Can we sue our way out of this mess?

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Even casual readers of this blog are familiar with the disheartening numbers. Adjusting for regional wage differences, California spends $2,856 per student less than the national average, ranking us 47th among states, and some $6,000 less than New York. This translates into real resource differences, as California ranks 49th in teacher-student ratios, 49th in guidance counselors, and 50th in librarians. And although we could quibble about causality, it can’t be a coincidence that children in our educational-resource-deprived fourth grades rank 47th in the nation in reading on the NAEP, while eighth graders come in 46th in math.  Not only is California’s school finance system insufficient to meet the needs of our children, it is irrational and completely disconnected from the state’s standards-and-accountability system.

To address this crisis in school funding, two lawsuits have been filed against the state and governor: Robles-Wong v. California and Campaign for Quality Education v. California. (Grain-of-salt alert: I am co-counsel for the 62 plaintiffs/children in the Robles-Wong litigation.) The lawsuits request that the courtstate’s school funding system and order the Legislature and governor to live up to their constitutional duties and come up with a new funding system that will ensure children their fundamental right to an education. Given that California continues to muddle through this Great Recession, that Sacramento can barely pass an annual budget, and that the school funding problem has been well known for years, some have questioned whether an Alameda Superior Court judge will have any better luck in fixing the broken system. The L.A. Times raised an editorial eyebrow here.

Rick Hanushek, Hoover Institution Fellow and widely respected expert in the economics of education, devoted much of his recent book, Schoolhouses, Courthouses, and Statehouses, to arguing that courts have no business meddling in matters educational. And, most recently, the state has filed a motion to dismiss the Robles-Wong lawsuit on the grounds that judicial review of the state’s educational funding system would violate separation-of-powers principles. It’s a fair question to raise and, although I don’t plan on litigating this case on the web, let me lay out the case that California courts can and must play an effective role in educational finance reform.

The constitutional right to an education and the judiciary’s duty to enforce that right

Although the U.S. Constitution says nothing about education, all state constitutions (save Mississippi) contain a provision requiring the state to establish an educational system. At least 25 state high courts that have considered the question have found that these constitutional Education Articles establish a right to an education that is judicially enforceable, while only seven have declined to rule based on separation-of-powers concerns.  California’s constitution provides that “[a] general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral and agricultural improvement” and that “[t]he Legislature shall provide for a system of common schools by which a free school shall be kept up and supported . . . .”  Although some might argue that this is mere hortatory language best left to legislative discretion, and although this language has not yet been used to strike down California’s finance system, the California Supreme Court has held that this language provides children with a “fundamental” right to an education and has already declared the state’s school funding scheme unconstitutional in the Serrano litigation almost 40 years ago. California courts have ample constitutional text and case law precedent to declare the state’s funding system unconstitutional. But some will argue that courts should still not intervene because they lack the expertise and have proven ineffective as reformers in the past. Let me address those objections.

The failure of educational politics and policy-making in California

Since at least the 2000 filing of the Williams v. California litigation that demonstrated that many schools lacked even the basic necessities, through the 2007 Governor’s Committee on Educational Excellence” report which concluded that “California’s K through 12 education system is fundamentally flawed,” the Legislature and governor have been on notice that California schoolchildren are being denied the educational opportunity they deserve.  Yet the state has resolutely failed to act.  This shouldn’t be surprising, and it is likely not malevolent; rather, it is the predictable outcome of our political institutions.

Witness our current stalemate over the state budget. Due to the need for a two-thirds supermajority to pass a state budget, minority interests can block meaningful finance reform. Moreover, because our legislators are term-limited, many lack long-term staying power and are unable to develop the expertise to marshal a complex finance reform package. This leaves our always-campaigning legislators gun shy of proposing additional education spending (with the alleged specter of additional taxes not far behind). All of this means that even well-intentioned legislators are paralyzed by ballot-box politics.

Although our state court judges stand for occasional retention elections, they are nonetheless relatively sheltered from political pressures and can therefore make decisions that are not compelled by the political pressures the Legislature faces. Moreover, most judges serve for several terms and are rarely ousted from office for political reasons (yes, I remember Rose Bird, but that was the rare exception). Perhaps most important, the relative freedom from electoral politics allows courts to enforce the rights of minority interests (think English learners, children with disabilities) in the face of majoritarian politics.

Courageous action by other state courts paved the way for fundamental reform by providing legislators with the cover they needed to do the right thing. For example, in the wake of the landmark Rose v. Council for Better Educ. (1989), in which the Kentucky Supreme Court struck down the Commonwealth’s entire system of public schooling (the performance of which eerily resembles the Golden State today), the Legislature quickly overhauled its entire educational finance and service-delivery system. One prominent explanation for the prompt and effective action of the Legislature is that the court’s decision provided the necessary political “cover” to allow such dramatic reform.

School finance reform is also a long-term, dynamic process.  Given the short attention span of state legislatures that are forced to deal with the latest policy crisis, courts appear to provide the type of staying power required of such long-term school reform. In states ranging from New Jersey to Wyoming to Texas, long-term, episodic judicial attention has kept the state on the path toward reform, despite turnover in the legislatures and gubernatorial mansions.

