Courthouses vs. statehouses?

• Author: Koski, William S.
• Position: Unconstitutionality of school funding under separation of powers principles

SCHOOLHOUSES, COURTHOUSES, AND STATEHOUSES: SOLVING THE FUNDING-ACHIEVEMENT PUZZLE IN AMERICA'S PUBLIC SCHOOLS. By Eric A. Hanushek & Alfred A. Lindseth. Princeton and Oxford: Princeton University Press. 2009. Pp. xviii, 411. $29.95.

COURTS & KIDS: PURSUING EDUCATIONAL EQUITY THROUGH THE STATE COURTS. By Michael A. Rebell. Chicago and London: University of Chicago Press. 2009. Pp. xiii, 192. $35.

INTRODUCTION (OR, THE HYPE)

Just over twenty years ago, the Kentucky Supreme Court declared the commonwealth's primary and secondary public-education finance system--indeed, the entire system of primary and secondary public education in Kentucky--unconstitutional under the "common schools" clause of the education article in Kentucky's constitution. (1) That case has been widely cited as having ushered in the "adequacy" movement in school-finance litigation and reform, in which those challenging state school-funding schemes argue that the state has failed to ensure that students are provided an adequate education guaranteed by their state constitutions. (2) Since the Rose decision in Kentucky, some thirty-three school-finance lawsuits have reached final decisions in thirty-one states. (3) For plaintiffs, the campaign has been relatively successful in court, as school-funding schemes in twenty-two states have been declared unconstitutional. (4) Recently, however, a few courts seem to be taking a more cautious approach, either declining to become embroiled in school-finance lawsuits or declaring the school-finance systems constitutional and relinquishing jurisdiction. (5) Yet the pace of litigation appears unabated. (6) In light of the overall success of the adequacy movement in court, the wariness with which some courts have begun to approach the matter, and the continued press for school reform through the courts, it is fair to say that the adequacy-finance-litigation movement has matured and it is time to take stock of it. Two recent books--Eric Hanushek and Al Lindseth's Schoolhouses, Courthouses, and Statehouses (7) and Michael Rebell's Courts & Kids (8)--do just that. And they reach very different conclusions (at least on the face of it).

If one were to stage a bout between contenders for the school-finance-reform-litigation heavyweight championship, it would be nearly impossible to find a better match than Rebell vs. Hanushek and Lindseth. (9) In the plaintiffs' corner and fighting for an appropriate role for the courts is Michael Rebell. A professor at Columbia University's Teachers College, Rebell is a battle-tested veteran of school reform litigation, having sued the New York Public Schools in the 1980s for its failure to ensure that children with disabilities had access to an appropriate education (10) and, more recently, having successfully challenged New York's failure to provide a sound, basic education to the children of low-income communities in the state (Rebell, pp. xii-xiii). Outside of the courtroom, Rebell has advanced the adequacy movement by developing his theory of "public engagement" in the education-reform process (Rebell, pp. 97-103), studying the role of courts in institutional (school) reform, (11) and establishing a network of researchers, policy-thinkers, and lawyers to collaborate in advocating school-finance reform. (12)

In Courts & Kids, Rebell makes the case for the authority and responsibility of the courts to protect the constitutional rights of children who have been denied a sound, basic education. Rebell believes not only that it is incumbent upon state supreme courts to recognize and enforce the educational rights of children (Rebell, Chapter Two), but also that courts in educational-finance litigations have been effective in enhancing equality of educational opportunity for all children (Rebell, Chapter Three). Looking to the future of judicial involvement in educational policy, however, Rebell proposes a nuanced model--what he calls the "successful remedies" model (Rebell, p. 57)--of judicial engagement that establishes a "functional separation of powers" among the three branches of government, "in which the judicial, legislative, and executive branches working together can deal effectively with difficult social policy issues like providing a meaningful educational opportunity for all children" (Rebell, p. 7).

