Revised 5/18/98
SCHOOL FINANCE LITIGATION IN THE NAME OF EDUCATIONAL EQUITY: ITS EVOLUTION, IMPACT, AND FUTURE
Paul A. Minorini and Stephen D. Sugarman
I. Introduction
Since the 1960s in America, individuals and groups seeking an increased level or share of valued public benefits have often turned to courts for assistance, hoping thereby to achieve their goals outside the traditional political process. Courts have been especially receptive to these pleas when made by the politically powerless with respect to matters of fundamental importance.
As this new judicial activism started taking hold, lawyers and scholarly advocates turned their attention to the financing of our public schools. They focused on the way in which most states have historically relied on local property taxes as a substantial source of funding public education (Enrich, 1995:104). Those early advocates (and many subsequent legal scholars) viewed equity as an essential component of the principle of basic fairness. Yet, traditional school finance arrangements, they argued, created grave inequities for children in the availability of educational resources and opportunities. In light of the enormous importance of education, it is not surprising, therefore, that those inequities have been the subject of intense litigation.
What is perhaps surprising, however, is the predominantly state law and state court character of this litigation. Federal courts and federal law have played the central role in lawsuits concerning other aspects of public education such as school desegregation, student rights to free expression, and the needs of the disabled and pupils with limited-English proficiency. But the federal constitutional challenges to school finance inequalities that were brought in the late sixties and early seventies were ultimately unsuccessful.
Nevertheless, school finance litigation has flourished in state courts. In these
cases, challengers have relied on equal protection clauses(1)
and/or education clauses(2)
contained in state constitutions. By now, lawsuits challenging the legality of state
systems of public school finance under state constitutions have been brought in at
least 43 states. In 19 states, courts have declared school funding systems
unconstitutional and have ordered reforms -- with varying degrees of specificity and
success. Court decisions in 24 states have rejected school finance claims. In nine
of those latter states, however, challengers subsequently sought relief under a
different legal theory, and most of those cases are currently pending. If history is
any guide, school finance litigation promises to remain active well into the next
century, at least in those states with perceived educational "haves and have nots." This Chapter examines where school finance litigation has been, how it has
evolved, what it has accomplished, and where it seems to be going in the next
century. Despite very dramatic state-to-state differences, it is fair to say that courts
across the nation increasingly have become a voice in the school finance debate. As
will be seen below, however, the final resolution of complex school finance issues in
nearly all states continues to be determined largely through the legislative and
executive processes. II. Early Thinking: Wealth-Based Discrimination and the Federal Constitution During the late 1960s, several scholars and lawyer activists began examining
America's system of school finance, in which, everywhere but in Hawaii (which has
a single statewide system) and the District of Columbia, money raised by local
school districts through local property taxes was the heart of the scheme. These
newcomers to the world of school finance learned what experts in the field had long
known -- that, by giving local governments the primary power and responsibility to
raise funds and set spending levels in public schools, states had created systems
which substantially advantaged some children over others. Notwithstanding the
then recent publication of the Coleman Report (1966), which raised doubts about
how much money really mattered in terms of improving student outcomes, these
scholars and activists found a great deal unfair about the funding of the nation's
public schools. Yet it is critical to appreciate that these early reformers put forward rather
different legal theories, which in turn had very different implications for the role of
judges and legislatures in changing the way public schools would be financed. In
other words, although each claimed that the existing system violated the requirement
of the Fourteenth Amendment to the U.S. Constitution that states not deny
individuals "equal protection of the law," they differed greatly as to what equal
protection required. Arthur Wise was one of the first to lay his ideas out in print (Wise, 1968).
Simply put, for Wise the problem was that school spending varied dramatically from
school district to school district within most states. Indeed, in many states high-spending districts were able to lavish two, three and in some cases even four or
more times as much per pupil on their students than what low-spending districts
were able to spend on their students. The legal challenge he developed drew upon two other important judicial
developments in the sixties -- the school desegregation cases and the
reapportionment cases. Based on the school desegregation cases, Wise argued that
public education was a "fundamental interest" for equal protection purposes, and
thus could not be distributed unequally within any state absent a "compelling state
interest" for doing so (and, he argued, there was no such compelling interest).(3)
Drawing on the "one man-one vote" principle of the reapportionment cases, (4)
Wise
advanced a similar standard for public school finance -- one scholar-one dollar. In
short, under Wise's theory the federal equal protection clause required an end to the
main evil he had identified -- unequal spending from district to district. This push
for dollar equity is what some scholars (Berne, 1998) have referred to as horizontal
equity. Looking at the same spending patterns, UCLA law professor Harold
Horowitz turned to a very different area of the law from which he developed the
principle of geographic uniformity (Horowitz, 1966 and 1968). He argued that, like
a state's law governing murder, school spending could not vary from one place to
another within a state based on geography alone. To many, the implication of this
argument appeared to be the same as would follow from Wise's principle -- uniform
per pupil spending statewide. But this was not necessarily so. Under Horowitz's
theory, a legislature might decide, for example, to spend more money on disabled or
at-risk children. If it turned out that there were disproportionately more of those
children in some school districts than in others, then more per pupil on average
would be spent there. Such district to district differences would be acceptable under
Horowitz's principle, however, because those differences would be based on
student need and not geography. (By contrast, it was not entirely clear just how
Wise's "one dollar-one scholar" principle might, if at all, accommodate differential
spending based on different pupil needs.) Some legal aid lawyers who tackled the issue found both the Wise and
Horowitz principles ill-suited to their purposes and developed an alternative theory.
