Adequacy Lawsuits: The Wrong Answer for Our Kids

A new breed of school finance litigation is sweeping the country. Aimed at states, these “educational adequacy” cases have as their primary purpose obtaining “adequate” (read “significantly more”) state funding for K-12 schools. Virtually every state constitution guarantees some level of free education for its children, such as “free common schools” or “free instruction.” Adequacy cases allege and seek to prove that the state has not met its duties under these vaguely worded provisions of the state constitution.

Educational adequacy cases have been brought in over 30 states. Plaintiffs have succeeded in the majority of these cases. In the last year alone, courts have struck down educational funding systems in New York, Massachusetts, Montana, Arkansas, and Kansas. Moreover, the outcome in an adequacy case bears little relationship to how much the state actually spends on its schools. Five of the highest-spending states in the country—New York, New Jersey, Connecticut, Vermont, and Massachusetts—have all suffered defeats in adequacy cases.

The education establishment has universally hailed these court decisions as victories for students. Most members of the media have also joined in this chorus, although, as the more outrageous monetary demands of the plaintiffs in recent cases have come to light, some have had second thoughts. This has happened, for example, in New York, where victorious plaintiffs are demanding that the legislature appropriate an additional $9.5 billion per year for the state’s schools, even though New York already spends more per pupil than any other state. Even when its spending is adjusted for regional cost differences, New York still outspends every other state but New Jersey.

To the backers of adequacy lawsuits, the benefits are obvious. They argue that increased funding will lead to more and better-qualified teachers, smaller classes, better facilities, and a host of programs designed to raise achievement of poor and minority students. However, adequacy lawsuits have other, more disturbing ramifications that courts, policymakers, and the public should also be aware of and consider. Otherwise, as discussed below, the billions of taxpayer dollars spent to achieve “adequacy” may be for naught.

• More money, without fundamental changes in how it is spent, will not improve student performance. The underlying premise of the adequacy movement is that increased education spending will lead to improved student performance. Unfortunately, there is little evidence that this has occurred. Since the early 1960s, inflation-adjusted spending for K-12 education in the nation has almost tripled, but there has been little or no improvement in student achievement. New Jersey, which has been in the throes of adequacy litigation longer than any other state, has dramatically increased its education spending, particularly in poor districts, but has little to show for it in terms of improved student performance.

This is not to say that money well spent in the future could not have a more positive effect. However, it seems painfully obvious that fundamental changes will have to be made in the way education dollars are spent if we are to expect significant improvement in student achievement. Otherwise, there is no logical reason to expect any different outcomes from what we have seen in the past 40 years, when education spending has soared with little or no improvement in student achievement.

Unfortunately, the very organizations that are solidly behind adequacy litigation (and that also stand to benefit from increased education spending) are also the most resistant to change when it comes to how education monies should be spent. For example, teachers’ unions generally support increasing teacher pay and hiring more teachers, but most oppose changes, such as incentive or merit pay, that might make such increased spending more effective at improving student performance. They generally favor provisions in collective bargaining agreements that make it difficult to retain experienced teachers in inner-city schools. Instead, they continue to insist that teachers be compensated based on years of experience and number of education units, factors which most agree have little impact on student performance.

• Alternative means of education reform will be shifted to the back burner. Once a court has struck down a school finance system, the discussion in the legislature becomes focused almost entirely on money. Other education reform measures, such as stronger accountability, increased efficiency, and expanded school choice, get short shrift. First, plaintiffs and their supporters, who gain tremendous leverage in the legislative process as a result of their court victory, are almost always opposed to such alternative reform measures. Second, any consideration of other means of education reform is likely to be lost in the shuffle, as the legislature struggles to meet the financial demands of the court decision. Instead of focusing on effective means of education reform, the legislature will be preoccupied with such issues as: Where is the money going to come from? Is it going to be taken from other school districts? If so, which ones? What noneducation programs will have to be cut? What portion of the increased costs will be borne by local taxpayers? During this debate, which may last for years, fundamental problems at the local level often continue to be ignored.

• More resources, rather than the effective use of existing resources, becomes the rule. Although many state constitutions use the word “efficient” to describe the constitutionally mandated education system, efficient use of public tax dollars is the last thing most courts consider in adequacy cases. Most courts have ducked this issue by simply ruling that, if such problems are present at the local level, the state is also liable for them. A good example is the case of Campaign for Fiscal Equity v. State of New York, where the state introduced extensive evidence of waste, fraud, and mismanagement in the New York City public schools, including a teachers’ contract that (incredibly) limited the time a teacher could spend teaching classes to three hours and 45 minutes a day. Despite this powerful evidence, the court did not rule on whether local waste and mismanagement constituted a significant cause of inadequacies in the city’s public schools. Instead, it ruled that, if such problems existed, they were also the state’s to fix. The court totally ignored what should have been the critical issue in the case: whether then-current funding (approximately $10,400 per student at the time, or over $250,000 per classroom) would be adequate if waste and mismanagement at the local level were eliminated.

• Local control of schools will be seriously eroded. As the U.S. Supreme Court has noted on several occasions, “local autonomy of school districts is a vital national tradition.” Unfortunately, this tradition has been largely ignored in adequacy cases. Decisions holding states financially liable for the spending decisions of local school districts have eroded local control, and with it, responsibility. If this trend continues, more state supervision and less local autonomy will be the obvious outcome. Some will see this as a positive outcome, especially where the local school systems have proven to be inept. But for those who view local control of schools as a time-honored American tradition, the increase in state control will be anathema.

• Standards will be lowered. Ultimately, the standards movement may be another casualty of adequacy litigation. Proponents of adequacy litigation have embraced the high academic standards set by most states because such standards provide specific benchmarks by which to measure whether an adequate education is being offered in the state. But if states continue to be held financially liable when significant numbers of students fail to meet these often-aspirational standards, it is a very real possibility that such standards will be lowered or indefinitely deferred. At some point, the rubber has to meet the road.

• Our democratic institutions will be weakened. The separation of powers among the legislative, executive, and judicial branches of government is the foundation of our federal and state constitutions. Adequacy cases can strain the traditional relationship between the judicial and legislative branches of government to the breaking point. For example, in Kansas, a local court recently prohibited any further spending on the state’s schools until the legislature complied with its order. A crisis has been averted for the time being by an order of the Kansas Supreme Court staying the lower court’s order, but the Kansas situation illustrates what can happen when the courts seize control of traditional legislative perogatives.

Historically, deciding how much money to spend on education (typically one-third to one-half of most state budgets), as compared to other state needs (for example, health care, foster-child care, or family protective services), has been the province of the state legislature. However, in a state that is under a court order in an adequacy case, these normally legislative decisions are subject to being second-guessed by the plaintiffs and vetoed by the courts. This abnormal situation can go on for years and even decades. In New Jersey, school finance litigation has been ongoing for over 30 years, and the end is still nowhere in sight.

While adequacy cases may benefit adults in the educational establishment, the important question is whether they are good for schoolchildren. Until this question is addressed, there is little hope that the future will be any different from the past, regardless of how much spending on education is increased.

Alfred A. Lindseth is a senior partner with Sutherland Asbill & Brennan LLP and is the head of the firm’s national education law practice. He specializes in representing states in complex school finance litigation, and has participated in “adequacy” lawsuits in such states as New York, Connecticut, Florida, Minnesota, and Missouri.