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Requiring States to Offer a Quality Education to All Students

By Molly A. Hunter

Many high schools in Californias low-income and minority communities do not


offer the curriculum students must take just to apply to the states public universities. In
Texas, 53 percent of newly hired teachers in 2002 were not certified. A high school
laboratory science course is required to graduate in New York, but 31 New York City
high schools have no science lab. The vast majority of low-income students, English
language learners, minorities, and students with disabilities in Kansas are enrolled in the
school districts that receive the least per-pupil funding from the state. In South Carolina,
annual teacher turnover rates exceed 20 percent and graduation rates fall between 33 and
57 percent in eight low-wealth, rural, mostly minority school districts.

Inadequate and inequitable school funding underlies these shocking shortfalls in


educational resources and the limited opportunity and underachievement they cause. It is
not surprising, therefore, that more than twenty states are currently defending themselves
in lawsuits that claim state education finance systems are unconstitutional. Moreover, the
plaintiffs have won most of the recent decisions, including state high court rulings, in
Kansas, Montana, North Carolina, Arkansas, and New York.

These cases are the progeny of Brown v. Board of Education. When planning the
Brown legal strategy, the plaintiffs hoped that desegregation would quickly lead to equal
educational opportunity. Brown led to significant progress, and the black/white
achievement gap decreased by half in the 1970s and 1980s. But equal opportunity
remains an unrealized goal. While desegregation held center stage immediately after
Brown, certain civil rights attorneys observed that most minority children attended
schools in low-wealth urban or rural communities that were unable to generate sufficient
funds to support a quality education.

State funding statutes that favored affluent communities, with their high property
values, caused limited educational opportunities for many minority students. Since the
late 1960s, plaintiffs began filing legal challenges to state school funding systems. Their
goal was, and still is, full realization of the equal opportunity promise of Brown.

Texas plaintiffs filed the first of the modern school funding cases in federal court,
claiming that the states funding system violated the equal protection clause of the U.S.
Constitution. However, the U.S. Supreme Court held in Rodriguez v. San Antonio, 411
U.S. 1 (1973), that education is not a fundamental right, noting that the Constitution does
not mention education. In his dissent, Justice Thurgood Marshall encouraged plaintiffs to
go to state courts under their state constitutions. The Texas plaintiffs did, and they won.

In the 1970s and 1980s, school funding cases based on state equal protection
clauses were common, but the defendant states won about two-thirds of those cases.
Since 1989, however, plaintiffs have won a large majority of the decisions. Many of these

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victories resulted, in part, from a shift in legal strategy away from equity claims to claims
emphasizing the right to an adequate or quality education. The shift to quality also led
courts in several states to distinguish earlier equal protection cases in which the
defendants had prevailed. The quality education cases challenge state funding statutes
under state constitutional education provisions.

State Constitutions and Learning Standards

All 50 states have education articles in their constitutions. Some of them were
adopted in the late eighteenth century, when our nation was founded. They call for
legislatures and governors to cherish learning and were based on the deeply held belief
that knowledge and civic virtue were essential to the preservation of freedom and
individual rights.

Many states added education articles to their constitutions in the late nineteenth
century as a result of the Common School movement, which sought equal educational
opportunity for the children of new immigrants and workers in a mixed industrial and
agricultural age. The description by the delegates at the Kentucky constitutional
convention in 1891 epitomized these egalitarian ideals. Their intent was to ensure that
the boys of the humble mountain home stand equally high with those from the mansions
of the city. There are no distinctions in the common schools, but all stand upon one
level.