They focused primarily on unequal student need -- and the resulting imperative, as
they saw it, to spend more than average on the schooling of low achieving children
from low income families, many of whom lived in urban areas. Wise's equal
spending rule would clearly not suffice. Horowitz's geographic uniformity theory,
as we have explained, only permitted, but did not mandate, what these advocates
sought to have the courts require. The basic thrust of the legal aid lawyers' "needs-based" constitutional claim
was that rich and poor children had a right to have their educational needs "equally"
met, and that required unequal spending. (This calls for what some scholars have
termed vertical equity (Berne, 1998).) The legal aid lawyers and their clients got to
court first. A central difficulty with the needs-based claim existed, however. How much
spending does any child, or class of children, "need"? If "need" implies a level of
school spending necessary to achieve some sort of educational "outcome" standard,
then exactly what outcome? And if "need" is not about outcomes, what is it about
that a court could say anything definitive about? Would a court order whatever
spending education experts thought is "needed"? But which experts? And
"needed" for what? In other words, the problem lay in identifying an acceptable
constitutional principle for courts to announce that contained the certainty and
clarity that seemed necessary (at least at the time) before the claimants had any
hopes of winning an equal protection case. Federal courts were indeed troubled by just such questions when faced with
those early needs-based claims, and these suits were promptly dismissed.(5) McInnis
v. Shapiro, a 1968 Illinois case, was first. The federal district court panel rejected
the claimants' theory precisely on the ground that it could not discern any judicially
manageable standards to gauge what students' needs were and whether they were
being met. A similar conclusion was soon reached by a federal district court panel
in Virginia in Burrus v. Wilkerson (1969). The Burrus court concluded that "courts
have neither the knowledge, nor the means, nor the power to tailor the public
moneys to fit the varying needs of these student throughout the State" (Burrus,
1969:574). Both McInnis and Burrus were appealed to the U.S. Supreme Court,
where they were affirmed without comment. Advocates would have to wait several
more years for the nation's highest court to opine on the merits of school finance
challenges. In addition to the Wise, Horowitz, and needs-based approaches, a fourth legal
strategy for attacking school finance inequities emerged in the late sixties (Coons,
Clune and Sugarman, 1969; 1970). Working at Northwestern University Law
School, Professor John Coons and two of his students, William Clune and Stephen
Sugarman, developed a theory that combined a concern about poverty with the idea
that education was a constitutionally fundamental interest. In this respect, their legal
strategy was not unlike that of the legal aid lawyers. But the Coons team cast the
shortcoming of America's school finance systems in a very different way. To them,
the constitutional evil was that the "poor" school districts had very little property
wealth to tax in order to support their local schools, whereas "rich" districts had lots
of it. To be sure, states offset some of the rich districts' wealth advantage through a
variety of state aid formulas. Those formulas, generally speaking, sought to assure
all pupils some minimum level of spending. But enormous wealth advantages
remained. Furthermore, the poor districts tended to impose on themselves much
higher tax rates per dollar of assessed value of property than did their wealthy
counterparts. Yet despite the greater "effort" made through these higher tax rates
(and notwithstanding the state aid they received), property-poor districts still
generally wound up with much less money per pupil to spend. This wealth discrimination, argued the Coons team, was unconstitutional.
They dubbed their core legal principle "Proposition I" (later referred to as the theory
of "fiscal neutrality"): the quality of public education--measured most commonly by
looking at dollar inputs--may not be a function of wealth other than the wealth of
the state as a whole. Unlike the needs-based theory of the legal aid advocates, because Proposition
I attacked the formal structure of school finance systems, it would be relatively easy
for the courts to apply. Moreover, so long as the amount of resources available to a
pupil was not determined by the amount of the district's local wealth, it left room for
the state to choose among several finance options. Under Proposition I, states could
adopt Wise's one dollar-one scholar idea. But states also could elect to spend more
on educationally needier poor children than on children from other families -- the
goal of the legal aid lawyers. Moreover, in contrast to Horowitz's theory,
Proposition I also allowed geographic-based differences in spending. For example,
if two districts were equally wealthy, it would not be unconstitutional for one to
choose to spend more than the other by taxing itself more. Put differently, the
Coons team sought to end the long-existing politics of school finance in which the
poor districts were pitted against the rich ones, and replace it with a politics that
concerned itself more with educational objectives. To demonstrate how a new school finance scheme could meet their principle
of fiscal neutrality and yet tolerate geographically different spending levels, Coons
and his colleagues developed a mechanism that they called "district power
equalizing." That system sought, through the use of a state aid formula, to make
every district effectively equally wealthy. Once that was assured, the state might
permit districts to tax as high or low as they wished; the resulting geographic
inequalities would be allowed under Proposition I because they would reflect
differences in tax effort, not wealth. Coons and his colleagues emphasized this
possible "remedy" because they recognized the traditional importance of local
control over education and anticipated the reluctance of the federal judiciary to
override that control. Significantly, under the Coons team's theory, the objectionable discrimination
on the basis of poverty was not based on personal poverty. It was rather school
district poverty as measured by the assessed value of property per pupil that a
district could tax. Low property wealth per pupil might have been a good proxy for
concentrations of family poverty in some districts, and, indeed, the low wealth
districts tended to be home to lower income families. But this certainly was not the
case in every district. In fact, many large cities were relatively "wealthy," often
containing some well-to-do families and, more importantly, lots of valuable
commercial property. As a result, despite having many poor residents, large cities
often spent more on their students than the statewide average per pupil, although
usually considerably less than was spent in nearby wealthy suburbs. This made the
Coons team's theory unattractive to at least some of those legal aid advocates for
poor children living in large urban centers, whose goal was to achieve "equity" in
opportunity for the pupils they represented even if that meant more unequal state
spending. But unlike the claims of the lawyers who brought the earlier needs-based
cases, the Coons team's legal theory was soon embraced in two extremely important
cases -- by the California Supreme Court in Serrano v. Priest (more on that in the
following section) and by a lower Texas federal court panel in Rodriguez v. San
Antonio Independent School District.(6)
As a result, it appeared for a short time that
the federal Constitution -- and the Coons team's "Proposition I" -- would indeed
play a central role in shaping America's school finance system. However, that lower court ruling in Rodriguez was appealed to the U.S.
