Litigation Strategies for Hard Economic Times

Michael A. Rebell, Executive Director, National Access Project of the Campaign for Educational Equity, Teachers College, Columbia University

A December 6, 2010, Stateline.org article on a new Kansas lawsuit challenging the state’s recent budget cuts recognizes that Kansas is just one of a number of states where this scenario is playing out:

School funding suits are also working their way through court systems in California, New Jersey and Indiana. More are likely to be filed in the months ahead, as legislatures -- confronted with yet another year of deep budget cuts -- opt to scale back education spending. School officials and attorneys in Texas and New Mexico have talked about pursuing legal action. Education policy experts say the coming legislative sessions could set off a whole wave of school districts dragging lawmakers to the courthouse.

For advocates, I know, the temptation to sue under these circumstances is great. Plaintiffs have had remarkable success in adequacy litigations in recent years -- winning two-thirds of the decisions that have been issued by state courts in the past two decades. And states’ failures to honor the remedies that have been ordered in these cases and their propensity to go back on funding increases for disadvantaged students that have been won in these battles are provocative. Moreover, the basic constitutional doctrines are clear. The courts have repeatedly insisted that the “financial burden entailed in meeting [constitutionally mandated education provisions] in no way lessens the constitutional duty” (Rose v. Council for Better Education 790 S.W. 2d 186, 208 (KY, 1989)). Constitutional rights do not evaporate during times of recession, and children’s needs for meaningful educational opportunity cannot, therefore, be deferred because tax receipts are lagging.

Nevertheless, it would be naïve not to recognize that some courts may be reluctant to assume jurisdiction of new cases or to enforce vigorously existing decisions when faced with arguments from state officials that severe revenue shortfalls and escalating entitlement obligations make it difficult to maintain educational funding levels, no matter how important they may be. Realistically, then, vigorous enforcement of the right to meaningful educational opportunity in times of economic downturn requires both a continuing emphasis on the applicability of the basic constitutional doctrine and a practical recognition that all feasible steps must be taken to minimize the actual costs of constitutional compliance.

The U. S. Supreme Court has specifically held that although a state cannot deny important constitutional benefits for reasons of cost, economic factors may be considered, for example, in choosing the methods used to provide meaningful access to services (Bounds v. Smith, 430 U.S. 817, 825 (1977)). Applied to the current situation, this means that although states cannot reduce educational services below minimum appropriate levels, they can respond to immediate fiscal exigencies by providing the constitutionally mandated level of services in more cost-effective ways. Especially in times of recession, it is appropriate, if not imperative, that, in order to safeguard student’s educational rights, states reconsider structural issues in the way educational services are provided and effectuate cost savings to the maximum extent possible.

In pursuing cost savings in education, however, the bottom line is that policymakers must respect the overriding constitutional mandate that children be provided a meaningful educational opportunity on a sustained basis. Currently, policymakers tend to impose mandatory cost reductions -- often through across-the-board percentage budget cuts -- without sufficient regard for the impact of these cuts on students’ core educational services. Constitutional requirements, however, dictate a very different course. When vital educational services are at issue, the burden is on the state to show how necessary services will be maintained despite a reduction in appropriations. In other words, cost reductions in the educational sector can be constitutionally countenanced -- but only if the state can show that efficiencies can be realized without jeopardizing the ability to meet children’s core educational needs.

Promoting cost effectiveness while safeguarding children’s constitutional rights can be achieved, I believe, by emphasizing four basic activities: identifying the core constitutional services, determining how they can be provided most efficiently, calculating the actual cost of such essential services, and then ensuring that the necessary funds are made available to all schools. The courts have a critical role to play in this process. I discuss each of these steps in some more detail in an article entitled, “The Kids Are Not Alright,” that appears in the current issue of The American Interest. For present purposes, I will provide one example of how states and school districts can respect constitutional parameters while engaging in cost-cutting operations.

One of the areas of greatest “bang for the buck” is increasing class sizes. Such increases, however, can harm student learning, especially in vulnerable schools attended by disadvantaged students. Prudent increases in class size that do not have impact on student learning may be justifiable if, for example, class size reductions are accompanied by improved teacher effectiveness or if class sizes are increased in low-needs schools and classrooms and small class sizes are preserved in high needs ones. Some of the money saved by prudent class size increases, therefore, should be used to defray the additional costs necessary to recruit, mentor, evaluate and retain effective teachers. Other possible strategies that should be explored to save money without harming children include elimination of unnecessary state mandates and regulations, school district consolidation, reducing costs of staff pensions (for example, by raising the age of eligibility for retirement while also increasing annual stipends), and reducing the high rates at which students are being referred for special education services in many urban districts, often to the educational detriment of the students themselves. While ideally these decisions would be made collaboratively by teachers, administrators, parents, and school board members looking out for students’ rights in tough times, judicial oversight may be necessary to ensure that such measures do not diminish the quality of the services the students receive and undermine their right to meaningful educational opportunity.

Over the next year, the National Access Project and the Campaign for Educational Equity at Teachers College, Columbia University will be developing more extensive analyses of children’s continuing rights to constitutional protection in difficult economic times, specific mechanisms for providing essential constitutional services in more cost-effective ways, and litigation strategies for effectively pursuing these joint aims. Stay tuned.