The movement engendered an intense political struggle. Opponents believed that


education gave rise to futile aspirations on the part of those born to inferior positions
and that class distinctions made for social cohesion. N. EDWARDS & H.E. RICKEY, THE
SCHOOL IN THE AMERICAN SOCIAL ORDER (1963). Nonetheless, the movement prevailed
and led to new education articles and endorsements for public education. One such
statement, from New Yorks constitutional convention of 1894, affirmed the crucial role
of public education: Whatever may have been the schools value heretofore . . . their
importance for the future cannot be overestimated. The public problems confronting the
rising generation will demand accurate knowledge and the highest development of
reasoning power more than ever before. This rings equally true today. More important,
the education articles provide the grounds for legal advocacy on behalf of low-income
and minority schoolchildren to secure the opportunity to get the knowledge and reasoning
power they need.

While school funding and quality cases find solid footing in the state education
articles, recent developments in education reform strengthen the plaintiffs ability to build
evidence of constitutional violations. During the last fifteen years, virtually all states have
developed student learning or academic content standards, in response to the perceived
need to improve schools in the face of global competition. Although some states have
done a better job than others, broadly speaking, the standards are constructed to reflect
what students need to know and be able to do to function as capable citizens and workers
in this century. Therefore, these standards serve to bring those state constitutions
education articles into the current era.

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The standards articulate modern, substantive, and detailed goals of educational
attainment that courts can apply to clauses that require a thorough and efficient system
of common schools, or a suitable education. When litigation asks a state court to
interpret an education article and assess whether the state is fulfilling its duty under that
provision, the court can use the student learning standards as benchmarks for critical
portions of the its analysis. Moreover, the federal No Child Left Behind Act (NCLB)
adds more weight to the importance of state standards because it sets high performance
goals that must be aligned with each states learning standards.

Typically, states try to align curricula, student assessments, and teacher


preparation with the student learning standards and use test scores and other measures,
such as graduation rates, to report whether students are reaching those standards.
Unfortunately, few states have also tried to align their funding systems with the
standards. This means that the quality education plaintiffs mentioned above can use the
standards when they present evidence of insufficient educational inputs and
outcomes. For example, overcrowded or dilapidated facilities may prevent students
from having access to the science labs and equipment they need to meet that states
learning standards. Uncertified teachers in classrooms, missing curricula, and the absence
of basic services necessary to enable students to reach the standards are evidence of
inadequacies for which plaintiffs also establish a causal link to the state funding system.

Plaintiffs also present evidence of inadequate outcomes for students. Outcome


measures include below-grade-level test scores, low graduation rates, and high
remediation rates among students who graduate and go to college. Compared to state
standards, as reflected in the states own assessments, students are clearly not receiving a
suitable or a sound basic education for this century.

Plaintiffs have filed school funding cases in 45 of the 50 states. Some states have
witnessed multiple cases. In Texas, for example, plaintiffs won years ago, but a recent
follow-up case claimed that the funding system passed into law to remedy the earlier
litigation had become unconstitutional. The Texas Supreme Court agreed in November
2005.

When Plaintiffs Win

When the plaintiffs win such cases, the spotlight shifts to the remedy. What
comprises a constitutionally sound and compliant school funding system? The quality
education cases and the learning standards of each state have, in a sense, turned funding
questions on their head.

In the typical approach to education funding, the legislature and governor first
determine how much money is available, without a thorough analysis of educational
needs. Then they argue over and compromise on the distribution of that money among
the states school districts. This has often led to an inequitable equilibrium, in which
the allocation of resources represents the balance of political power in the state, usually
heavily weighted in favor of suburban school districts.

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However, if the starting point is the states student learning standards, an entirely
new set of questions emerges. To align the funding system with the standards, legislators
must ask:

What capacitiesthat is, what resources and conditions, what


programs and servicesdo schools need to enable their students to meet the
learning standards?
How much funding is required to build and maintain the required
capacities?
What kind of state education finance system would best deliver the
funding and capacity to all schools?

To answer the capacity questions, states have identified education essentials.


They have increasingly turned to cost studies to obtain information on the funding needed
to support these essentials.

