Success: Better Education through Litigation!

Education adequacy litigations have won better educational opportunities in several states, including Arizona, Kansas, Kentucky, Massachusetts and New Jersey. Case studies from these states – framed around Professor Michael Rebell’s definition of success in “Ensuring Successful Remedies in Education Adequacy Litigations” – comprised a session on “Assessing Success in Education Adequacy Litigations: A View from the States” at the Campaign for Educational Equity’s 3rd Annual Symposium.

Getting things done! – Arizona, Kentucky, Massachusetts, and New Jersey

Molly Hunter, Director of the National Access Network, described Arizona’s ongoing remedy and implementation since 1998 as a win-win for plaintiffs and the state, in “Building a Sustained School Facilities Remedy: Arizona’s Innovative Blueprint For Capital Funding." She stressed the state supreme court’s mandate that the state use its student learning standards to develop adequacy standards for school facilities. Hunter later presented the case of Kansas, where a successful litigation and funding reform in the early 1990s was thwarted by legislative backsliding soon thereafter. She referred to the follow-up Montoy v. State litigation and the remedy being phased in now, and noted that Kansas is one of the few states where the court has ordered a specific minimum funding amount. According to Hunter, costing out studies were key to the state’s remedial measures.

Susan Perkins Weston, Education Consultant for the Prichard Committee for Academic Excellence, outlined the case of Kentucky where she reported that major funding and educational changes have led to remarkable gains. In the presentation of her paper, “Substantial and Yet Not Sufficient: Kentucky’s Effort to Build Proficiency for Each and Every Child” she described how Kentucky has shown dramatic improvements in student performance subsequent to a Supreme Court ruling that deemed the state’s educational system unconstitutional and an ambitious legislative remedial regime. In one generation, Kentucky’s students have moved from at and near the bottom of state-level test scores to close to the middle of all 50 states, with no decrease in high school graduation rates. Interestingly, Perkins Weston also believes that momentum is building in Kentucky for the “next revolution” to narrow gaps and move the state as a whole to higher achievement.

Similarly, Chair of the Massachusetts Board of Education, Paul Reville, pointed to national indicators, such as his state’s leading the nation in NAEP scores, that reflect an outstanding success in Massachusetts following the McDuffy case and its remedy in the 1990s. Asked about the court’s ongoing presence during implementation, he indicated that it definitely positively influenced the state’s actions. Reville, who is also Executive Director of the Rennie Center for Education Research and Policy, expands his views in his paper, “The Massachusetts Case: A Personal Account.” In his presentation, he provided the long list of gains in his state, but moved immediately to the current set of challenges around efforts to narrow and close achievement gaps.

Professor Peg Goertz from the University of Pennsylvania, also laid out the success of adequacy litigations in the Abbott districts in New Jersey, some of the nation’s most racially isolated and the state’s poorest school districts. According to Goertz, thirty years of school finance litigation have pumped $1.2 billion of additional funding into the Abbott districts, which can now provide students with educational programs that mirror those of suburban counterparts and produce test scores that reflect a rise in achievement and a narrowing of the performance gap between poor urban and other students in the state. A more comprehensive analysis can be found in her paper “Assessing Success in School Finance Litigation: The Case of New Jersey.”

Audrey Anderson, partner at Hogan & Hartson LLP, moderated the panel with excellent questions and insights.

New Challenges

Despite remarkable cases of success, the panelists acknowledged that there is still much to do. Reville reminded the audience that right beneath Massachusetts’ positive indicators, lays the persistent achievement gap. Now that adequacy litigations have resulted in cases of sustained success, school re-segregation and closing achievement gaps for all children pose new challenges for the nation and the courts.

To address the complicated issue of political culture, Hunter said that the court role is to help by declaring rights and values, and in doing so they do not overstep their bounds. Perkins Weston commented on the issue of political culture as well by driving home the point that “it takes [citizens] showing up to get things done!”

The Critical Role and Staying Power of the Courts

In presenting “Ensuring Successful Remedies in Education Adequacy Litigations: A Comparative Institutional Perspective,” Michael Rebell said the Seattle and Jefferson County, Kentucky decision reminded him of the 1973 Supreme Court Ruling in Rodriguez vs. San Antonio, which concluded that education is not a fundamental right under the federal constitution. He pointed out that the last 30 years prove there is hope after bad U.S. Supreme Court decisions. He highlighted the success of the education adequacy cases by reminding the audience that 45 out of 50 states have seen lawsuits aimed at remedying inadequate school funding, and plaintiffs have prevailed in over 60 percent of the cases.

Regarding the issue of courts not overstepping their bounds, Rebell described the courts as a “bully pulpit” for reminding us of our fundamental values, and charged the state courts with the responsibility of overseeing a sustained level of success.

Eric Hanushek, Senior Fellow at the Hoover Institution at Stanford University, countered Professor Rebell by claiming that he is asking the courts to sit above the political branches. “Be careful what you wish for” he warned, or “the courts might just make all the educational decisions.” However, Rebell appeared confident that the courts will end their intervention when schools achieve comprehensive improvements.

Prepared by Marcela Briceno, November 19, 2007