School Funding Litigation Seems Endless But Proves Essential

According to David Sciarra, executive director of the Education Law Center and lead counsel in the New Jersey school funding case, Abbott v. Burke,  “There is a decades-old and stubborn unwillingness by governors and legislators in state capitols to remedy the stark disparities in educational opportunity that mark the education landscape in most of our states.”

Noticing that states do not adequately compensate for enormous disparities in local taxing capacity from school district to school district, Eduardo Porter, writing a month ago in the business section of the NY Times, wondered: “If education is a poor child’s best shot at rising up the ladder of prosperity, why do public resources devoted to education lean so decisively in favor of the better off?”  This question is related to the much discussed international PISA scores released last week, an international score ranking in which the test scores of U.S. students in schools segregated by poverty and race pulled down the average for our society.

Even before last week’s despair about PISA scores, Porter raised the central issue:  “The United States is one of few advanced nations where schools serving better-off children usually have more educational resources than those serving poor students, according to research by the Organization for Economic Cooperation and Development (OECD).”  The OECD that conducted the research on comparative school funding equity is also the sponsor of the PISA exams.

Porter quotes Andreas Schleicher, in charge of the PISA assessments for OECD:  “The bottom line is that the vast majority of OECD countries either invest equally into every student or disproportionately more into disadvantaged students.  The U.S. is one of the few countries doing the opposite.”

The PISA scores and the OECD research that demonstrates our society’s commitment to educational inequality provide the context for a victory of sorts last week in Connecticut, where a trial court denied the state’s motion to dismiss the case of Connecticut Coalition for Justice in Education Funding (CCJEF) v. Rell.   The Education Law Center reports: “The state claimed the case lacked ripeness, was moot, and the plaintiffs lacked standing,” an interesting notion, as the plaintiff coalition includes municipalities, local boards of education, professional education associations, unions, parents, public schoolchildren and concerned Connecticut taxpayers.

The state claimed its funding system had been changed after the original lawsuit was filed (making the original lawsuit moot) and more time would be needed to see if the changes that have been made will render Connecticut school funding more equal (time needed to ripen the fruits of whatever minor changes the state has made).  The Education Law Center identifies these concepts as a new trend: “States are filing ripeness and mootness claims in an apparent effort to delay trials.” “On the basis of minor or even adverse legislative changes to their state school funding systems, Connecticut and New York claimed their funding systems were so different from the systems challenged in plaintiffs’ complaints… that those cases were rendered moot.  Furthermore, these states argued that their ‘new’ funding systems would need several years to show their impact, thus making the cases unripe for trial.”

The news release from the Education Law Center describes the impact of the recent decision: “Judge Kevin Dubay’s CCJEF opinion clearly explains that a trial on the merits is necessary to develop a full factual evidentiary record, including resolution of any issues of mootness or ripeness.”

The seemingly endless pursuit of school finance equity, of course, begins to feel like Charles Dickens’ Bleak House, the novel in which the Court of Chancery, “gives to monied might the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honourable man among its practitioners who would not give—who does not often give—the warning, ‘ Suffer any wrong that can be done you rather than come here!'” (p. 2)

But in our society where we have long been conditioned to worry more about funding the schools in our own community than developing a system where we all willingly contribute to pay for the education of all of our society’s children, school funding cases have proven themselves necessary.  In one of the best education books of 2013, Improbable Scholars, David Kirp, a professor of public policy at the University of California at Berkeley, describes the impact of Abbott v. Burke, the case litigated by David Sciarra and the Education Law Center that has driven resources to New Jersey’s poorest school districts:

“In twenty-one decrees issued over the course of nearly three decades, the justices have read the state’s constitutional guarantee of  ‘a thorough and efficient system of education’ as a charter of equality for urban youth. That 1875 provision, said the court in its historic 1990 ruling, Abbott II, meant that youngsters living in poor cities were entitled to an education as good as their suburban counterparts… In crafting its decision, the court concentrated on the state’s thirty-one worst-off districts…  Thrust and parry—beginning with its 1990 decision, the justices dueled repeatedly with lawmakers…  Money cannot cure all the ailments of public education…. but the fact that New Jersey spends more than $16,000 per student, third in the nation, partly explains why a state in which nearly half the students are minorities and a disproportionate share are immigrants has the country’s highest graduation rate and ranks among the top five on the National Assessment of Education Progress…. The additional money also helps to account for how New Jersey halved the achievement gap between black, Latino, and white students between 1999 and 2007, something no other state has come close to accomplishing.”  (pp. 84-85)

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