Achieving High Educational Standards for All Conference Summary (2002) / Chapter Skim
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Education, Adequacy, Democracy, and the Courts
Education, Adequacy, Democracy, and the Courts
Pages 218-268
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From page 218... ...
Supreme Court's 1973 holding in San Antonio Independent School District v. Rodriguez that education was not a fundamental interest under the federal constitution has led to an unprecedented era of constitutional activity by the state courts in rectifying inequities in state education finance systems.
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It also discusses a core constitutional definition of adequacy that has emerged from these cases in recent years. Forged through an implicit standards dialogue with legislatures and state education departments, this core constitutional concept defines the purpose of an adequate education in terms of preparation for civic participation and for the competitive job market; emphasizes the importance of relating constitutional requirements to contemporary needs; is pegged at a "more than minimal level"; and guarantees educational opportunities rather than specific educational outcomes.
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Bradley,~° the Court held that predominantly white suburbs would not be required to participate in metropolitan-area desegregation schemes, in the absence of evidence that these districts had, in the past, intentionally discriminated against minority students. Taken together, these rulings meant that the vast majority of black and other minority students in the United States would continue to attend segregated schools with inadequate educational resources.
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Rooted in the traditional pattern of local control of schooling in America, most state systems required much of the funding for public schools to be obtained from local property taxes, a method that inherently disadvantaged students who attended schools in areas that had low property wealth. Responding to this problem, several legal scholars developed constitutional theories that sought to equalize the funding capacity of all local school districts.~3 These theories were tested in a number of state and federal litigations beginning in the late 1960s.
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He also noted that the Supreme Court's previous wealth discrimination cases had dealt with situations involving an "absolute" deprivation of the right at issue, rather than the type of "relative" deprivation at issue here.~9 Next, although not denying the importance of education in modern society, the Court emphasized the absence of any specific reference to education in the federal constitution and rejected the argument that education is essential to the effective exercise of First Amendment freedoms like the right to vote. Justice Powell set forth a "slippery slope" argument, noting that if some level of education were to be considered a sine qua non for the exercise of political rights under the federal constitution, similar arguments could be made that "the ill-fed, ill-clothed, and ill-housed are among the most ineffective participants in the political process."20 Having denied the plaintiffs' calls for strict scrutiny based on the poverty of the plaintiffs and the fundamentality of education, the Court held that the Texas funding scheme was "rationally related" to the legitimate governmental interest of achieving a "large measure of participation in and control of each district's schools at the local level." Rejecting the dissent's argument that lack of funding precluded poor districts from exercising any meaningful local control, the majority held that "some inequality" in the ability of local residents to make educational choices affecting their children "is not alone a sufficient basis for striking down the entire system."22 Justice Powell's decision was supported by only a 5-4 majority.
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that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.26 Thus, the majority decision implicitly left open the possibility of reconsidering this issue and taking some remedial action if, in a future case, it were to be established that students were being deprived of the type of "basic minimum" education the Court assumed that every Texas child was receiving. In fact, the Court went out of its way to reiterate this point in a later case when it stated that it still had not "definitively settled the questions whether a minimally adequate education is a fundamental right and whether a statute alleged to discriminatorily infringe that right should be accorded heightened equal protection review."27 Despite its denial of relief to the plaintiffs in Rodriguez, the majority also noted the apparent need for reform of an education finance system that "may well have relied too long and too heavily on the local property tax," and it went out of its way to state that "this Court's action today is not to be viewed as placing its judicial imprimatur on the status quo."28 The Court clearly hoped that both scholars "and the legislatures in the various states" would come up with "ultimate solutions"29 to these complex problems.
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Four years earlier, it had reviewed a fiscal equity litigation involving disadvantaged urban students in McInnis v. Shapiro.32 Plaintiffs in that case had argued that the state's education finance system, based on a minimum foundation level of $400 per student, was inadequate to meet their educational needs.
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In other words, the fiscal neutrality principle provided a judicially manageable standard only because it avoided dealing with the complexities at the core of the issuehow to ensure an adequate level of education for all students and especially for those with distinctive educational needs. Although the fiscal neutrality principle was not accepted as a constitutional doctrine by the Supreme Court in its Rodriguez ruling,40 a number of state courts, following the Serrano precedent, did issue rulings that invalidated their state education finance systems on these grounds in the years following Rodriguez.