Teaching quality heads everyones list of essentials. Well-prepared teachers,


mentoring for new teachers, and decent teaching conditions are crucial to student
learning. For low-income and minority students especially, research shows quality
teaching has an enormous positive influence. Other resources widely acknowledged as
essential include adequate facilities, small class size in the early grades, effective
programs for English language learner students and students with disabilities, and
qualified principals. Laboratories, textbooks, and supplies are obvious needs.

A more recent essential, but one that seems to be gaining ground rapidly, is high-
quality preschools. Evidence of their effectivenessimproving student achievement,
reducing delinquency and teen pregnancy, increasing earnings and home ownership,
etc.is nothing short of phenomenal. The economic payback to society highly
recommends increased spending on high-quality preschools.

Identifying essentials often occurs as part of performing an education cost study.


Since 1991, over forty studies have been conducted in over thirty states. Usually, the
states initiate these studies, but education advocacy organizations have commissioned
several of them. In five states, courts have ordered the states to conduct studies as part of
their remedial orders in school funding cases. NCLB has added another reason for
education cost studies. Its unprecedented goal of 100 percent of students reaching state
standards would require an unknown level of additional funding and possibly other
dramatic changes.

Whatever the study results, attaining full implementation from the legislature can
be difficult. Some legislatures have arbitrarily reduced cost figures and managed to
perpetuate inequities. School districts also must carefully use any increased funding on
the most effective strategies for improving student achievement.

Vision from the Courts

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Recently, courts in New York, Texas, North Carolina, and Kansas have
articulated visions for their states future that depend on funding for quality public
schools. According to these courts, we are at a fork in the road. If we adequately fund for
quality education, especially considering minority, immigrant and economic status, we
will preserve freedom and democracy and foster prosperity. If we do not, we will cause a
decline in Americas potential for social, civic, and economic success.

In New York, the trial court held that the constitution requires the state to provide
the opportunity for all children to learn the foundational skills that students need to
become productive citizens capable of civic engagement and sustaining competitive
employment. Campaign for Fiscal Equity v. New York, 719 N.Y.S.2d 475, 487 (Sup. Ct.
N.Y. Cty. Jan. 10, 2001). The court defined civic engagement to include acting as a
knowledgeable voter with the intellectual tools to evaluate complex issues, such as
campaign finance reform, tax policy and global warming, and serving as a capable juror
with the skills to determine questions of fact concerning DNA evidence, statistical
analyses, and convoluted financial fraud. Id. at 485. Competitive employment does not
mean low level service jobs, the court said. Rather, it requires higher level skills and
knowledge.

The Texas trial court observed that accountability standards there have risen
through the implementation of more stringent tests and the dramatic increase of federal
mandates in NCLB. In addition, Texass population is growing, which additionally
burdens the schools. This is especially true given the demographics of the changing
population, which is heavily minority, low income, and nonEnglish speaking, doubly
significant now that NCLB has required that districts close achievement gaps. West
Orange-Cove v. Nelson, No. GV-100528 (Dist. Ct. Travis Cty. Nov. 30, 2004).

The North Carolina Supreme Court found that students in low-wealth rural
districts were failing at alarming rates and that it was necessary to hold[] the State
accountable for the many programs and services not being provided to these students.
Hoke County Board of Education v. North Carolina, 599 S.E.2d 365, 389 (N.C. 2004). It
declared: The children of North Carolina are our states most valuable renewable
resource, emphasizing the duty of the states courts to act to prevent further harm to
students. Id. at 377. It called for immediate compliance with constitutional requirements,
holding that [w]e cannot . . . imperil even one more class unnecessarily. Id.

The Kansas Supreme Court, in Montoy v. State, 112 P.3d 923, 940 (Kan. 2005),
cited the North Carolina decision approvingly and further stated that we cannot continue
to ask current Kansas students to be patient. The time for their education is now.

Molly A. Hunter is Director of the National Access Network_ at the Campaign for Fiscal
Equity in New York City. [Auth: Fill out a bio of one or two brief sentences.]

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