Unconstitutional Schools

Forty-two kids, crammed into one tiny classroom, squish together on countertops because they lack desks. They lack textbooks too; the ones that they have are outdated or shredded. The roof leaks into a permanent, strategically placed bucket. Their poorly trained teacher feels overworked and overwhelmed. And the school’s principal must decide whether to spend their limited funds on fixing the broken water fountain (if anyone ever shows up to fill the work order), hiring a second high school science teacher, or updating the antiquated curriculum materials.

Nearly fifty years after Brown v. Board of Education, public schools in this country, especially those in poorer districts with high populations of minority students, still have problems. In 1985, a non-profit school advocacy corporation in Kentucky, the Council for Better Education, decided to stop this sort of bare-bones survival and try a different tactic, one that has been attempted in more than a dozen states since. Bad schools were not just a shame, argued the organization, which currently represents more than 160 of the state’s 176 school districts–bad schools were against the law. In the landmark case of Rose v. Council for Better Education, the Kentucky Supreme Court found that its state’s school system violated the State Constitution, specifically Section 183, which calls for “an efficient system of common schools throughout the state.” As the court’s Chief Justice, Robert Stephens, explained in his majority opinion, “It is crystal clear that the General Assembly has fallen short of its duty.”

A wave of equality suits followed the Brown decision, and many of them led to forced integration. But these suits did not suffice to guarantee educational quality. The next generation of school reform suits draws upon state constitutional language not only for the Equal Protection clauses commonly used in the post-Brown era, but also for sections that require a standard of “efficiency,” a legally “adequate” education. This new wave of lawsuits, including Sheff v. O’Neill in Connecticut, Campaign for Fiscal Equity v. State in New York, and Williams v. California, are following Kentucky’s lead in their attempts to turn poor public school quality into a legal issue that should be solved in the courts.

The turn to the courts reflects advocates’ frustrations with unwilling taxpayers and squabbling politicians. When taxpayers do not want to spend money on schools, legislatures turn to increasingly desperate measures–like those in Oregon last spring, in which many school districts decided to end the school year weeks early to save money. And even when a state is willing to allocate more money to education, conservatives and liberals argue about how it should be spent. Conservatives largely support “outcomes-based” programs, like financial incentives for schools that achieve higher standardized test scores, while liberals tout “input-based” plans that give more money to schools in disadvantaged neighborhoods. The dispute often leads to deadlock, which preserves the status quo.

But in the courts, proponents on either side of the bench often find it just as difficult to define an “adequate” or “efficient” education. For example, the West Virginia Supreme Court claimed that an “efficient” system is, among other things, one in which students “develop to full capacity” their “creative interests.” The Rose plaintiffs’ expert witness, Dr. Kern Alexander, called an “efficient” system one that is “unitary, uniform, adequate, and properly managed.” And according to the majority opinion in Rose, an “efficient” educational system must “provide each and every child” with seven factors, including communication skills, understanding of economic, social, and political systems, physical and mental health knowledge, a “grounding in the arts,” and preparation to compete economically. These are noble goals, but difficult if not impossible to measure objectively–and even more difficult to translate into standard educational practice.

A further problem is that any theoretical definition of an “efficient” system must translate into concrete policies of state legislatures and school boards–a level of detail that courts hesitate to touch. In 1989, Elizabeth Horton Sheff, the mother of a fourth grader in Hartford, Connecticut, filed suit against the state for not providing her son with the quality, integrated education guaranteed by the State Constitution. Seven years later, the state Supreme Court ruled that Connecticut’s extremely segregated schools did violate the constitution. But, wrote Carole Bass, Associate Editor of the New Haven Advocate, “The court ordered the legislature to fix the problem without saying how. Five years later, lawmakers had done almost nothing. Hartford schools remained 95 percent black and Latino.”

Finally, after watching the legislature “sit on its hands” for years, the plaintiffs in Sheff v. O’Neill went back to court in December 2000 to force the state to expand both the city’s magnet school program and a voluntary busing program called Project Choice. These programs, intended to lure Hartford-area suburbanites into the city’s public schools, have already proven hugely successful, though on a tiny scale: currently, any city or suburban family that wants to enroll a child in one of Hartford’s existing magnet schools needs to join a lengthy waiting list. In January of this year, the parties of Sheff v. O’Neill came to an agreement, and an expansion plan is in the works to reach 30 percent of the black and Latino students of Hartford by 2007. But even within this relatively paltry victory, which leaves over 70 percent of the city’s minority children in profoundly segregated and low-performing inner-city schools, Bass predicts that progress will continue to be slow. While a court order imposes urgency upon problems that have been simmering for decades, a broad mandate alone often fails to jog the complacency of a financially strapped legislature.

Clearly, legislatures need more than just legal imperatives to propel them forward. Following the Rose decision, which like Sheff provided scant detail on how to solve the problem, a task force created in the fall of 1989 provided the political muscle needed to pass the Kentucky Educational Reform Act. The act, which one proponent called “the most comprehensive and bold effort of any state in this decade to improve its common schools and to increase learning for its youth,” dramatically increased the effectiveness of the Supreme Court’s decision. Tens of thousands of Kentucky students now take yearly performance tests, the results of which are made public and determine the grant of cash awards to schools which exceed their “performance accountability goals.” Additionally, among other reforms, programs that provide family services and extended school services to at-risk pupils have multiplied throughout the state. The per-pupil expenditure gap between rich and poor districts has narrowed and reversed to the point that, by the year 2000, the poorest districts in Kentucky were receiving $133 more per pupil yearly than the richest districts in the state. And teacher standards have been implemented by the new Educators Professional Standards Board–with accountability mechanisms in place. 