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Thus, over the past 25 years, the development of constitutional doctrine concerning fiscal equity in education and the quest for judicially manageable standards have become matters of state rather than federal constitutional law. Most of the state courts that initially found for the plaintiffs in the years following Rodriguez accepted the basic equal protection arguments that had been rejected by the U.S.
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The educationally relevant disparities not only reflect the tax base inequalities, but local political and administrative choices as well, not to mention the impact of preexisting differences in the students and their milieus."52 The difficulties of actually achieving equal educational opportunity through the fiscal neutrality principle, as well as political resistance to judicial attempts to enforce court orders in the initial fiscal equity cases, seem to have dissuaded other state courts from venturing down this path. Despite an initial flurry of pro-plaintiff decisions in the mid-1970s, by the mid-1980s, the pendulum had decisively swung the other way: plaintiffs won only two decisions in the early 1980s, and, as of 1988, 15 years after Rodriguez, 15 of the state supreme courts had denied any relief to the plaintiffs essentially for reasons similar to those articulated by the U.S.
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One answer might be the receptivity of the state courts to a powerful democratic imperative at the core of the American political tradition.55 By the mid 1980s, civil rights advocates were being battered not only by defeats in state court fiscal equity decisions, but also by judicial retrenchment in federal school desegregation cases.56 Although some might have expected these setbacks to extinguish the ardor of civil rights advocacy, the growing realization that more than 40 years after Brown v. Board of Education, large numbers of children were still being denied an adequate education and the awareness of the accelerating income gaps between the haves and have-nots had the opposite effect.57 The blatant inconsistency between the gnawing reality of continued denial of equal educational opportunity and the nation's democratic ethos inspired plaintiff attorneys to devise new legal theories and galvanized the courts to considering them.
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Because education remains primarily a state and local responsibility in the United States, and most of the federal laws and regulations are geared to promoting the development of standards at the state rather than the national level, the state standards-based reform movement has, in recent years, become the primary arena for these reform initiatives. Standards-based reform is built around substantive content standards in English, mathematics, social studies, and other major subject areas.
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Not surprisingly, therefore, the marked trend toward plaintiff victories in the challenges to state systems for financing public education since 1989 can be directly correlated to a greater reliance by plaintiffs in these cases on claims of a denial of basic educational opportunities guaranteed by the applicable state constitution, in contrast to the earlier practice of pleading equal protection claims based on disparities in the level of education funding. Specifically, 17 of the 18 plaintiff victories in the past 11 years have involved substantial or partial adequacy considerations.68 Moreover, even most of the state courts that have denied relief to plaintiffs seeking to invalidate state education finance systems have indicated that the result might have been otherwise if they had raised educational adequacy rather than classical "equity" claims.69 Adequacy has become the predominant theme of the recent wave of state court decisions because the adequacy approach resolves many of the legal problems that had arisen in the early fiscal equity cases and because it provides the courts with judicially manageable standards for implementing effective remedies.
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This consensus is reflected in the recent report of a Task Force of the National Conference of State Legislatures, which stated that "state policy makers and the courts should apply the test of 'adequacy' as a primary criterion in examining the effectiveness of any existing or proposed state school finance system."73 The task force then set forth basic principles for building an adequate education system that emphasized (1) articulating "clear and measurable educational goals, or objectives," (2)
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Nevertheless, a growing number of judicial interpretations of adequacy concepts in state constitutions forged at times through a creative dialogue with state legislatures and state education departments has resulted in recent years in an emerging consensus on a core constitutional concept of adequacy, based on general principles that establish the parameters for legislative and executive actions. This section provides an overview of the major court decisions dealing with adequacy definitions and sets forth the specific elements of this core constitutional concept.
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Cahill83 on the constitution's "thorough and efficient" education clause. The court defined the constitutional requirement as "that educational opportunity which is needed in the contemporary setting to equip a child for his role as a citizen and as a competitor in the labor market."84 It recounted the history of the thorough and efficient clause in the context of a 19th century concern for ensuring that a free public education be extended to all students in the state in order to secure "the common rights of all.~85 The Washington Supreme Court also defined the state's constitutional duty to "make ample provision for the education of all children"86 in terms of the "educational opportunities needed in the contemporary setting to equip children for their role as citizens and as potential competitors in today's market as well as in the marketplace of ideas."87 West Virginia's analysis of the purpose of its state constitution's "thorough and efficient" clause was similar: it defined the core adequacy requirement in terms of preparation for "useful and happy occupations, recreation and citizenship." In sum, then, the three state supreme courts that first attempted to define adequacy in the early years articulated a similar concept of "adequate education," drawn from basic notions of a citizen's role in a democracy and the obligations of the state's compulsory education system to prepare the child for competitive employment.
