Book Review: The Schoolhouse and the Courthouse
By Michael A. Rebell

Schoolhouses, Courthouses, and Statehouses: Solving the Funding-Achievement Puzzle in America’s Public Schools
Eric A. Hanushek and Alfred A. Lindseth. Princeton: Princeton University Press, 2009, ISBN978-0-691-13000-2

From Schoolhouse to Courthouse: The Judiciary’s Role in American Education
Joshua M. Dunn and Martin R. West, eds. Washington, D.C.: Brookings Press/Fordham Institute, 2009, ISBN 978-0-8157-0307-5

These two books are the latest in a recent series of ideologically charged writings that challenge the legitimacy of the substantial role the courts have come to play in educational policy matters and assert that judicial intervention has largely been a failure in terms of producing gains in student achievement. [1]

The widespread involvement of both the federal and state courts in educational policy matters began more than 50 years ago as a direct result of Brown v. Board of the Education, the U.S. Supreme Court’s landmark decision outlawing school desegregation. Brown initiated a new model of public law litigation, in accordance with which both federal and state courts have for the past half century issued broad remedial decrees that go beyond the traditional judicial role of resolving private disputes between individuals and substantially affect the implementation of public policy.

Accordingly, over the past 55 years, the federal courts have promoted institutional reform in the schools not only in regard to desegregation but also in areas like bilingual education, gender equity, and special education. They have also fostered reforms in other social welfare areas, including the deinstitutionalization of services for the developmentally disabled and the improvement of prison conditions. State courts similarly have taken on such “new model” responsibilities both in regard to fiscal equity and educational adequacy issues, and also in such sectors as land use regulation and gay rights. The strong stance of the federal courts on school desegregation in the 1960s fueled the civil rights movement, just as the strong stance of the state courts in the past two decades has led to a national wave of state education finance reform throughout the United States.

The new model of public law litigation has become such an established part of the legal landscape that conservatives as well as liberals now routinely look to the courts to remedy legislative or executive actions of which they disapprove. Indeed, if “judicial activism” is defined in terms of declaring legislative acts unconstitutional, the conservative Rehnquist court was the most activist in American history. Until 1991, the United States Supreme Court struck down an average of about one congressional statute every two years. From 1994 to 2004, the Court struck down 64 congressional provisions, or about six per year. This invalidated legislation has involved civil rights, social security, church and state, campaign finance, and a host of other major social policy issues.

To a large extent, then, criticism of the courts’ new role depends on whose ox is being gored. Dunn and West, although generally excoriating the courts’ forays into educational policy realms such as educational finance, school discipline, and special education, applaud recent U.S. Supreme Court decisions that have upheld the constitutionality of school vouchers and allowed Bible clubs to meet on school premises. Hanushek and Lindseth see an important role for the courts in using their “evidence-gathering powers to examine and make judgments” about issues that would set the stage for legislatures to enact the panoply of conservative reforms that they advocate (p. 285).

Both of these books serve a valuable purpose in providing their readers with a comprehensive overview of the role courts have played in recent years in most of the major areas of educational policy, including school desegregation, special education, high stakes testing, school choice, discipline, religion in the schools, and especially education finance, which is the sole focus of the Hanushek and Lindseth volume and a major concern of Dunn and West. A major problem is, however, that, with notable exceptions such as the fairly balanced chapters by James Ryan, Shep Melnick, Michael Heise, and Richard Arum and Doreet Preiss, most of the Dunn and West volume (including the introduction and the chapters written by the editors), and the Hanushek and Lindseth book as a whole, tell the story of judicial involvement in highly partisan terms; as such, these works are essentially ideological diatribes against the courts’ alleged usurpation of policymaking powers that the authors believe should remain the exclusive domain of the political branches.