Supreme Court, and in 1973, in a narrow 5-4 decision, the Court rejected the Coons
team's theory and dashed all of the advocates' hopes for a federal remedy to school
finance inequities. Rodriguez, 411 U.S. 1 (1973). The plaintiffs in Rodriguez consisted of a class of children throughout the
state of Texas living in districts with low per pupil property valuations. In line with
the Coons team's theory, they claimed that the Texas school finance system's
reliance on local property taxation unfairly favored more affluent districts, creating
substantial inter-district disparities that violated the equal protection clause of the
Fourteenth Amendment. The plaintiffs asserted -- and the lower court agreed -- that
as a matter of federal constitutional law, education was a "fundamental interest" and
wealth was a "suspect classification," thus requiring the application of "strict
judicial scrutiny" to the state's wealth-based school finance scheme. With no
"compelling interest" in discriminating against low wealth districts, the Texas plan
(and by implication the school finance plans of virtually every state) would have to
change. The Supreme Court majority found several things wanting in the plaintiffs'
case. First, the Court rejected the plaintiffs' invitation to treat wealth generally as a
"suspect classification," (as it had treated race, for example) thereby triggering the
need to justify unequal treatment with a compelling reason.(7)
Moreover, and in any
event, the Court distinguished a group of prior decisions upon which the Coons
team relied. The two most important of them involved states denying people access
to divorce and to an appeal of a criminal conviction. But the Court emphasized that
in those other cases a class of indigent persons were completely precluded from
enjoying the desired benefit (Rodriguez, 1973:20). By contrast, the plaintiffs in Rodriguez could not demonstrate to the Court's
satisfaction that the Texas school finance system disadvantaged any class of persons
fairly definable as indigent or with incomes below any designated poverty line. On
the contrary, as noted above, the primary basis for the plaintiffs' claims was
discrimination based on district, not personal wealth. And as the Court observed,
there was no necessary correlation between the two. Also, unlike the prior cases, Rodriguez did not involve an absolute
deprivation of any benefits since all of the plaintiff children were receiving a free
public education and their districts were assured at least some minimal level of
funding. The Court also decided that it would not treat education, as it had treated the
right to travel for example,(8)
as a "fundamental interest," any infringement of which
was subject to strict judicial scrutiny. The Court acknowledged the "grave
significance of education both to the individual and to society," but nevertheless
concluded that the importance of a government service to society does not
determine that service's fundamentally for purposes of an equal protection analysis
(Rodriguez, 1973:30). For the Court, a right was fundamental only if either
explicitly or implicitly guaranteed by the Constitution, and neither was the case with
respect to education. (Nearly a decade later in Plyler v. Doe, 487 U.S. 202 (1982),
the Court arguably came out the other way on the question of whether education is a
constitutionally fundamental interest, but that case, unlike Rodriguez, involved an
absolute denial -- illegal immigrant children were barred from school entirely.) Recognizing that the Court might take a narrow view of education as a
constitutionally fundamental right, the Coons team, as friend of the court, argued
more broadly that education was fundamental because it enabled people to exercise
effectively their right to vote and their First Amendment right to free speech. The
Court, however, sidestepped that First Amendment argument. Again, because
Texas guaranteed pupils at least a minimum level of spending, the Court expressed
doubts that the differential spending levels alleged by the plaintiffs really interfered
with any First Amendment rights, both as a constitutional matter and empirically
(Rodriguez, 1973:36, 42). Having rejected the application of the strict scrutiny test, the Court's majority
next asked whether Texas had a "rational basis" for its finance scheme, and the
tradition of local control over education easily provided such a basis. Three justices dissented in Rodriguez, broadly endorsing the Coons team's
legal theory. A fourth, Justice White, dissented on narrower grounds, concluding
that the Texas school finance system effectively denied local control to poor
districts and thus was irrational. As he saw it, property-poor school districts did not
have any control over their inability to raise revenues for education, and in fact were
often forced to tax their meager resources at rates much higher than the wealthier
districts. It became clear from the opinion that the Rodriguez majority's reluctance to
involve the federal courts in state school finance issues was importantly driven by
concerns about federalism. As the Court observed, "it would be difficult to imagine
a case having a greater potential impact on our federal system than the one now
before us, in which we are urged to abrogate systems of financing public education
presently in existence in virtually every state" (Rodriguez, 1973:44). The Court
expressed further concern about the delicacies of the state/federal relationship,
noting that "the judiciary is well advised to refrain from imposing on the states
inflexible constitutional restraints that could circumscribe or handicap the continued
research and experimentation so vital to finding even the partial solutions to
educational problems and keeping abreast of ever changing conditions" (Rodriguez,
1973:43). It is also worth noting that these early school finance cases, as well as most
subsequent ones, were in no respect cast as matters of racial discrimination. The
decision to leave race out was partly based on the fact that, with the end of the
system of separate black and white schools in the wake of Brown v. Board of
Education, there was no longer any formal structural discrimination against blacks
in the funding of public schools; and it was partly a matter of uncertainty as to
whether blacks as a class would really be helped by successful school finance
litigation. Advocates certainly believed those black children living in low spending
districts would benefit, but many African-Americans were increasingly living in
cities where the school finance problems, if any, were far more complex than simply
having a low property tax base and, as a result, spending less per pupil than
elsewhere in the state. Rodriguez abruptly cut off efforts to reform unequal state school finance
systems through federal litigation based on the U.S. Constitution,(9)
but it certainly
did not end the school finance litigation reform effort. III. Turning to State Constitutions A. Overview With the door to federal courts closed by Rodriguez, and faced with the
persistence of large disparities in the availability of educational resources and
opportunities, advocates turned to state courts for relief. That state court litigation
has persisted since the early seventies and has reflected the variety of legal theories
initially advanced by reformers in the late sixties. And in 19 states, as noted above,
litigants have succeeded in having their state school funding system -- and in some
cases the entire education system -- declared unconstitutional. While results in the
state cases have been mixed (24 cases rejecting the plaintiffs' claims, with nine of
those states embroiled in new legal actions), the litigation certainly has been a force
in shaping school finance debates nationwide. (One has to be cautious when using
any "scorecard" of these cases. In some states, litigation never reached the state's
highest court. In other states, such as Missouri and Oklahoma, the mere threat of a
lawsuit, or its filing alone, has been enough to bring about some school finance
reform. A court decision subsequently upholding the reformed system would mean
something very different from a defense victory in other states.) Many of the state court decisions striking down their state's school finance
scheme rely on the state constitution's equal protection clause.(10)
Early on it became
clear that, despite similar wording, a state court might interpret its own state
constitution's equal protection clause differently than the federal Constitution's.