While these results are promising, public education in Kentucky is not ideal–the highest spending per pupil in the state, at $5,450, is still low compared to that of, for example, New York’s $8,598, nor does Rose provide incentives for continual improvement over time. Still, the Rose case serves as an inspiration and important precedent for other states that face similarly dire educational situations. In California, the American Civil Liberties Union of Southern California and San Francisco law firm Morrison and Foerster represent approximately 1 million California school children in an attempt to prove that California’s schools are also unconstitutional. Michael Jacobs, one of Morrison and Foerster’s lead lawyers, hopes that Williams v. California will “trigger a new focus by policy-makers on dealing with the problems we’ve identified.” Specifically, the plaintiffs want California to set minimum standards of school quality along the lines of existing standards for student achievement. The suit describes a plan that would track schools to determine which ones are missing “essential learning tools and conditions,” promptly provide those missing tools and fix conditions deemed inadequate, and “provide basic educational necessities” to all pupils.

The state’s experts, unsurprisingly, do not align themselves explicitly against good education, or even qualified teachers, up-to-date texts, and clean classrooms. They argue, rather, that although the state government provides a relatively high 59 percent of total educational funding to districts, its role in ensuring educational equality is much more limited than the plaintiffs contend; where there are problems, those problems are the fault of the districts. Expert witnesses like Stanford economist Eric Hanushek take issue with the way the plaintiffs are trying to correct the vast inequities in California education. Hanushek claims in his testimony that, while inequities certainly exist, “the policies advocated by the plaintiffs provide no change in performance incentives and thus provide no real hope of leading to better outcomes.” Hanushek dismisses most of the plaintiffs’ claims as irrelevant, explaining, for example, that “Student learning is less related to whether the school is ‘state of the art’ than to other factors” such as socioeconomic status.

Still, the state has never gone so far as to say specifically that districts currently have enough money to succeed, and has steered clear of the question of what level of funding is enough. In Campaign for Fiscal Equity v. State, decided this past June, the New York Court of Appeals asked New York State to resolve this very question. It ruled that the state operated a school finance system that led to constitutionally inadequate education for New York City schoolchildren. The court gave the state legislature and governor until the end of May 2004 to identify and appropriate the funds necessary to provide adequate teaching, class sizes, and “instrumentalities of learning.” As to the dollar amount and the dispensation of those funds, the court did not offer specific guidelines, but the long list of findings, detailing various school failures, suggests that amount will be considerable. It remains to be seen by what proportion per-pupil funding will increase in New York City, how exactly it will be partitioned, and whether that will make for “constitutionally adequate funding,” let alone constitutionally adequate education.

As Morrison and Foerster’s attorney Jacobs explains, the plaintiffs’ goal in Williams is just such a set of basic standards of adequacy lacking in other cases, as well as the institution of a system for its oversight: “the first thing to do is gather data, then figure out curative measures.” The plaintiffs are not arguing for a simplistic, input-based solution. Rather, claim their expert witnesses, an alarming lack of expertise at the district level calls urgently for state intervention–not just more money, but experienced people who know how to manage it strategically and efficiently. “We propose, urge, demand that the state say, ‘here are the standards,’ and measure the way they’re not being met and why,” says Jacobs. They remain open to the possibility that such measurements should lead to the outcomes-based programs that Stanford’s Hanushek touts and that the Kentucky Educational Reform Act has tried already.

To Jacobs, the most shocking part of the case is that the state’s experts, in arguing that socioeconomic status is by far the most important factor that drives student performance, imply that none of the plaintiffs’ complaints really matter. The plaintiffs are already handicapped by the fact that few state surveys exist to document the disastrous conditions in impoverished school districts; if they cannot prove that rat-infested bathrooms bring down test scores in what are largely minority and non-English-speaking student populations, then does that negate their case to remedy the situation? “This is why I took this case: because there are people out there who don’t think it matters if a kid has a meaningful opportunity,” says Jacobs adamantly. “Personally, I don’t care about averages. We’re comparing well-running schools with fallen-apart schools, dysfunctional schools. It’s a step function, not a curve.”

The central merit of the latest succession of education lawsuits is to put that step function on the political agenda. Once a court finds an education system in violation of its State Constitution, political differences must somehow, at some point, be resolved in order to set broad systemic change in motion. Following this January’s Sheff decision, Connecticut’s Attorney General, Richard Blumenthal, addressed the people of his state, attempting to mollify their individual grievances and simultaneously turn their energies toward positive change: “whatever our disagreements with the Sheff decision… we should view the future with optimism.” Acknowledging that the kind of “specific standards” California’s plaintiffs seek–and New York’s ruling requires–were not provided by the court, Blumenthal assured the people of Connecticut of the pressing importance of the matter. Through all of the inevitable budget constraints and legislative battles, Blumenthal said, “we must focus on what has always been a moral and social obligation, and now clearly is a legal imperative: to urgently improve the diversity and quality of our schools and ensure enhanced educational achievement for all our children.”