that "the Legislature has not been willing to put their money where their mouth is" and that "the state of Texas and the students of Texas are in the eye of this perfect storm."

Alaska
Up in Alaska, a coalition including two school districts just filed its school funding suit. The Fairbanks Daily News-Miner reports that the suit asks the court to order an analysis of what it will cost to educate student according to state standards. A study in the early 80's recommended about a 15 percent increase, but, according to researcher Jay Chambers, it got "mixed up in a lot of politics." State education commissioner Roger Sampson expressed surprise at the lawsuit, pointing out that the state's schools are making academic gains across the board and that the legislature just increased funding by $82 million. But Bill Bjork of the state's NEA affiliate argued that, when adjusted for inflation, per pupil funding actually has dropped from $5,240 in 1983 to $3,003 today. Always insist on inflation-adjusted figures.

South Carolina
The ongoing trial in South Carolina highlights the sophisticated use of data in these cases, the Washington Post relates. Superintendent Everette M. Dean of Marion 7, one of eight school districts in the suit, said simply, "We don't have the money to employ and retain high-quality teachers." Lawyers for the legislature argue that Marion 7 in fact spends more per pupil than some more affluent counties. But school attorney Steven Morrison makes a point that's important in these money debates: "per pupil spending is a false standard" where a district serves significantly more at-risk students.

Some common themes
First, as the Post points out, the No Child Left Behind Act (NCLB) and state accountability systems are contributing to the success of lawsuits seeking more school funding. More on that, here. These laws provide what courts previously lacked: a legal standard, established by the state itself, for what constitutes an adequate education. With that standard in place, lawyers can present compelling evidence about what it will cost to provide an education system that will bring every child to that level. Plaintiffs are winning about 70 percent of these cases, says Steven Smith of the National Conference of State Legislatures. Court after court that evaluates the actual evidence has been able to discern pretty quickly how much stock to place in the political talking points you've heard about our public schools being so lavishly funded. After all, data-driven decision-making is what NCLB is all about. And, while we have problems with NCLB, this plus is worth keeping in mind.

Second, states sometimes squander more energy in what we've said might be described as "massive resistance" to adequacy decisions than in finding ways to comply. What a waste. While the administration of Governor Gray Davis spent $18 million fighting the lawsuit, a spokeswoman for Gov. Schwarzenegger said, "The governor believes that we should spend our time, energy and money fixing what is wrong with our schools and not fighting them." The North Carolina Supreme Court noted pointedly, "The time and financial resources devoted to litigating these issues over the past ten years undoubtedly have cost the taxpayers of this state an incalculable sum of money.... [O]ne can only wonder how many additional teachers, books, classrooms, and programs could have been provided by that money...."

Third, one argument from those who oppose these efforts strikes BoardBuzz as especially interesting. Critics argue that the lawsuits divert attention from other causes of student underachievement, such as lack of parental support, expectations, attendance, etc. They've got a point, there. Of course, whenever school leaders delicately make that same point about some of the more arbitrary features of federal and state accountability systems, they're accused of making excuses and believing that "not all children can learn." An acknowledgment that there are factors beyond school control is something we never hear from those who like to blame public education itself for every academic shortcoming. But that tune changes mighty quickly when the issue is giving schools the resources they need to succeed. All of a sudden, the quality of the school programs isn't the only issue after all.

The Campaign for Fiscal Equity has a convincing and reader-friendly resource, here, that you can share the next time you're confronted with the "We'd only be throwing money at the problem" kind of thing. Its title says it all: "Of Course Money Matters: Why the Arguments to the Contrary Never Added Up."

Now for a moment before the mirror. If these lawsuits succeed, school boards will have an even greater obligation to ensure that public resources are invested wisely and efficiently. Nothing could be more harmful to America's children than this scenario: The courts recognize that significantly more funding is needed, and they insist upon it; The governors and legislators finally to face up to the admittedly difficult task of fulfilling their responsibilities; But then school districts are not able to show convincingly that the money is handled carefully and the added investment pays off in student outcomes. Even with more funding, this challenge won't be easy. But we're confident. Just give our schools what they need to do the job.

Posted August 12, 2004 12:00 AM