For one thing, the state court might declare education to be a fundamental interest
and/or school district wealth a suspect classification for purposes of state
constitutional law, even if these propositions do not apply in federal constitutional
litigation.(11)
In that event, the state court would likely follow the reasoning
expressed by the group of three dissenters in Rodriguez. Alternatively, a state court
could follow the lead of Justice White and find its state school finance system
irrational.(12)
Many other state courts have relied in whole or in part on state constitutional
provisions specific to education in deciding school finance cases. Some of those
decisions use the state constitution's education clause to buttress the equal
protection analysis, relying in part on the presence and content of the education
clause to support treating education as a fundamental right (Enrich, 1995:107).
Others, however, interpret the education clause independently -- as itself requiring
some degree of equity in educational funding or opportunity (Underwood, 1995:511;
Enrich, 1995:108). In reviewing state school finance cases, it is important to keep in mind both the
particular state constitutions on which the courts rely and the tradition of judicial
review in the particular state. Many state constitution education clauses provide that
the state shall provide for a "thorough and efficient" system of public schools; others
merely require "efficient," still others call for "ample" and so on. Moreover, beyond
its words, each state constitution has its own political history and its own prior
history of judicial interpretation.(13)
Hence, while some scholars (McUsic, 1991;
Thro, 1993) have attempted to categorize state education clauses based upon their
wording so as to be able to predict results in school finance cases, there in fact seems
to be little correlation between the language per se and the likelihood of success in a
given suit (Underwood, 1995). Plaintiffs in a traditional state constitutional school finance equity case --
whether grounded in the equal protection clause, the education clause or both --
typically allege that a state's method for funding public schools is inequitable,
because it makes the amount of resources available to local school districts a
function of the property wealth located in that district. This reflects the
predominance gained by the Coons team's theory described above.
Understandably, then, plaintiffs focus their evidence in such cases on disparities in
the tax bases and financial resources available to schools in high property-wealth
and low property-wealth school districts and the resulting disparities in educational
opportunities available to students. Some other state court advocates have sought primarily to eliminate the
spending gap between high-wealth and low-wealth school districts. For example,
they oppose the district power equalizing scheme that the Coons team developed on
the ground that, as they see it, a child's education should not depend upon the
willingness of voters in the community to make a certain tax effort in support of
education. As a result, these advocates appear to favor legal remedies that more
reflect Wise's theory. More recently, however, advocates have begun pursuing state law claims that
are very different from those advanced by either the Coons team or Wise. These
cases are focused on ensuring that all students in a state have equitable access to
adequate educational opportunities that are reasonably designed to allow them to
achieve expected educational outcomes.(14)
Such cases rely primarily on a state
constitution's education clause, with the plaintiffs' evidence typically focusing on
the inadequacy of educational opportunities offered in one or more school districts
in a state as demonstrated in part by the inability of students in that district to meet
state or other contemporary education standards. An "adequacy" claim does not complain about disparities in funding among
school districts per se, but instead alleges that one or more districts lack the
resources necessary to provide students with adequate educational opportunities. In
effect, these advocates charge that our schools are failing their clients, that more
money is needed to serve them properly, and that the state constitution requires that
increased spending. Because the legal remedies sought typically ask that the state
provide complaining school districts with the resources necessary to afford students
the opportunity to achieve desired educational outcomes, it matters not that such
additional resources may result in those districts receiving higher levels of resources
than other districts. Quite plainly, then, this new "adequacy" approach is in
important respects a revival, in state court, of the legal aid lawyers' "needs-based"
claims of the late 1960s. As discussed below, several themes have emerged from cases both accepting
and rejecting constitutional challenges to school funding schemes, and those themes
highlight the strengths and limitations of the various legal theories. In the end,
however, regardless of the litigation theory pursued, the fate of a plaintiffs' school
funding challenge seems to be determined by whether a court takes a broad or
narrow view of the rights bestowed by its state constitution. B. Serrano and the Seventies The decade of the seventies was marked by the first successful state school
finance equity lawsuits in California and New Jersey. The California case, Serrano
v. Priest, perhaps the most famous school finance lawsuit, very clearly embraced the
theory of the Coons team (indeed, Coons and Sugarman participated in the oral
argument of the case before the California Supreme Court).(15)
The New Jersey case,
which started out looking like an equity case based on the Coons team's theory, has
been reshaped in several directions over the years of its seemingly unending
litigation (more on this below). West Virginia and Washington decisions from the
1970s are also significant because they moved in the direction of opportunity and
outcomes based standards of equity that, in turn, laid the foundation for the current
adequacy movement. In those same early years, courts in several other states rejected plaintiffs'
claims, referring the reformers to the legislative process to cure the school finance
system's alleged ills.(16) Like the U.S. Supreme Court in Rodriguez these decisions
reflected the reluctance of courts to get involved in difficult and complex social
policy issues relating to public school finance. 1. California The first successful state court case, Serrano v. Priest, 487 P.2d 1241 (1971)
("Serrano I"), was filed in California by a class of Los Angeles County public
schoolchildren and their parents. The plaintiffs alleged that the California school
funding system was unconstitutional because it created wide disparities in the
quality and availability of resources and educational opportunities across the state.