One aspect of this attack is the claim that the courts have been largely ineffective in their policymaking role. The major focus of this critique, especially in the Hanushek/Lindseth volume, is on the constitutional challenges to state education finance systems that have been lodged in state courts in 46 of the 50 states over the past 35 years. Plaintiffs have prevailed in the vast majority of these cases, a result that Mr. Lindseth, who has been a lawyer for defendants in a number of these cases, and Dr. Hanushek, who has been an expert witness for defendants in at least a dozen of them, clearly find objectionable. [2]

School finance litigation has substantially increased the overall level of spending on schools in the United States and has also resulted in a clear reduction in funding disparities among school districts in most states. On these points Hanushek and Lindseth apparently agree (pp. 61-62). They claim, however, that the primary measure of success should be whether these cases have led to measurable increases in student achievement, and they purport to show, by examining student outcomes on certain standardized tests in four states in which state courts have issued major education finance rulings, that the judicial interventions have, by and large, yielded very meager results (pp. 145-170).

Specifically, Hanushek and Lindseth focus on reading and math scores on the National Evaluation of Educational Assessment (NAEP) tests in Kentucky, Massachusetts, New Jersey, and Wyoming. These authors focused on NAEP because it provides a national benchmark that is not subject to the manipulations that occur with some of the state testing programs. They have, however, misused the NAEP data. A proper analysis of NAEP scores shows positive results in those states.

Hanushek and Lindseth report that their analysis of the NAEP data over this 15 year period indicates that white students in Kentucky have made some very limited progress relative to other states over the 15-year period, while black students have regressed compared with the rest of the country; Wyoming’s scores for white students did not keep pace with the rise in national scores on all three tests and scores for Hispanics also fell short in 2 of the 3 categories; and, in New Jersey, they claim that the increase in scores for black students was marginally better than the national averages, but that most of that gain came in the last two years, raising the question of whether those scores may have been an “anomaly.” Only in Massachusetts (whose NAEP scores are now the highest in the nation) do Hanushek and Lindseth concede that increases in the test scores (at least for whites and Hispanics who constitute 93% of the population) “have improved at a rate significantly faster than the nation as a whole” (p. 166).

Hanushek and Lindseth use 1992 as the base year in all of their NAEP analyses, contending this is a good starting point for considering the impact of these litigations because it was “prior to the commencement of their respective remedies.” This may be the case for Massachusetts, which decided its case in 1993. Kentucky, however, had instituted its reforms two years earlier, while Wyoming, where a major case was decided in 1995, did not fully implement the court-approved remedy until 2001. In New Jersey, the court did not order the critical program and funding remedies until 1998-2000.

Moreover, the range of years chosen by Hanushek and Lindseth are not appropriate for NAEP analysis because the extension of NAEP to state level data was in a trial period from 1990 until 1996, and full implementation of state reading assessments did not occur until 1998. In addition, in 1996 NAEP changed its rules for permitting accommodations. For that very reason, officials who administer NAEP caution about making long-term trend comparisons of data from before 1996 with data from after 1996.

Recently, Bruce Baker, associate professor at Rutgers University, and I looked at NAEP reading scores from 1998 to 2007 and math scores from 1996 to 2007. Our review indicates that overall, in 12 of 13 instances (the analysis included 13, rather than 16 testing instances because New Jersey did not administer any NAEP tests except in fourth grade math until 2002), gains for all students in these states exceeded gains for all students nationally, and in 9 of 13 cases, students from backgrounds of poverty in these states exceeded gains for these students nationally. [3] In sum, focusing on the more appropriate years, the NAEP test results, like the available data on the state assessments, indicate that school finance litigation does, in fact, result in measurable gains in student performance.

Nevertheless, we are reluctant to conclude definitively, based on this limited testing data, that all or any of these litigations are a “success.” As many commentators have noted, assessing success solely in terms of scores on reading and math tests, as currently required by the federal No Child Left Behind Act, actually reduces time, effort, and student accomplishment in science, social studies, the arts, and other subjects that essentially “don’t count.” This runs directly counter to the courts’ stipulation in many adequacy cases that states are constitutionally obliged to provide a “thorough and efficient” or a “sound basic education” in all content areas, and not just in English and math. According to the New Jersey Supreme Court, for example, students are constitutionally entitled to an educational opportunity that is needed in the contemporary setting to “equip a child for his role as a citizen and as a competitor in the labor market.”

