Equity and Adequacy

School districts and education advocates seeking better funding from their states have had success in courts, but often have to endure a lengthy process before seeing additional funding.

State legislatures are responsible for determining how much funding school districts receive. But as more school systems and their constituents see that the legislative process leaves them short of the funds needed to provide an adequate education, they turn to the courts. Though even when a district has the law, facts and court rulings on its side, the ultimate goals sought in a legal challenge — increased funding and a more equitable distribution of that money — still may be a long way off.

For instance, in a lawsuit challenging the public-school funding system in New York, a judge set a deadline for the state legislature to deal with school funding inequities. That deadline passed more than nine months ago, and the legislature still has not acted. In Idaho, the Supreme Court has ruled the state's school finance system is unconstitutional, but the case, which first reached the Idaho Supreme Court in 1993, still is bouncing through the court system after several appeals, and no remedy is in place. In Kansas, the state Supreme Court has ruled in a 1999 case that the legislature has failed to provide suitable funding for public schools, and now the case is back before the court as the judges will determine whether the changes enacted by lawmakers this year meet the constitutional requirements.

Judges can issue legal rulings that school funding laws are unconstitutional and order legislatures to fix flawed funding formulas, but in many cases, numerous appeals and the reluctance of many lawmakers to impose the increased taxes required to solve school funding shortages mean that the inequities persist.

While school officials in inadequately funded systems wait for relief from the courts, facilities continue to deteriorate, maintenance is shortchanged, and students are deprived of resources that would allow them to compete with students in more well-heeled school systems.

Despite frustrations with the slow pace of the judicial system, legal challenges of school funding formulas are the best hope for districts and communities that believe their legislature is denying them a fair slice of the education funding pie.

“We have no other choice,” says Robert Huntley, the lead attorney for the Idaho Schools for Equal Educational Opportunity, a coalition of districts who have sued the state over school funding.

Equity and adequacy

After the U.S. Supreme Court ruled in 1973 that education is not a fundamental right under the constitution, most legal challenges to school funding laws have been filed in state courts. The early cases focused on questions of equity — whether students were being treated equally regardless of the wealth of the district in which they lived. In the last 15 years or so, lawsuits have focused on adequacy — whether a state is providing local districts with enough funding and resources to provide students with an adequate education.

Molly Hunter, director of legal research for the Campaign for Fiscal Equity (CFE), a not-for-profit educational advocacy group that is the plaintiff in the case challenging New York state's school funding system, says that adequacy lawsuits have been more successful than earlier equity litigation because most state constitutions include language that spells out the state's duty to provide an adequate education to students. In some states, the terminology may be “a suitable education,” “a thorough and efficient” education, or “a sound and basic education.”

Also, Hunter says, as states embraced standards-based education reforms and developed detailed standards for schools to follow, education advocates had a stronger case when the funding that states doled out to local districts wasn't enough to meet those standards

Since 1989, plaintiffs have won 23 of 27 cases that were based on adequacy arguments, according to the CFE.

Ideally, states would define what is a suitable or adequate education, determine what the costs are, and provide the funding. But legislators tend to approach the question in a more politically expedient way. They look at how much funding is politically feasible and allocate that amount to school districts.

As state and federal governments impose higher standards on local districts, those school systems need more resources to meet those goals. Yet, as revenues decline and state funds become more scarce, legislators are hesitant to allocate more funds to education and are even more reluctant to approve additional taxes. Inevitably, schools and state legislatures must confront that conflict, and in most states, that conflict has taken the form of a lawsuit.

A ton of bricks

After 12 years of battling in court, plaintiffs seeking more funding for New York City schools won a victory earlier this year when a judge placed a precise pricetag on what it would cost to ensure students in the city school system a sound basic education. And, because New York City is the nation's largest school system, with more than 1 million students, the price tag is immense.

Judge Leland DeGrasse ordered the state of New York to devise a plan that provides New York City schools with $9.2 billion over five years for capital improvements. The ruling also directs the state “to take all steps necessary” to create a plan that will boost operational funding for New York City schools over four years by $5.63 billion a year. But even with the favorable ruling, the schools are no closer to receiving those added funds. The state legislature has failed to meet a July 2004 court-imposed deadline for addressing the flaws in its school funding formula, and Gov. George Pataki has appealed Judge DeGrasse's most recent ruling.

The $9.2 billion figure was derived from a proposal that the Campaign for Fiscal Equity has compiled. In a 2004 report, “Adequate Facilities for All,” the CFE proposes a BRICKS (Building Requires Immediate Capital for Kids) construction fund to “compensate for past state funding inequities.”

“New York State's building aid program has helped many districts improve their educational infrastructure over the last decades,” the report says. “However, New York City and certain other districts have been the glaring exception to this pattern. For example, under the current building aid formulas, New York City is reimbursed for only approximately 25 percent of its actual new school construction costs, compared with reimbursement rates of over 70 percent for some other high-need districts in the state.”

The report says New York City needs an additional 66,000 classroom seats in the city to alleviate crowding and another 52,000 seats to reduce class sizes. It calls for spending $169 million to create libraries at 125 schools that don't have one; $204 million to build auditoriums at 363 schools without one; $168 million to provide functional labs at 64 high schools, and $211 million to provide functional labs at 179 middle schools.

Other capital spending would pay for exterior modernization at 58 schools; window upgrades at 179 schools; roofing improvements at 119 schools; climate control improvements at 175 schools and heating plan upgrades at 43 schools. The system would receive $176 million to wire the 20 percent of district classrooms that are not wired; $125 million to buy new computers; and $150 million for library upgrades.