Plaintiffs' evidence demonstrated that in the 1969-70 school year, elementary school
districts' expenditures ranged from $407 to $2,586, while high school districts'
expenditures ranged from $722 to $1,761 (Franklin, 1987). Such disparities,
plaintiffs alleged, were the consequence of the finance system's heavy reliance on
local property taxes as a primary source of funding for public schools. The plaintiffs
claimed that the finance system violated the equal protection clauses of both the
U.S. Constitution and the California Constitution. The California Supreme Court embraced the Coons team's Proposition I,
holding that the state's school "funding scheme invidiously discriminated against the
poor because it made the quality of a child's education a function of the wealth of
his parents and neighbors" (Serrano I, 1971:1244). The Court recognized that the
right to an education in was a fundamental interest that could not be conditioned on
wealth, and could identify no compelling state purpose necessitating the present
method of financing. The Court squarely rejected the defendants' asserted compelling interest in
promoting local control over the financing and operation of schools. According to
the Court, local control was a "cruel illusion" for property poor districts, where,
because of the lack of taxable wealth, residents effectively had no control over how
much to spend on their schools (Serrano I, 1971:1261). It appeared initially that the Serrano I decision relied primarily on the U.S.
Constitution's Fourteenth Amendment in reaching its holding, as the lawyers had
urged. But a few additional words were put in the opinion noting that the California
Constitution's Equal Protection Clause also was applicable (Serrano I, 1971:1249,
note 11). Later, in its 1976 decision evaluating the sufficiency of the legislature's
response to Serrano I, the California Supreme Court explicitly held that the federal
equal protection analysis it had advanced in Serrano I was equally applicable to the
California Constitution's equal protection clause (Serrano II, 1976:951). The U.S.
Supreme Court, of course, had decided Rodriguez in between the time of the first
and second Serrano decisions. But by redirecting the focus of the California court's
analysis and embracing a wider and independent view of the California Constitution,
the California Supreme Court was able to hold firm to its prior decision. In Serrano II, 557 P.2d 929 (1976), the Court held the school finance
legislation passed in response to Serrano I was insufficient. The Court noted that
even under the new plan, "local wealth is the principal determinant of revenue"
(Serrano II, 1976:938-39). Serrano II went on to offer the state a host of
alternative school funding schemes that would avoid the pitfalls of the then current
system, including the Coons teams' district power equalizing plan. The Serrano II
decision indicated what would suffice to meet the constitutional requirement by
affirming the trial court's order requiring that, by September 1980, the legislature
implement a school funding formula that reduced any wealth-related disparities in
per pupil expenditures, exclusive of categorical aids and special needs programs, to
less than $100.00 (Serrano II, 1976:940, note 21). Shortly after Serrano II, the legislature enacted a comprehensive school
finance package that essentially adopted the Coons team's district power
equalization plan. Under that plan, a school district, no matter how poor, was
guaranteed a certain amount of revenue if it taxed itself at a specified rate. Before that legislative scheme went into effect, however, the voters of
California passed Proposition 13, which limited property tax rates to 1 percent of
the cash value of real property subject to taxation. Proposition 13 also required a
two-thirds vote of the legislature to increase state taxes and absolutely prohibited
the imposition of a statewide property tax. The passage of Proposition 13 required a
totally new method of school funding skewed toward state funding. In other words,
Proposition 13 essentially nullified the district power equalizing plan adopted by the
legislature. In its place, the legislature passed a school funding formula that relied much
more upon state revenue sources. This plan tried to achieve the equalization
required by Serrano II by allowing for minimal increases in high spending districts,
while providing low revenue districts with larger increases. Indeed, the revised
system narrowed the gap in the amount of money per pupil available to school
systems around the state to a level that the California Court in Serrano III found to
be constitutionally acceptable. Over time, however, the impact of Proposition 13
has been to slow considerably the overall growth in spending on public schools in
California, with the result that California, which used to be one of the highest
spenders on elementary and secondary education, is now well below the national
average. The California saga is sometimes pointed to as an example of how states will
be forced to level spending down in higher wealth districts in response to school
finance equity suits. However, that criticism is over-simplistic and overstated. In
fact, it is a matter of some controversy as to whether the Serrano I and II decisions
substantially influenced the passage of Proposition 13. Similarly, it is unclear to
what extent the Serrano decisions contributed to California's relative decline in
statewide spending, as compared to national averages. In any event, because of
Proposition 13, the California experience with school finance reform and property
tax relief seems to have been a unique episode. 2. New Jersey The concepts of equity and fiscal neutrality embraced in Serrano I spread
beyond California, initially to both Texas and Minnesota where lower federal courts
adopted Serrano's federal constitutional analysis.(17)
This momentum, of course, was
halted by Rodriguez. But the state constitutional branch of Serrano also proved
fertile. Perhaps most importantly, the New Jersey Supreme Court in 1973 found
that the state's school funding system -- which, like California, resulted in property
poor districts spending half as much per pupil as wealthy districts -- violated the
New Jersey Constitution. Note well, however, that unlike Serrano, the New Jersey Court based its
decision exclusively on the state's education clause whose wording guaranteed to all
students a "thorough and efficient system" of public education (Robinson v. Cahill,
303 A.2d 273 (1973) ("Robinson I")). Whereas, the central concept underlying
equal protection of the law is some sort of notion of equal treatment, state
constitution education clauses are far more amorphous and open-ended. Exactly
what, for example, makes a system "thorough and efficient"? Initially this
difference in the choice of relevant state constitutional provisions was not self-evidently important, because the New Jersey court in Robinson I seemed to treat the
education clause as imposing the same general sort of equity norms that the
California Supreme Court found in its state equal protection clause. For advocates
at the time, therefore, this appeared mainly to have the effect of opening up a new
ground in which their legal claims to school finance equity might be anchored.