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It was not until 1989 a decade after the last of these initial attempts that any state supreme court again considered the concept of an adequate education. The first to do so was the Kentucky Supreme Court in Rose v.
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During that time, a select committee he had appointed held five hearings around the state one of which was attended by the governor and all of which were covered extensively by the pressand then enumerated five student outcomes that it believed would constitute an adequate education.~°~ The select committee's recommendations were substantially adopted by the trial court, and their key elements were also included in the final decision of the state Supreme Court. The Kentucky court's formulation of the goals of an adequate education system aptly reflected the essential aims of the developing state standards-based reform movement.
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Kirby, the Texas Supreme Court held in 1995 that the state's standards-based accountability system met constitutional adequacy requirements.~06 In New Hampshire, the state supreme court rejected an adequacy definition promulgated by the state education department, which had been upheld by the lower court, holding that it "is the legislature's obligation, not that of individual members of the board of education, to establish educational standards that comply with constitutional requirements."~07 It then pointed to the seven specific criteria articulated by the Kentucky Supreme Court as guidelines to the legislature for defining educational adequacy.~°8 In 1997, the New Jersey Supreme Court upheld a set of content standards that, it noted, had been adopted by the New lersey legislature consistent with the national trend "in favor of a standards-based approach to the improvement of public education."~09 Although it concluded that the standards "are facially adequate as a reasonable legislative definition of a constitutional thorough and efficient education,"~° the court never
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State, the New York court explicitly rejected defendants' argument that reading, writing, and mathematics skills at an 8th to 9th grade level the former state competency standard that the regents were replacing with their more demanding learning standards would meet constitutional requirements. Instead, the court held that sound basic education requires the "foundational skills that students need to become productive citizens capable of civic engagement and sustaining competitive employment." Civic engagement the court defined to include acting as a knowledgeable voter who has the "intellectual tools to evaluate complex issues, such as campaign finance reform, tax policy, and global warming" and serving as a capable juror who may be called on to "determine questions of fact concerning DNA evidence, statistical analyses, and
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. and sufficient computers"~27 as well as "facilities in good repair and the supplies, materials and funds necessary to maintain these facilities in a safe manner." The Wyoming Supreme Court went even further in providing substantive instructions to the legislature on how it should go about defining the specific elements of an adequate education.
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The Emerging Core Constitutional Concept Constitutional doctrine in the state courts regarding student rights to an adequate education clearly has resulted in recent years in a growing convergence on certain core concepts. This constitutional core emphasizes that an adequate education must (1)
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The standards-based reforms have made clear that to be effective citizens and productive workers in contemporary society, students need to develop higher-order cognitive skills. The constitutional requirements set forth in many of the recent cases reflect an awareness of the need to prepare students to compete in the global society of the 21st century.~38 Courts have specifically stated that contemporary adequacy standards must be pegged well above a 19th century reading, writing, and arithmetic level.~39 In essence, the emerging constitutional concept of adequacy is a prudent judgment concerning the basic educational opportunities that a child will need to take his or her place as a functioning adult in contemporary society.
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After contrasting the offerings in a number of poor and rich districts, it stated that "the wealthier school districts are not funding frills."~45 In short, it is clear that "the concept of an adequate education emerging from state courts invalidating school finance systems goes well beyond a basic or minimum educational program that was considered the acceptable standard two decades ago."~46 The Florida constitutional referendum, reflecting these contemporary trends, specifically defined an adequate education as one that "allows students to obtain a high quality education."~47
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Thus, although many state accountability systems, especially in states that have adopted "high-stakes" testing programs, emphasize student achievement scores as the basic determinants of whether students are obtaining an appropriate education, the constitutional criterion for determining the level of educational services that must be provided for an adequate education tends to emphasize educational opportunity, not educational results.~5~ Output measures are considered important guideposts for determining whether an education system is functioning well and whether further scrutiny is warranted, but they are not seen as constituent elements of a constitutional definition of adequacy.~52 Courts tend to enforce students' rights to an adequate education, therefore, by seeking to ensure the availability of essential resources, such as decent facilities, a safe environment, qualified teachers, and up-to-date textbooks,~53 or by providing feasible additional support for students with special needs or at risk of educational failure that will give all students the opportunity to develop necessary academic skills.~54 They do not, however, guarantee that all students will fully meet demanding state standards or that unlimited resources must be made available to overcome all impediments to equal educational outcomes. The emerging core constitutional concept of adequacy has enhanced the courts' ability to frame workable remedies and to enter into dialogues with state legislatures and state education departments on methods for actually providing a meaningful opportunity for an adequate education to all students.
