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By Molly A. Hunter
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
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.
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.
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 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.
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.
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.
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.]