Beyond School Finance: Refocusing Education Reform Litigation to Realize the Deferred Dream of Education Equality and Adequacy

• Publication year: 2013

Beyond School Finance: Refocusing Education Reform Litigation to Realize the Deferred Dream of Education Equality and Adequacy

Jared S. Buszin

BEYOND SCHOOL FINANCE: REFOCUSING EDUCATION REFORM LITIGATION TO REALIZE THE DEFERRED DREAM OF EDUCATION EQUALITY AND ADEQUACY

Abstract

The academic achievement gap between poor, minority students and their wealthier white peers has been one of the most troubling and persistent policy problems in the United States throughout its history. For the past forty years, education reformers have turned to the courts to increase educational opportunities for minority and impoverished children by increasing their access to funding. Success in court has been mixed. While the Supreme Court's decision in San Antonio Independent School District v. Rodriguez foreclosed the possibility of a federal right to equalized education expenditures, education reform plaintiffs in many states have been able to secure a state constitutional right to equalized education funding. Yet, despite these judicial victories, education reformers have failed to achieve their ultimate goal of equalizing educational opportunity. A substantial achievement gap that cuts along racial and socioeconomic lines still exists. Thus, the focus on disparities in education expenditures appears misplaced.

This Comment proposes that litigants should redirect their attention to challenging inequitable or inadequate distributions of skill-based education inputs at the local level. This new approach is superior to the current focus on school finance challenges because researchers have increasingly found that skill-based inputs, such as teacher quality, are substantially related to improved academic outcomes. The approach this Comment proposes is also superior to finance suits because courts should be more receptive to these locally focused challenges, which raise fewer justiciability concerns than school finance suits. Accordingly, these new claims have the potential to lead to greater success in the courtroom and the classroom.

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Introduction............................................................................................1615

I. Forty Years of School Finance Litigation.............................1617

A. The First Wave: Equal Protection Claims Under the U.S. Constitution .............................................................................. 1618
B. The Second Wave: Equal Protection Claims Under State Constitutions............................................................................. 1619
C. The Third Wave: Adequacy Claims Under the Education Articles of State Constitutions .................................................. 1621
D. Legal Barriers to Plaintiffs: Justiciability Concerns ................ 1624

II. The Failure of Finance Litigation to Eliminate Educational Inequality and Inadequacy...............................1627

A. Persistent Educational Inequality and Inadequacy in the United States ............................................................................. 1627
B. The Tenuous Link Between Money and Academic Achievement.............................................................................. 1630

III. Shifting the Focus of Education Reform Litigation to Skill-Based Education Inputs...................................................1632

A. The Relationship Between Teachers and Student Achievement .............................................................................. 1633
B. A Policy that Unequally Distributes Skill-Based Inputs: "Last in, First out"............................................................................. 1635
C. Successful Litigation: Reed v. State ......................................... 1638

1. Factual Background........................................................... 1639
2. Judicial Analysis................................................................. 1641
3. Remedy and Aftermath ....................................................... 1643

IV. The Viability of Reed-Like Challenges Beyond California 1644

A. States that StruckDown Education Finance Schemes on Equal Protection Grounds........................................................ 1645
B. States that Struck Down Education Finance Schemes as Violative of State Education Clauses........................................ 1646
C. Diminished Justiciability Concerns.......................................... 1648

V. Remedying Disparities in Skill-Based Education Inputs......1652

A. Preference for Declaratory Relief ............................................ 1653
B. The Danger of Delayed Reform and the Potential Need for Injunctive Relief........................................................................ 1654

Conclusion................................................................................................1656

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Introduction

Education inequality and inadequacy have plagued American society for years in a phenomenon that is commonly referred to as the achievement gap.¹ This academic achievement gap cuts along racial and socioeconomic lines, and it appears to be growing wider.² Poor, minority students continue to perform academically at much lower levels than wealthier, white students.³ While publicly provided education has traditionally been seen as an equalizing force between the rich and poor, analysis of the achievement gap suggests that the current public education system is having the opposite effect.⁴ Although poor black and Hispanic students often enter school less prepared than their white peers, the gap between these groups actually increases over the course of a student's academic career.⁵

The idea that the achievement gap widens while students are receiving their formal education seems counterintuitive. However, it becomes less surprising when one considers that poor, minority students generally are taught by the least qualified teachers and are put in classes that teach the least challenging curriculum.⁶ The resulting achievement disparity is shocking. As one education policy organization observed, "17-year-old African American and Latino students have skills in English, math, and science similar to those of 13-year-old Whites."⁷

Education reformers have often turned to the courts for help in closing this achievement gap.⁸ In pursuit of this goal, reform-oriented plaintiffs have had an almost single-minded focus in their litigation over the past forty years—

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increasing the amount of funding available to educate poor, minority students.⁹ However, their dogged persistence has failed to achieve equity and adequacy, despite numerous judicial decisions in their favor.¹⁰ Minority students in the twelfth grade still perform academically at the level of white students in the eighth grade.¹¹ This is true even in states where education reform plaintiffs have won major judicial victories that led to increased education spending for poor, minority students.¹²

The fact that the achievement gap persists in states where school finance litigants have won judicial victories suggests that more money does not ensure greater educational outcomes. For that reason, this comment challenges the assumption that the best way to improve academic achievement and reduce inequality is through education finance litigation. Rather than maintain a single-minded focus on statewide education appropriations, this comment argues that education reform litigants should shift their attention to challenging local policies that cause an inequitable or inadequate distribution of skill-based education inputs, such as teachers. The widely used school district policy of laying off teachers based exclusively on lack of seniority is an example of one such policy that education reform litigants should challenge. This new litigation approach is advisable because research increasingly shows that teachers are the most important variable in closing the achievement gap between middle-class and poor students.¹³

Education reform litigants can use state constitutional jurisprudence developed in school finance cases to bring these types of claims throughout the country. This may even be true in states that have found finance challenges nonjusticiable on the grounds that finance claims inappropriately require courts to substitute their judgment for the legislature's concerning statewide appropriations. Because the claims this comment proposes are focused on local school districts and do not directly challenge statewide legislative appropriations, reformers may enjoy success in states that have held that school finance challenges are nonjusticiable.

This Comment proceeds in five parts. Part I discusses the different approaches education reform litigants have taken over the past forty years in

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challenging state education finance systems, and it introduces the federal and state constitutional jurisprudence related to education rights. Part II demonstrates the failure of school finance litigation to improve the academic achievement of poor, minority students, suggesting that a focus on increasing education expenditures is insufficient to achieve equality and adequacy in education.

Part III presents evidence that skill-based education inputs are the most important variables in improving academic outcomes and argues that education reform litigants should focus their efforts on challenging policies that result in unequal or inadequate distributions of these resources. In particular, Part III offers seniority-based teacher layoffs as an example of a policy that education reform litigants should challenge, and it concludes by discussing an instance where this policy was successfully enjoined in California. Part IV then analyzes whether litigation similar to the California suit would be viable in other states, given that most education rights suits are now based on state constitutional provisions, which may differ significantly between states. Part IV ultimately argues...