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Restructuring state education finance systems and obtaining sufficient resources to implement standards-based reforms and workable accountability systems remain formidable challenges. The critical importance for the future of American education and for the future of American democracy of fully meeting these challenges and actually providing the opportunity for an adequate education to all students is the subject of the concluding section of this paper.
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An Adequate Education for Citizenship Even though democratic theory in the United States in recent decades has extolled the concept of the informed citizen, there has, in fact, been little discussion, let alone analysis, of the specific skills individuals need to carry out the functions of such a citizen. The standards-based reform movement has now put this question into focus, and, at the same time, it has provided specific tools for determining the extent to which the schools are actually producing students who can effectively carry out their presumed societal responsibilities.
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In order to develop a trial record that would fully evaluate the Court of Appeals' "template" concept that a sound basic education must provide the skills students need to "function productively as civic participants capable of voting and serving on a jury,"~64 Justice Leland DeGrasse first instructed the parties to have their expert witnesses analyze a charter referendum proposal that was actually on the ballot in New York City at the time the trial was in progress. The specific question posed was whether graduates of New York high schools would have the skills needed to comprehend that document.
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Nonetheless, jurors may be called on to decide complex matters that require the verbal, reasoning, math, science, and socialization skills that should be imparted in public schools. Jurors today must determine questions of fact concerning DNA evidence, statistical analyses, and convoluted financial fraud, to name only three topics.l73 Although society may have unreflectively accepted a wide gap between its democratic ideal and the actual functioning level of its citizens participants in the past, now that the issue has come to the fore, it is difficult to conceive of our society knowingly perpetuating a state of affairs in which voters cannot comprehend the ballot materials about which they are voting and jurors cannot understand legal instructions or major evidentiary submissions in the cases they are deciding.
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Accordingly, the notion that all students can learn at a reasonably high cognitive level, which is the premise of standards-based education reform, must also become a political imperative for a well-functioning contemporary democratic society. The possibility of actually excluding those with inadequate cognitive skills from civic responsibilities has, in fact been seriously debated in recent years as a growing number of complex litigations in areas like product liability, antitrust, and environmental regulation have raised critical questions regarding the capacity of juries to deal with the problems posed by contemporary litigation.
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A1though empirical studies of jury functioning in the past had shown that "the jury does by and large understand the facts and get the case straight," many contemporary studies "buttress the contention of lay jury incompetence in complex cases."~87 The recent literature on jury functioning, therefore, bears out DarlingHammond's testimony in the CFE litigation that students need to develop higher-level cognitive skills if they are to function productively as civic participants in today's complex society. The widespread rejection of the suggestion that blue ribbon juries be reinstated in complex cases makes clear that in this age of broadened civil rights' assertion, restriction of the franchise and denial of the right to a jury representing a full cross-section of the community do not constitute viable options.
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Minorini and Stephen D Sugarman, School Finance Litigation in the Name of Educational Equity: Its Evolution, Impact and Future, 34, 36-37 in EQUITY AND ADEQUACY IN EDUCATION FINANCE: ISSUES AND PERSPECTIVES.
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equal protection argument to the field of education finance appeared virtually unstoppable." Peter Enrich, Leaving Equality Behind: New Directions in School Finance Reform, 48 VAND.
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Long, Rodriguez: The State Courts' Response, 64 PHI DELTA KAPPAN 481, 482 (1983~.
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Fishel, How Judges are Making Public Schools Worse, CITY JOURNAL 30 (Summer, 1998~. Richard Briffault rejects this contention, stating that the significance of local control lies in opportunities for accountability and participation; he also argues that an overemphasis on local funding for education distorts fiscal support for education as school districts seek to minimize tax rates in order to attract or keep wealthy property owners.
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of challenges to state education finance systems by courts that had previously held for defendants. During the same time period, defendants have prevailed in the following 10 states: Wisconsin (KuLor v.