All that said, the Robles-Wong plaintiffs are not asking the court to design and implement a new school finance system from the bench. Rather, plaintiffs ask that the matter be sent back to the Legislature with specific, though broad, parameters for constitutional compliance. The court would play its modest and appropriate role: that of ensuring constitutional compliance.

Does judicial intervention work?

Finally, some have argued that court-driven school finance reform does not “work.” Researchers who have addressed this complex issue (What are our measures for success? How do we control for other factors that influence those measures?) have reached some consensus on a number of issues and continue to disagree on others. A large body of research on equity finance litigations seems to suggest that successful equity lawsuits generally increased overall equity in school finance, increased the funding for the most disadvantaged schools, and created greater centralization of funding at the state level. Little is known about the effects those lawsuits had on student achievement. Research into modern adequacy litigation is much more hotly contested, with some researchers presenting data that such lawsuits have had little (or even negative) effect on student outcomes, while others point to contradictory evidence of success in raising student outcomes.

What can be said, however, is that in nearly all states in which plaintiffs have prevailed, state legislatures have reformed educational funding systems with at least the goal of improving the adequacy and/or equity of school funding. Wasn’t that the immediate goal of such lawsuits anyway? The longer-term success of California schools will depend on finding the right mix of reforms, but it is clear that school finance reform is a necessary condition for that success.

Bill Koski is the Eric & Nancy Wright Professor of Clinical Education, Professor of Law, and Professor of Education (by courtesy) at Stanford University. He is the founder and director of the law school’s Youth and Education Law Project and has represented hundreds of disadvantaged children and their families in educational equity, disability rights, and school-reform matters. Reflecting his multidisciplinary background as a lawyer and social scientist, Professor Koski’s scholarly work focuses on the related issues of educational accountability, equity, and adequacy; the politics of educational policy reform; and judicial decision-making in educational policy reform litigation.

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7 Comments

  1. Although it may not have prevented a lawsuit against the state for adequate school funding, AB 2217 (Strom-Martin), signed into law in 2002, would have required the state to develop a “quality education model”, including the educational costs necessary to provide the opportunity for a quality education to every student. This bill was never enacted. Governor Davis made appointments to the Quality Education Commission established by the bill. He was recalled and the new Governor Schwarzenegger rescinded those appointments. Instead he created a new Committee on Education Excellence, headed up by Ted Mitchell.That committee did not carry out the intent of AB 2217 which was to cost out what a California quality education would need.
    As a former chair of Assembly Education and Vice Chair of the California Master Plan for Education in 2002, I authored this legislation as a direct result of the two years of discussions in revising the masterplan.
    So, yes, our system of governance is broken when laws can be summarily ignored. Had the intent of this legislation been realized the state would, at the very least, have a better idea of the funding necessary to provide our students with a decent education.

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  2. Another lawsuit.  That will sure fix things!   Good luck, because it really doesn’t matter if you win or not.  Simply because the money won’t be there.  More than a few of us, know how Sacramento spends the money each year.   The biggest problem California faces is the huge population that takes more out than they put in.  The LAUSD spends $12,500 per pupil.  Mr. Lawyer, please take a look at the LAUSD fingertip facts and see who the majority ethnicity is?   Now take a look at the 2000 Census and see what the income for that particular ethnicity is and also take into account the average birth rate, for each woman.

    Do the math.  55% of this group doesn’t even pull in $4oK a year.  They also get to claim all their children and not pay any taxes, or in  many cases, get a refund!  So what you’ve got, is the largest group, not putting in anything for what their taking out of the system.  Add CALWORKS, Section 8, WIC and numerous programs and that is why California is broke.

    Don’t forget the huge movement of business’s to other states.  Add in our wonderful Service Economy (Poodle Groomers and Nail Salons) and you’ve got a recipe for fiscal disaster.  The State Democrats, Karen Bass and Steinberg are concerned with protecting the poor and the vulnerable in ‘the Safety Net’.  What is obvious to the 15% of the Taxpayers, who pay 85% of the taxes, is that the ‘Safety Net’ has become a huge trampoline.  With 12% of the population, we’ve got 33% of the Nation’s Welfare cases.   Best of luck with your frivolous lawsuit, the knowledgeable, know better.

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  3. “The longer-term success of California schools will depend on finding the right mix of reforms, but it is clear that school finance reform is a necessary condition for that success.”  If you mean that reforms and money have to work in tandem, agreed.  I hope you don’t mean taking the chance to follow in Kansas City’s footsteps.

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  4. The whole piece is based on false premise: “although we could quibble about causality, it can’t be a coincidence that children in our educational-resource-deprived fourth grades rank 47th in the nation in reading on the NAEP, while eighth graders come in 46th in math.”