In short, judging the effect of these court decisions on student achievement is a complex business. Test scores, used carefully and correctly, may be useful indicators of important trends, but, to understand fully what impact the education finance litigations have on student learning, one must also take into account a wide range of educational, political, and economic variables that, over time, affect the reform process and its outcomes, including student achievement. As Baker and Welner have recently shown, proper assessment of the outcome of a litigation requires consideration of a host of complex factors, such as when reforms were implemented (as opposed to when they were ordered), the legislature’s goals in framing its reforms, the legislature’s fidelity to a court’s order, and the adequacy and stability of funding[4], all of which have been ignored by Hanushek and Lindseth. For example, with the NAEP statistics discussed above, lesser gains for low-income students in Wyoming should come as no surprise since, in that state, although funding was increased significantly, disparities between districts were largely retained. It also is significant that Kentucky’s relative scores have declined in recent years, a time period when funding levels in Kentucky began to lag behind neighboring states.

A critical flaw in both of these books is their lack of any comparative institutional analysis. In assessing whether the courts have been successful in solving our nation’s educational problems, it is necessary to compare their efforts with legislative and executive agency attempts. As Wisconsin law professor Neil Komesar has insightfully pointed out, “All societal decision makers are highly imperfect.” Governors, state education departments, legislatures, and the federal Congress have been unable to solve the nation’s stark educational problems over the past half century, so why should anyone expect judicial interventions to achieve immediate, decisive results? The courts have gotten involved in educational issues in most states in recent years precisely because the stakes are high and governors and legislatures have promised much and delivered little. Although raising expectations for both educational excellence and equity, the political branches have maintained highly inadequate and inequitable educational funding systems that block progress on both counts. These failings raise significant issues under state constitutions that judges cannot ignore.

The blunt reality is that poor and minority students are never going to receive the equal educational opportunities promised to them by Brown v. Board of Education and by current state and federal policy pronouncements without the active involvement of the courts. Left to their own devices, state legislatures, which tend to be controlled by suburban interests, are highly unlikely to take any meaningful steps toward reforming the highly inequitable property-based educational finance systems that deny urban and rural areas the resources they need to properly fund their public schools. The authors of these volumes put forward the usual conservative litany of proposed educational solutions – test-based accountability, merit pay for teachers, rewards and sanctions, and voucher and charter alternatives – but even if they were able to convince one or more legislatures to adopt these remedies as an “integrated system” as Hanushek and Lindseth believe is necessary (p. 219), adequate funding and consistent support for this program would be necessary; without the continuity of judicial oversight neither this reform prescription nor any other approach that might provide meaningful educational opportunity for poor and minority children is likely to be implemented on a sustained, long-term basis.

A leitmotif throughout both of these books is the notion that the now well-established role of the courts in educational policy making somehow violates constitutional precepts of separation of powers. “Considering the policymaking limitations of courts, deferring to representative branches would seem to be the more prudent course of action,” say Dunn and West (p. 12). Hanushek and Lindseth are even more emphatic; they accuse many state court judges of being “autocrats” who have assumed for themselves “a power and function vested in another branch of government” (pp. 97, 98).

The authors’ separation of powers analysis grossly mischaracterizes the courts’ actual role in these cases. Courts in the education finance cases do not seek to involve themselves in detailed issues regarding educational appropriations. Consistent with the long-established constitutional principle that it is the courts’ duty to uphold rights guaranteed by a constitution – and especially the rights of “discrete and insular” minority groups whose needs are often ignored by legislative majorities – state courts in the adequacy cases have invalidated state financing schemes that disadvantage urban and rural minority groups. Not a single court has, as part of its initial constitutional determination, told the legislative and executive branches how much they should spend or precisely how to reshape their existing funding formulas. Typically, the court holds that the existing system is unconstitutional and allows the other branches a reasonable period of time to determine what levels of funding and what formula revisions are needed to provide a suitable opportunity for all students to meet the state’s own learning standards.

In some cases, as most recently in Arkansas, Kansas, and New York, courts have had to delve into cost determinations and other specific education finance issues only because the legislative and executive branches had refused to do their jobs. In all three of these recent cases, the political branches had proved unwilling or unable to revamp the state’s unconstitutional finance systems, leaving the courts the Hobson’s choice of taking enforcement action or allowing major constitutional violations – and the educational needs of millions of school children – to remain unaddressed indefinitely. Yes, violations of separation of powers were committed in these instances, but the violators weren’t the courts – they were the legislative and executive officials who failed to respond to the courts’ properly issued constitutional rulings.

