EDITORIAL:
Adequacy Cases are Alive and Well

For the past 18 years, plaintiffs in education adequacy litigations have had a remarkable record of success, prevailing in 20 of 27 decisions of the states’ highest courts (or unappealed trial court decisions). Al Lindseth, an attorney who has represented the defendants in some of these cases, claimed in a recent commentary in Education Week and in his answer to critical letters from me and from others, that in the past two years, there has been “a dramatic shift in the courts’ attitude toward such lawsuits,” and that since that time, “plaintiffs have lost or been disappointed in 14 of the last 15 adequacy decisions.”

An examination of the 15 cases Lindseth cites shows that his conclusions are unwarranted and totally misleading. Lindseth acknowledges that plaintiffs prevailed in New Hampshire. Let’s examine the remaining fourteen cases in detail. They fall in to three categories:

• Six trial court cases, stayed or on appeal.
• Five follow up decisions to major rulings
• Three unique rulings

The Six Cases Stayed or On Appeal

These are the trial trial court decisions in Alaska, Colorado, Indiana, Missouri, Oregon, and South Carolina. In two of these cases, plaintiffs have, in fact, won path-breaking victories.

1) The South Carolina court held that students from poverty backgrounds were constitutionally entitled to pre-school through third-grade programs and services

2) The Alaska Court determined that “the State has violated the Education Clause” because it “has failed to identify those schools that are not according to children a meaningful opportunity” and has failed to provide “a concerted effort to remedy that situation.”

3), 4), 5), 6) Some, if not all, of the other trial court decisions in which plaintiffs did not prevail (Colorado, Indiana, Missouri, Oregon) may well be overturned by the states’ Supreme Courts. The general pattern in adequacy cases has been that findings for plaintiffs involving major new constitutional interpretations often can come only from the state’s highest court.

The Five Follow-Up Decisions

These five are follow-up decisions of major rulings in which the states’ highest courts had previously strongly upheld children’s constitutional rights to an adequate education: Kentucky, Massachusetts, New York, Texas and Wyoming.

7) The New York Court of Appeals re-affirmed its constitutional holding and ordered the State to expend at least $2 billion on a remedy for New York City’s school children. Although this “constitutional minimum” was less than the $5 billion figure recommended by the lower courts, the legislature, in fact, responded to the Court’s order by adopting funding reforms that reflected the $5 billion figure endorsed by the lower court.

8) The Massachusetts Supreme Judicial Court, noting that the State had implemented the extensive reforms contemplated by its previous order, had increased education spending by over $6.5 billion, and had achieved remarkable progress in terms of academic improvement in recent years, declined to issue a further order to deal with the continuing problems in certain poor and minority districts, expressing an expectation that the legislature would continue its efforts to deal with these remaining problems.

9) Similarly, the trial court in Kentucky, citing “substantial progress” toward meeting the state’s education goals, was unwilling “at this time” to order additional funding, but it explicitly left open the possibility of future relief if further evidence of inadequacy is presented.

10) The Texas Supreme Court’s latest decision actually struck down the state's current school funding system, which had been reformed in response to the courts’ previous orders, after finding that the system had evolved into an unconstitutional state property tax. Although it reversed the trial court’s finding that the system was currently failing to provide an “adequate, suitable and efficient” education, the Supreme Court noted that “it remains to be seen whether the system's predicted drift toward constitutional inadequacy will be avoided by legislative reaction to widespread calls for changes.”

11) In Wyoming, the trial court declared that some elements of the school funding system were unconstitutional, including those related to school facilities and seniority adjustments for teachers, but it dismissed plaintiffs’ claims for additional at-risk program aid and for pre-school funding.

Since plaintiffs always aim high, there is no doubt that in some of these compliance cases they have been “disappointed” by the courts’ responses to their requests for further relief. Most significant, however, is the fact that in each of these cases, the state’s highest court re-affirmed students’ rights to a basic, quality education and made clear its expectation that the State would continue to take affirmative steps to meet the needs of students who were still not being properly served. The detailed court findings of extensive education progress due to implementation of remedies in earlier adequacy litigations also should remind all of us that these cases have been enormously successful in closing opportunity gaps and raising achievement.

Three Unique Cases

This leaves only three (Arizona, Nebraska and Oklahoma) of the fifteen cases cited by Lindseth in which plaintiffs actually lost basic constitutional rulings by the state’s highest court.

12) The Arizona case, however, was not a classical “adequacy” litigation; it sought to break new ground in establishing new affirmative constitutional rights of children “at risk.” The Arizona Supreme Court declined to do so, but, it in no way went back on its previous strong rulings regarding students’ constitutional rights to adequate educational facilities.

13), and 14) In the Nebraska and Oklahoma rulings, state supreme courts that had previously refused to consider challenges to the state’s education finance system, refused to do so again, holding that these allegations raised “political questions” that should be resolved by legislatures and not courts.

In sum, a review of the recent cases cited by Lindseth indicates not that “courts have cooled to adequacy lawsuits,” but that the adequacy movement has matured and that, in many states, courts are facing complex implementation and compliance issues that require new thinking and new approaches by both litigants and judges.

Despite what Lindseth says or would like to believe, most of the courts are re-affirming their commitment to upholding children’s constitutional rights to an adequate education. They are also indicating that at advanced compliance stages of these proceedings, new ways for courts to communicate and to cooperate with the legislative and executive branches must be forged.

The questions raised by the courts in these “second generation cases” call for thoughtful responses and nuanced solutions, rather than the quick sound bites in which Lindseth deals.

These sophisticated questions of how courts should define and ensure success at the remedial stages of education adequacy litigations, and how the three branches of government can better work together to promote meaningful educational opportunity for all children will be among the major issues explored in depth at the forthcoming Symposium entitled “Equal Educational Opportunity: What Now?” sponsored by the Campaign for Educational Equity at Teachers College, Columbia University and Columbia Law School on November 12, and 13, 2007.

Prepared by Michael A. Rebell, October 26, 2007