In the defendants' (read: states') corner and fighting against court intervention in matters of school finance are Eric Hanushek and Al Lindseth. Hanushek is a senior fellow at the Hoover Institution at Stanford University and is widely regarded as a leading figure in the study of the economics of education. (13) Perhaps more salient, Hanushek has testified on behalf of state defendants in numerous educational-finance-reform litigations. (14) Hanushek is a leading proponent of performance-based school funding and accountability and is known for his position that "differences in either the absolute [public education] spending level or spending increases bear little or no consistent relationship to differences in student achievement" (Hanushek & Lindseth, p. 54). Lindseth, a partner with the Atlanta-based law firm Sutherland Asbill & Brennan, has represented states in school-finance lawsuits in various states, including New York, Florida, and North Dakota, and over the last twenty-five years has advised governors, elected officials, and state education leaders on topics related to school finance and reform (Hanushek & Lindseth, p. xv).

Although the two books were not explicitly written to debate each other, Hanushek and Lindseth's Schoolhouses, Courthouses, and Statehouses offers the counterpunch to Rebell's optimism regarding judicial intervention in matters educational. Hanushek and Lindseth start with the dual arguments that public education in the United States, on measures ranging from global competitiveness to a yawning achievement gap, "faces real problems" (Hanushek & Lindseth, p. 23) and that "increased spending [on public education] has yielded little in terms of improved student achievement" (Hanushek & Lindseth, p. 50). They then focus their ire on the courts, who they argue have overreached and assumed an "all-encompassing" (Hanushek & Lindseth, p. 83), constitutionally inappropriate (Hanushek & Lindseth, p. 84), and institutionally ineffective (Hanushek & Lindseth, pp. 118-70) role in educational policymaking. And they reserve some criticism for the methodologies used by expert consultants in designing and "costing out" educational-finance reforms, arguing that such methods only "give the illusion of providing valid, useful, and reliable information." (15) Rather than the continued press for reform through the courts or the use of scientifically suspect costing-out studies to drive school-finance reform, Hanushek and Lindseth propose a "performance-based" school-funding model that directly links funding to improved student performance (Hanushek & Lindseth, Chapter Eight).

But the authors do not disagree on everything. In Part I of this Review, I identify those areas of educational-finance policy and reform in which the authors are in agreement. Part II highlights the authors' areas of difference and critiques the arguments they advance for their respective causes. In Part III I explore two areas--Hanushek and Lindseth's substantive school reform proposals and Rebell's institutional choice and process arguments--in which the authors appear to be talking past each other, though not incompatibly.

Part IV concludes by proposing a new grand bargain that recognizes the authors' convergence over several key issues, agrees to disagree on one or two issues, and calls for reasonable concession on both sides. Is it possible that these longtime partisans could find common ground in the educational-finance-and-policy-reform discussions and move forward? Could we ever call this fight a draw?

1. AREAS OF AGREEMENT (OR, THE GLOVE TAP)

   Let there be no doubt that the authors share one common value: all have a bona fide concern about the achievement of American students and the importance of that achievement both to the success and well-being of the individual and to the economic progress of the nation, the functioning of our civic institutions, and the continued cohesion of our society. Hanushek and Lindseth's focus on the economic well-being of citizens and the nation couldn't be more clear: "A good education has always been the key to enabling even the poorest of our citizens to achieve the American Dream," and the quality of a person's education "has an impact on the whole of society, affecting not only the standard of living enjoyed by our citizens, but also the fairness of our economic and social systems" (Hanushek & Lindseth, p. 10). Perhaps more surprising is the authors' agreement that it is not only the absolute achievement of American students that matters, but also the relative achievement of subgroups of children: as Hanushek and Lindseth put it, "[a] major problem facing the nation is the significant achievement gap between middle-class and white children on the one hand and poor and minority children on the other" (Hanushek & Lindseth, p. 10).

   Emblematic of the maturation of school-finance litigation and research, the authors also appear to agree that "money matters," so long as it is spent efficiently on the appropriate resources. For years, a standard state defense against constitutional challenges to their school-finance systems and a routine subject of judicial inquiry was that plaintiffs could not prove causation because there was no evidence that educational spending affected student achievement. (16) While it appears that the cost-quality debate has been settled in the broadest sense few would seriously contend that educational resources have no effect on student outcomes--the debate has shifted to the more nuanced questions of which educational resources affect student attainment and achievement and how we can design a school-finance system...