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58. Standards-based reform, by emphasizing the need to provide adequate educational opportunities to all children, also gave promise of rectifying the apparent tendency of the fiscal equity cases to provide effective remedies for small, largely white school districts, but not for largely minority urban districts.
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68. Adequacy concerns were major factors in the highest state court or final trial court decisions in Kentucky (1989)
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75. There is also, of course, substantial concern and controversy about how to ensure sufficient funding to provide all students a genuine opportunity for an adequate education.
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1987) (the education clause requires "a basic, adequate educations; Campaign for Fiscal Equity v.
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c359 § 1. The act defined "basic education" in terms of broad educational goals and specified the minimum hours, days, and instructional programs that school districts were required to offer.
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at 212-213. The court also held, inter alla, that the state education system must be monitored by the legislature to ensure that there is no waste or mismanagement, and that the "General Assembly shall provide funding which is sufficient to provide each child in Kentucky an adequate education." 101.
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1997~. In Leandro, the state supreme court defined the constitutional concept of a sound basic education and remanded the case for a trial to determine whether children in North Carolina were receiving an education that comported with those requirements.
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1995) (defining "sound basic education" in terms of preparing students to "function productively as civic participants capable of voting and serving on a jury," a definition that was further refined in the recent trial court decision (719 N.Y.S.2d 475 (N.Y.
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1994) (noting a "striking resemblance" between legislative standards based on the goals of "preparing learners to live, learn and work in a global society" and constitutional definitions of adequate education in Rose, Hunt and Abbott)
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The Alabama trial court utilized three sets of state standards in determining that the state's schools were not providing an adequate education: the substantive educational standards set forth in the Alabama Education Improvement Act; state and regional accreditation standards; and indicators utilized by state officials, such as dropout rates, college remediation rates, and workforce preparation.
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Memorandum from Thomas Sobol, New York State commissioner of education, to the New York Board of Regents: Implementing a New Compact for Learning: Strategic Plan 2 (1991~. Throughout the drafting process, New York's state education department and Thomas Sobol, the commissioner of education, maintained ongoing communications on standards developments with their counterparts in other states and with the New Standards Project, of which Commissioner Sobol was, at the time, the chair.
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REV 47, 53 (discussing studies indicating that pattern jury instructions are difficult for juries to understand) ; AUSTIN, supra note 178 at 84-85 (case study of two separate juries in antitrust litigation found that "their comprehen
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In the 19th century, they were an important counterforce to probusiness judges. For an overview discussion of the historical role of American juries, see Stephan Landsman, The History and Objectives of the Civil Jury System, in Verdict, supra note 179 at 22.
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Saltzburg, Improving the Quality of Jury Decision-Making, in VERD~cT, supra note 179 at 341, Barbara Allen Babcock, Jury Service and Community Representation, in VERD~cT, supra note 179 at 460. In a 1989 survey, 58 percent of federal judges and 66 percent of state court judges disagreed with the proposition that "in complex civil cases, there should be some minimum level of education or qualifications to avoid jurors who cannot understand the case." Louis Harris & Associates, Inc., Judges' Opinions on Procedural Issues: A Survey of State and Federal Trial Judges Who Spend at Least Half Their Time on General Civil Cases, 69 B.U.
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Barbara Bowman, Erikson Institute 2:30 Learning To Read Catherine Snow, Harvard University 2:50 Discussion 3:20 Promoting Educational Success: Social and Cultural Considerations Craig Ramey, University of Alabama Eugene Garcia, University of California, Berkeley Claude Steele, Stanford University Antoine Garibaldi, Educational Testing Service 4:20 Discussion 5:00 Adjournment Friday, September 22 Session Ill Using Policy Interventions to Raise Achievement Christopher EdIey, Moderator 9:00 Policy as a Tool to Raise Educational Achievement Ronald Ferguson, Harvard University 9:45 Policy Tools Educational Adequacy Jacob Adams, Vanderbilt University Michael Rebell, The Campaign for Fiscal Equity Standards, Accountability and High-Stakes Testing Jay Heubert, Columbia University Resegregation and School Choice Gary Orfield, Harvard University I l :15 Discussion Session {V Putting It Into Practice: Challenges and Successes of Research-Based Reform Catherine Snow, Moderator I ~ :45 Improving the Academic Achievements of Historically Low-Achieving Students: What We Know And What We Need To Learn
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