Subsequently, however, state constitution education clauses have turned out to be
sources of new notions of equity and ultimately to the current round of school
finance adequacy cases (more on this below). New Jersey school finance litigation has carried on for more than 20 years,
and remains unresolved. Over the years the New Jersey Supreme Court's focus has
not been constant. The roots of this instability may be seen in Robinson I. On the
one hand, the court there announced that the education clause required the state to
afford every pupil "educational opportunit[ies] that will equip [him] for his role as
citizen and as competitor in the labor market" (Robinson I, 1973:293). Yet despite
its embrace of this qualitative notion, the Court then focused its analysis of the
state's compliance with that standard exclusively on quantitative measures of dollar
inputs. "We deal with the problem in those terms because dollar input is plainly
relevant and because we have been shown no other viable criterion for measuring
compliance with the constitutional standard" (Robinson I, 1973:295). Three years after its decision in Robinson I, the Court reviewed the
constitutionality of the legislature's response. The revised school funding legislation
relied in part on the adoption of a version of the Coons team's district power
equalization scheme, under which "each district retained the authority to set its own
school tax rate, while the state supplied aid sufficient to provide each district with
the revenues it would have reaped from its chosen tax rate had its property wealth
equalized 135 percent of the statewide average property wealth per student"
(Enrich, 1995:132). This suggests that the legislature understood that something
like fiscal neutrality was what the Court was after. At the same time, however, the
revised school law also established a mechanism for the state to adopt education
standards and monitor student's success in meeting those standards. When these reforms reached the New Jersey Supreme Court they were found
to have brought the state into compliance (Robinson V, 355 A.2d 129 (1976)). But
this time, the majority and concurring opinion focused far more on the substantive
education goals and opportunities outlined in the new legislation than on the finance
provisions. In fact, to the extent that the finance provisions were addressed at all,
the inquiry was whether they would afford sufficient financial support for the
education system, not on inter-district inequities. Put differently, the structure of
this 1976 New Jersey decision was to look first to the quality of educational
opportunities as a constitutional requirement, and then back into finance as a means
of assuring that all students have access to those opportunities. Litigation in New Jersey during the late 1980s and 1990s has incorporated
both the educational opportunity strand and the strict dollar equalization strand of
the Robinson era decisions. The Abbott v. Burke litigation, filed on behalf of a
group of the state's poorest urban school systems, has made several trips to the New
Jersey Supreme Court over the last decade. The result has been first, a requirement
that the state equalize the spending in the poorest districts to that of the wealthiest
districts, and second, the further requirement that the state provide additional
funding to the poorer districts to account for the extra educational needs that
children from disadvantaged backgrounds often have (Abbott, 643 A.2d 575
(1994)). The Court's most recent decision in 1997 moves even further in the
direction of constitutionally required educational quality, directing the state to
conduct a study of the cost of meeting the needs of poor inner city students and to
fund the poorer districts at that level. How the New Jersey legislature will respond
to this newest needs-based order remains to be seen. 3. Washington & West Virginia While fiscal neutrality (the Coons team's "Proposition I") dominated most of
the school finance literature and the scholarly and policy debates of the early
seventies, two other state court decisions in the late seventies already moved toward
towards a different notion of equity. This notion might be called equity in access to
adequate educational opportunities. Perhaps more importantly, those two decisions
established the conceptual precursor for today's educational adequacy movement.
Put generally, this approach broadens the notion of equity from one predominantly
focused on financial inequalities arising from the structure of the school finance
system, to one focused on equally providing all students what is required for them to
have a fair opportunity to achieve desired educational outcomes. This way of thinking about equity first crept into the Washington Supreme
Court's 1978 school finance ruling, which held that the state's school funding
system violated the Washington Constitution's education clause (Seattle v. State of
Washington, 585 P.2d 71 (1978)). Plaintiffs in the case were the Seattle School
District, parents, and educational advocates. They contended that the state school
finance system's reliance on "special excess levy funding" by local school systems -- which required voter approval and had failed in the last two local elections --
deprived the city school district of the funds necessary to provide students with
educational opportunities in compliance with state statutes and regulations. The Court interpreted the education clause of the Washington constitution to
require that the state fund schools in a manner that allowed them to: equip our children for their role as citizens and as potential competitors in
today's market as well as in the market place of ideas . . . to participate
intelligently and effectively in our open political system . . . to exercise their
First Amendment freedoms both as sources and receivers of information and .
