Educational Jujitsu: How School Finance Lawyers Learned to Turn Standards and Accountability Into Dollars

In their continuing efforts to extract more school spending from state legislatures through the courts, advocacy groups recently acquired a powerful new weapon: the standards movement. Their success provides yet another example of the law of unintended consequences. Recently, plaintiffs in two prominent cases, in New York and North Carolina, successfully used the states' standards and performance expectations as evidence of the states' failure to provide an adequate education to all students, especially poor and minority students. Judges in both states ordered the legislatures to rework the formulas used to distribute state funds to local school districts, The New York case is currently in limbo after a state appeals court reversed the trial court's decision in June 2002. This development marks the latest, and perhaps the most ingenious, turn in a run of litigation that spans almost three decades. Ever since the U.S. Supreme Court, in the 1973 San Antonio Independent School District v. Rodriguez case, declared that funding disparities among local school districts were of no federal concern, plaintiffs have pinned their hopes on the education clauses in state constitutions. State constitutions usually require the states to provide their residents with a "thorough and efficient" or "sound basic" education, What this language means--whether it mandates equal funding or simply a minimum level of funding necessary for a sound basic education"--has been the central issue in the past 12 years in 28 major lawsuits, of which the plaintiffs have won 18. The chief target of this litigation is the long-standing practice of funding schools mainly with local property taxes. This practice contributes to per-pupil spending differences among school districts that are sometimes stark. Well-to-do neighborhoods with high property values can afford top-notch facilities and salaries high enough to attract good teachers. Low-income areas, meanwhile, often struggle just to put a certified teacher in every classroom. Early state-level lawsuits--the so-called "equity" wave of litigation-asked state courts to mandate that all children have a right to the same level of education, as measured by per-pupil spending. Such lawsuits met with limited success, however. For every lawsuit that succeeded, another failed. Moreover, even successful litigants were rarely able to win substantial increases in spending equity. In addition, equity lawsuits began to lose support from many of the nation's large urban school districts, even as they continued to struggle mightily with delivering basic educational services. Many urban districts realized that, despite the obvious challenges they confront in serving children, gaps in educational spending between urban and nonurban districts are not the key problem. Indeed, in most states urban school systems benefit from spending levels that exceed state averages. As a result, in successful equity-based school finance lawsuits, urban schools stood to lose or, at best, not to gain additional resources. The Emergence of Adequacy In 1989 the world of school finance litigation changed in a way that welcomed urban districts back into the fold. Many observers point to a 1989 decision by the Kentucky Supreme Court, Rose v. Council for Basic Education, as ushering in the "adequacy" theory of school finance litigation. Unlike suits based on equity, which sought to close spending gaps between high-and low-income districts, lawsuits based on adequacy challenge state school finance systems not because some districts benefit more than others, but because some districts provide education of miserable quality. The question for the courts then became how to define adequacy. Enter the standards movement. The states themselves have established the levels at which they expect schools and students to perform. Persistently underperforming schools in some states are identified as "low performing" and are subject to additional external supervision. …