    It is not a coincidence that our student are low achieving (e.g., on the NAEP) but it has little to do with spending per students.  Don’t believe me? No need to go through complex stats to show this. Just 3-5 years ago, prior to the current budget hole, California was much higher in spending per student, both in absolute numbers and in state ranking. And we were not #49 in student/teachers, or in number of counselors. Was our NAEP achievement any better? No, it was not. Is Massachusetts #1 in spending per students or in teachers/students? No, it is not. But it is #1 in achievement.

     
    It is not a coincidence because it has to do with wasteful financing (contracting only through union shops, inflated employee benefits and pensions, etc.) and ineffective pedagogical practices (Reading Recovery is still alive and well, Noyce Foundation is still peddling its wares, Calif. Math Project should have been defunded years ago, reclassifying ELL students as proficient is held ransom by interest groups, etc.)  I am not against equalizing financing across the state — no reason why LAUSD should get so much more (and waste so much more!) than any other district in the state. Except their political clout, that is.  But this has to do more with equity argument rather than with sufficiency argument.

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  5. Why don’t we revisit the Strom-Martin bill AB 2217?  Since public schools and their teachers are the scape goats for the mess,  let’s find out what it really cost to run a quality school.  Let’s find out what it really cost to turn a low performing school into a quality school.  Does any one really know?  We know that low lperforming school needs are totally different from a school in a higher economic environment.

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  6. No, Bill, you cannot sue your way out of this mess.

    In fact, if you want to start to solve the education finance problem, just look in the mirror. Yes, you and most of the other “experts” have muddied the waters with phony arguments that distort facts you want to use and ignore data that you do not want to use. There is a real peril that the adequacy lawsuits, if successful, will cause more harm than they create good.

    Let’s be clear that school districts in California are suffering financially. However, that suffering is not a result of the reality of the arguments being brought in the lawsuits. It is not OK that the state approves its budget two or three months after every school district adopts its budget, but the lawsuits aren’t about that.

    If you want to correct a problem, you first must identify it clearly. Then you must find the root causes of the problem and correct those deficiencies. It is very important to understand that the three main points of the adequacy lawsuits are basically incorrect.

    First, the special pleadings made in the comparisons of financial statistics in California schools with schools in other states are illegitimate. Ranking statistics may have some usefulness when the entities are similar, but comparing states (as equal entities) is a fool’s errand. Here’s a clue: the states are not equal. Further exacerbating the misrepresentation is the sleight of hand attempted by some “researchers” to move California’s numbers downward (to fulfill their own specific agendas). Dishonesty is too-polite a term to use to describe the attempted deception. When properly examined in any of the legitimate ways, the funding per student in California’s public education system is near the middle as compared to the rest of the United States.

    Second, you should know that funding per student in California public schools is actually a quasi-random occurence for every student in the particular class of district they are enrolled. Stated in this general way, the funding per student is “fair.” Making it more “fair” for more students requires understanding the statistics and specific attributes that describe the variations between the groups of districts and within each group of districts. Including County Offices of Education, there are at least seven different groups of districts in California. While the magnitudes of the offsets between each of the groups of districts may not be optimal, the offsets are in the directions that conventional wisdom would support. Specifically, high school districts are generally better funded than unified districts, which are generally better funded than elementary districts. Further, those large urban unified districts with big percentages of minority, socio-economically disadvantaged, and english learner students are funded best of all.

    It is worth mentioning that more than one hundred school districts in California might be classified as “high wealth” districts. (The definition I use is “revenue limit funding above $8000 per student;” this results in total funding per student in excess of $11,000.) While this may seem to be unfair to students in other districts, it is not; these districts serve only about 2% of the student population in California. Perhaps the Stanford School of Education (or at least one faculty member) has become blinded to reality because nearly one-half of the students in these districts are located so very close to Stanford.

    Finally, the so-called “equity issue” is completely misrepresented. I suggest that you examine the academic achievement of students in “low-funded” districts in California; you will be surprised by the strength of their results. Statewide there are also some remarkable success stories being written in public education, but alas, all we hear is the whining about how “your favorite group” may still be behind some other groups. Here is the reality you are missing: “Student achievement does not map with school finances, it maps with student demographics.” FYI, the most important demographic distinction with respect to student achievement is neither ethnicity nor socio-economic status.

    While public school revenues in California may be a complex and arcane financial system, the net result of all the rules, programs, and special set-asides is actually pretty simple. The school finance problem is not so much on the revenue side (the state legislature really hasn’t been helping here, though), but it is on the expense side. You are trying to fix revenues for an expense system that expects a 5% increase (or more) each year. It’s the expenses that are not sustainable. Until the compensation systems and expectations of employees in public education are brought under control, the school finance system in California will be a mess (and perhaps worse than it is today).

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  7. Just a comment about CalSTRS pension.    My wife receive her Modified Defined Benefit Program.
    A total of five years and she died 4-10-2009.  I am the survivor spouse.  I received the pension
    for 3 + years when it stopped.  The CalSTRS pension is cheating families.    STRS will be called  STARVING
    TEACHERS RETIREMENT SYSTEM.

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