. . to be able to inquire, to study, to evaluate and to gain maturity and
understanding (Seattle, 1978:94). Characterizing those outcomes as "broad guidelines," the court noted that "the
effective teaching and opportunities for learning these essential skills . . . make up
[the] minimum of education that is constitutionally required" (Seattle, 1978:95). In 1979, the West Virginia Supreme Court took the notion of equal and
adequate educational opportunities a step further (Pauley v. Kelly, 255 S.E.2d
859 (1979)). In that litigation, plaintiffs, parents of five children in Lincoln
County, brought action claiming that there was out-of-balance funding in
property-poor counties compared to those in wealthier districts. Plaintiffs'
claims relied on the state Constitution's Education Clause, which guaranteed
that the state would establish a "thorough and efficient" education system in the
state. Like the Washington court, the West Virginia Court identified a set of broad
goals for a constitutionally valid education system: "[A] thorough and efficient
system of schools . . . develops, as best the state of education expertise allows, the
minds, bodies and social morality of its charges to prepare them for useful and
happy occupations, recreation and citizenship, and does so economically" (Pauley,
1979:877). The West Virginia Court also went on to specify what such an
education would accomplish in terms of student outcomes: Legally recognized elements of this definition are the development in
every child to his or her capacity of: (1) literacy; (2) ability to add,
subtract, multiply and divide numbers; (3) knowledge of government to
the extent that the child will be equipped as a citizen to make informed
choices among persons and issues that affect his own governance; (4)
self-knowledge and knowledge of his or her total environment to allow
the child to intelligently choose life work--to know his or her options;
(5) work-training and advanced academic training as the child may
intelligently choose; (6) recreational pursuits; (7) interests in all
creative arts, such as music, theater, literature, and the visual arts; and
(8) social ethics, both behavioral and abstract, to facilitate
compatibility with others in this society. Because the case arrived in the West Virginia Supreme Court on an appeal from the
lower court's pre-trial dismissal of the action, the high Court remanded the case back
to the trial court for further hearings. On remand, the lower court declared the state school funding scheme to be
inequitable and inadequate, and ordered the legislature to develop a comprehensive
plan to bring to the entire system into constitutional compliance. The lower court
began by outlining the basic elements of a "thorough and efficient" educational
system as mandated by the constitution. Those elements were classified into broad
categories of curriculum, personnel, facilities, and materials and equipment. The
court found that the systems in existence in the plaintiff school district and many
other property-poor districts around the state were "woefully inadequate." The
court also found that the state system of financing education was discriminatory,
favoring property wealthy districts over property poor districts. Lastly, the court
found positive correlation between the quality of a county's education system and
the wealth of real and personal property (Franklin, 1987). Consistent with the role courts in such cases historically had taken, the
trial judge left the design of the plan to the legislature. In 1983, the trial court
approved the "Master Plan for Education" developed by the Legislature and
State Department of Education. That Plan called for, among other things, the
development of education standards and curricula geared to those standards,
improved facilities, and a revised school finance plan. The programmatic
remedies sparked by the high court's decisions went far beyond mere
tinkering with the state school finance formula, and instead restructured the
entire state education system. On the school finance side, the Master Plan first established a time line
and procedure for equalizing teacher salaries around the state. In addition,
revenue was earmarked to fund fully current operations expenses in all
counties. In conjunction with the new education standards developed under
the plan, the state was to conduct an analysis of the additional costs that
would be associated in each county with meeting the standards. Lastly,
several features sought to address the disparities in revenue availability that
resulted from variations in local property tax bases, including a move to
statewide excess levies and some provisions that would recapture revenues
raised in wealthy districts for use in poorer ones. Like the New Jersey litigation, however, the West Virginia litigation
has returned to court. In April 1997, in fact, the West Virginia Supreme
Court found that the State had failed to fully implement and abide by the
terms of the Master Plan. The Court ordered that the full implementation of
the Master Plan be achieved during 1998. To re-emphasize the point, the Washington and West Virginia cases
expanded the notion of equity that previously had dominated school finance
litigation. Whereas in the late sixties and early seventies, equity arguments focused
on disparities in taxable wealth and per pupil expenditures, at least some courts in
the late seventies shifted the focus more toward achieving equity in the educational
opportunities offered in particular districts and the outcomes being achieved by
students there. This shift changed not only the focus of the arguments and evidence
in school finance cases, but as the West Virginia case illustrates, it also called for
legislative remedies directed more specifically at educational programs and services,
not just revenues and expenditures. 4. State Victories Many of the lawsuits brought on behalf of school finance equity in the
seventies were unsuccessful. Courts in Oregon, Idaho, Ohio, and Pennsylvania all
rejected challenges to their state school funding systems.(18)
Those decisions relied
on rationales that would prove fatal to many other school finance challenges in the
coming decades. Some courts essentially adopted the outlook of the U.S. Supreme Court in
Rodriguez. For example, the Idaho Supreme Court in Thompson v. Engelking
(1975) expressed concern about judicial intrusion into matters traditionally reserved
for the legislature. As the Court noted, agreeing with the plaintiffs' contentions
"would be an unwise and unwarranted entry into the controversial area of public
school financing, whereby this court would convene as a 'super-legislature',
legislating in a turbulent field of social, economic and political policy" (Thompson,
1975:640). That separation of powers concern was echoed in many decisions
rejecting school funding equity challenges in the eighties and nineties. The Idaho Court also expressed some doubt as to whether equal funding had
a significant relationship to educational quality: "Assuming, arguendo, that the
Idaho Constitution requires that our public school students receive equal educational
opportunities, we cannot adopt the ultimate conclusion advanced by respondents,
i.e., that unless a substantially equal amount of funds are expended per pupil
throughout the state, subject only to natural variations such as sparsity of
population, students in those districts receiving less than that district with the
greatest expenditure per student are denied equal educational opportunities"
(Thompson, 1975:341-42). That issue of whether and how much money matters
continues to be a significant point of contention in most school finance cases today. The Oregon Supreme Court's 1979 decision in Olsen v. State (1979) picked
up on a different theme from Rodriguez. It rejected a school finance challenge
primarily on the ground that the state's asserted interest in promoting local control
justified the disparities in funding produced by the finance system. Unlike the
Serrano Court, the Oregon Court held that the fact that some districts in the state
may have less local control over spending because they have access to fewer