To achieve excellence and equity in our public school systems requires a concerted effort by all three branches of government to bring their relative functional strengths to bear on ensuring constitutional compliance and providing meaningful educational opportunity to all students. To achieve success requires an effective, ongoing “colloquy” among the three branches of government. The courts’ role in this process is to outline in general, principled terms the expectation that the legislative and executive branches will develop challenging standards, fair and adequate funding systems, and effective accountability measures, but to leave to the political branches the full responsibility for actually formulating these policies. Legislatures should make basic educational policy decisions; state education departments and local school districts should determine how best to implement educational reforms. Once the state has decided on its policy position, however, a judicial presence should be maintained to ensure that the chosen policy is fully funded, is implemented in a coherent manner, and results in substantially improved student performance, as measured by validated assessments of academic achievement and of students’ ability to function productively as capable citizens and workers.

The aggressive stance against court involvement in education adequacy cases taken by most of the authors in these books mirrors the aggressive turf battles waged by the executive and legislative branches in many states against the courts. Everyone is harmed by these contests, and students are harmed most of all. The truth is that reforming the nation’s education system is a massive job that requires a colloquy, not a contest, among the three branches of government. A judicial presence is especially important to ensure that the reform process – and reasonable funding levels – are maintained in times of economic stress or recession like the present where children’s needs and constitutional values are often given short shrift.

Notes

1. See also, Eric A. Hanushek, ed. (2006), Courting Failure: How School Finance Lawsuits Exploit Judges’ Good Intentions and Harm Our children, Stanford, CA: Education Next Books; Martin R. West and Paul E. Peterson, Eds, (2007) School Money Trials: The Legal Pursuit of Education Adequacy, Washington, D.C.: Brookings Press.

2. I also have staked out a position on these issues, having served as co-counsel for the plaintiffs in the education adequacy case in New York, and having authored a number of books that support a proper role for the courts in educational policy making. See, e.g. Michael A. Rebell and Arthur R. Block ( 1982) Educational Policy Making and the Courts, Chicago: University of Chicago Press; and Michael A. Rebell, (2009), Courts and Kids: Pursuing Educational Equity Through the State Courts, Chicago: University of Chicago Press.

3. See, Michael A. Rebell and Bruce D. Baker, “Assessing ‘Success’ in School Finance Litigations,” Education Week, Volume 28, Issue 36, Online, July 8, 2009. Even though our analysis, in contrast to that of Hanushek and Lindseth, shows overall gains and gains for low-income students in New Jersey, we don’t believe that any use of NAEP data can provide meaningful information about the impact of the litigation in that state. Aside from the fact that New Jersey did not participate in most of the NAEP testing during most of the years in question, NAEP does not disaggregate its test results by school district. The beneficiaries of the Abbott case in New Jersey were students in 32 poor urban districts but not all students or all poor and minority students in the state.

For New Jersey, Hanushek and Lindseth attempt to get around this major hurdle by assuming that the statewide figures for minority student performance should provide a reasonable indication of the impact of the litigation since about 50% of the black and Hispanic children in the state are educated in the Abbott districts that benefited from the litigation. That means, however, that the other half are not! In fact, the minority students in New Jersey who reside in the districts that did not reap funding benefits from the litigation may have been relatively deprived of needed resources precisely because their districts were not covered by the court decree. There is, in fact, mounting evidence that, as the parity funding, universal prekindergarten, supplemental funding, and other reforms implemented in New Jersey in the past few years take effect, significant progress is being recorded on a wide variety of indicators. For example, state test results show that from 1999 to 2007, in fourth-grade mathematics, the achievement gap between the Abbott districts and the rest of the state was reduced by over a third.

4. Bruce Baker and Kevin Welner, School Finance and the Courts: Does Reform Matter and How Can We Tell? (forthcoming, 2010).

Originally published in the December 4, 2009 Issue of The Teachers College Record. Permission to reprint granted by the author.