Appeals and delays

Idaho provides no state funds to aid school construction, and local districts must win the support of two-thirds of voters to pass a bond issue. Some districts, even if they could win approval of a bond issue, don't have a tax base large enough to generate the money needed for major school construction.

“With a low property value and a low per-capita income, massive increases in property taxes are not a viable option even where there is no question that a building is so dangerous to students that it needs replacement,” Judge Deborah Bail said in one of her rulings in the ongoing school litigation.

After a trial of several weeks, Judge Bail ruled in 2001 that Idaho's funding system was constitutionally deficient because of its exclusive reliance on property taxes to pay for construction and major repairs. That did not sway the legislature from its stance on facilities funding.

“A lot of people still hold on to the old idea that schools should be funded by local property taxes,” says Huntley.

The legislature reacted to the ruling with a law that did not offer any state assistance for school facility needs. Instead, the law authorized a judge to impose an unlimited property tax rate to repair or replace dangerous school facilities and prevented a judge from imposing any other remedy against the state or the legislature.

Bail ruled the law unconstitutional and the Supreme Court upheld that decision in 2004.

“Based upon the overwhelming factual evidence … (the law) does not cure the problem of the deficiency in the legislature's system of public school funding — it exacerbates it,” Bail said. “A crushing local property tax is not a minimally adequate remedy for the legislature's failure to establish a constitutionally adequate system of school funding.”

Huntley, the lawyer for plaintiffs in Idaho, says that with the review of that law concluded, the state Supreme Court is expected this summer to hear the appeal of Judge Bail's 2001 ruling.

Not every state drags its heels on school finance cases. “Some states have responded quickly and well — Vermont, Massachusetts, Kentucky, Iowa,” says Hunter.

State legislatures that have come up with satisfactory plans often have done so when economic conditions are favorable and the state has more revenue at its disposal.

“A lot of them weren't facing funding challenges,” says Hunter. “It's a little more difficult to accomplish when there are revenue problems.”

In other states, school finance cases have bounced several times from court to legislature as lawmakers try to resolve the flaws found by judges.

“Sometimes the early court decisions have been vague, and a kind of dialogue takes place with the legislature,” says Hunter. “When the courts weigh in again, they provide a little more guidance.”

In some “backsliding” states, Hunter says, legislatures adopt successful school finance reforms, but as lawmakers tinker with the provisions over the years or fail to keep up funding levels, the system again becomes constitutionally flawed.

In 1992, with a lawsuit pending, Kansas overhauled its school finance formula to address constitutional concerns. But in succeeding years, districts complained that the state did not maintain the funding levels schools required to maintain their quality. By 1999, the state was back in court defending the constitutionality of its system. Earlier this year, the state Supreme Court ruled the state was not providing suitable funding to schools and ordered it to correct the problem in its 2005 session.

The legislature adopted a plan that added $125 million in school funding this year and is now waiting to see if the Supreme Court believes the funding plan address its constitutional concerns.

“Backsliding is not inevitable,” says Hunter. “Some states have been able to maintain a funding system. But politics is politics. You need eternal vigilance.”

Sidebar: Crowded dockets

According to the Campaign for Fiscal Equity, only five of 50 states — Delaware, Hawaii, Mississippi, Nevada and Utah — have not had litigation challenging the constitutionality of K-12 school funding.

Cases are “in process” in 23 states: Alaska, Arizona, Connecticut, Georgia, Idaho, Kansas, Kentucky, Louisiana, Maryland, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, South Carolina, Tennessee, Texas, West Virginia and Wyoming.

Some of the school-funding cases have led to increased spending on facilities:

  • Ohio

    The state Supreme Court ruled that Ohio's school funding system was unconstitutional — first in 1997, then again in 2000 and 2002. Responding to court rulings, the legislature created the Ohio School Facilities Commission. The state has committed billions of dollars to school construction; local districts must pay a percentage of the costs; the amount is dependent on the wealth of the district.

  • Arizona

    Following a state Supreme Court decision, the state took control of school construction and created a School Facilities Board to oversee the state's school construction efforts. The board established guidelines that every school facility in Arizona had to meet. Since 1999, the state has allocated hundreds of millions of dollars for new construction, renovations and repairs.

  • New Jersey

    In the so-called Abbott case, the state Supreme Court ordered the state to upgrade facilities in New Jersey's 30 poorest districts, which became known as Abbott districts. The state legislature passed a bill in 2002 authorizing the state to issue $8.6 billion in bonds over 10 years for school construction and renovation; $6 billion was earmarked for Abbott districts and $2.6 billion was designated for other districts.

Sidebar: Priorities for building adequacy

In a lawsuit over school funding in Maryland, the American Civil Liberties Union, representing the plaintiffs, asked Glen Earthman, a professor emeritus at Virginia Polytechnic Institute & State University, to review criteria for school facilities that had been created by a Maryland school facilities task force and establish priorities for those criteria.

“It is critical to address issues related to student health first,” says Earthman. “… To the principal in the field, health and safety matters are of the most importance because of the possible harm that may come to a student.”

The priorities Earthman recommends:

  • Potable water.

  • Fire safety.

  • Adequate lavatories.

  • Security systems.

  • A communication system to use in emergencies.

The next priorities are those that affect student achievement the most. “There is sufficient research to state without equivocation that the building in which students spend a good deal of their time learning does in fact influence how well they learn,” says Earthman.

Priorities related to student achievement:

  • Human comfort (temperatures within the human comfort range as regulated by appropriate HVAC systems).

  • Indoor air quality (appropriate ventilation and filtering systems, also as regulated by appropriate HVAC systems).

  • Lighting.

  • Acoustical control.

  • Secondary science laboratories.

  • Student capacity.

Kennedy is staff writer for AS&U.

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