Can we sue our way out of this mess?
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.