resources does not necessarily lead to a conclusion that the state equal protection
clause has been violated. Among other things, the Oregon court feared that if
disparities in local governments' ability to raise revenue for education led to an
equal protection violation, that same logic might be used to attack disparities in
resource availability for other government functions, such as police and fire
protection. In Danson v. Casey (1979), the City School District of Philadelphia alleged
that the state's heavy reliance on locally generated revenues to fund schools, and the
city school district's inability to raise such revenues, had led to a budget crisis in the
school district requiring dramatic cutbacks in the educational programs offered to
students.(19)
The plaintiffs contended that the finance system violated the
Pennsylvania Constitution's education clause, which required the state to provide
for the "maintenance and support of a thorough and efficient system of public
education to serve the needs of the Commonwealth" (Pa. Const. Art. III, sec. 14). The Danson court rejected the plaintiffs' claims in large part due to the
district's position of relative wealth in the state as a whole. Like many large urban
school systems, Philadelphia spent more per pupil than a large proportion of the
other school districts in the state (Danson, 1979: 365, note 10). That position of
relative "wealth" obviously bothered that court and led it to question the plaintiffs'
alleged injury. In other words, so far as Philadelphia was concerned, its pupils
appeared to be winners, not losers, if one were to apply the Coons team's
Proposition I. To be sure, a case might be made that in ascertaining a large urban district's
"wealth" (its available assessed value of property per pupil) at least two adjustments
should be made. First, urban areas faced higher costs to deliver the same product
(primarily because of higher wage costs in the cities brought about, if nothing else,
by higher living costs there). Second, because urban areas had to deliver so many
non-educational services to their population, they faced "municipal overburden"
making their actually available tax base much less than it seemed. The Coons team
discussed both of these ideas in their writing on the issue, while recognizing that to
take them into account threatened the easy judicial manageability of a simplified
application of Proposition I. Even adjustments of that sort seemingly would not satisfy the Philadelphia
plaintiffs who essentially were seeking to replay the legal aid lawyers' early needs
based theory under the state constitution. But, the Pennsylvania Court appeared to
be suggesting, its state "thorough and efficient" clause at most might assure pupils
some sort of "minimum" or "basic" level of educational opportunities, and the
plaintiffs failed to allege that they were denied that. In sum, during the 1970s, with something of a variety of theories and
demands, several state courts aggressively trod into the school finance fray that the
U.S. Supreme Court declined to enter. While plaintiffs were successful in only
about half of the decided cases, nonetheless this created a genuine school finance
litigation industry. C. The Eighties: If It Ain't Broke, Don't Fix It From 1980 through 1988, two state high court decisions invalidated their
school finance systems,(20)
while eight upheld systems as constitutional.(21)
Plaintiffs in
these ten cases relied almost exclusively on traditional finance equity claims. More
or less relying on the Coons team's Proposition I, they focused their evidence and
arguments primarily on the disparities in resource availability between wealthy and
poor school districts that resulted from the systems' reliance on local property tax
revenue as a chief source of public school funding. Judicial restraint and deference to the legislative process -- the Rodriguez
perspective -- characterized most decisions of this decade. When faced with state
equal protection clause challenges, most courts took the view that education was not
a fundamental right entitled to strict scrutiny under their state constitution
(Underwood, 1995). Applying the more deferential rational basis test, those courts
upheld their finance systems -- and the local control they fostered. So too, in response to arguments based on education clauses, most courts
during this period took a very narrow view of what those provisions required of the
state legislatures (Underwood, 1995). Courts often held that the education clauses
did not require the state to adopt any particular school funding system, and certainly
did not preclude a reliance on locally generated revenue as a source of funding for
schools. Moreover, those courts did not view the education clauses as embodying
notions of equity, and thus did not view the disparities in the availability of financial
resources for schools as a problem of constitutional significance. In rejecting traditional equity claims, many of the decisions of the eighties
also expressed frustration that plaintiffs did not allege what they considered to be
sufficient injury. Several criticized plaintiffs for failing to demonstrate that, merely
by having less money spent on them, students in property-poor school districts were
being denied their constitutional rights.(22)
Nonetheless, those same decisions rejecting finance equity claims often left
the door open to possible future cases alleging that the state was failing to afford
districts sufficient resources to provide students with the basic, or minimum, or
adequate educational opportunity that the state's education clause might require
(Verstegen, 1995; Enrich, 1995).(23)
As a result, despite initial school finance
litigation failures in Maryland, Minnesota, New York, North Carolina, and
Wisconsin, plaintiffs in each of those states later initiated "adequacy" suits and
already have been successful in two of them. Most strikingly, the North Carolina
Supreme Court ruled in 1997 that although the state constitution does not require
equality in the distribution of educational resources, it does require that all students
have access to adequate educational opportunities. The two plaintiff victories in the 1980s -- the Wyoming and Arkansas
challenges -- reflected in large part the conception of equity embodied in the Coons
team's theory. Both state supreme courts struck down their school finance systems
on the grounds that the property wealth located in a district largely determined the
amount of revenue that was available to finance education. Such wealth based
disparities were found in both cases to be offensive to the state constitutions,
although in the Wyoming case the Court relied primarily upon the equal protection
guarantees while in Arkansas the Court rested its decision upon both the state
constitution's education and equal protection clauses. D. Into the Nineties A turning point in school finance litigation seems to have occurred in 1989.
In that year alone, courts in Texas, Montana, and Kentucky declared their state
systems of finance -- and in the case of Kentucky the entire state education system -- to be inequitable and unconstitutional.(24)
1. Texas In Texas, the Court relied on a traditional finance equity rationale (Edgewood
v. Kirby, 777 S.W.2d 391 (1989)), embracing the Coons team's fiscal neutrality
theory in the very state in which the U.S. Supreme Court had rejected it. The
plaintiffs' evidence focused on the glaring disparities in property wealth between the
wealthiest and poorest communities in the state -- disparities which reflected an
astounding 700 to 1 ratio -- and the resulting disparities in per pupil expenditures --
ranging from $2,112 to $19,333 (Edgewood, 1989:392). The Texas Supreme Court agreed that the wealth-based disparities in funding
for public schools were illegal and had to be corrected by the state legislature.
Hence, the poor Texas school districts were able to achieve through state law what
they had earlier failed to achieve in Rodriguez. Unlike the California experience,
however, the new Texas decision was not based on the equal protection
requirements of the state constitution. Instead, the Court relied on the state constitution's education clause, which
required that the state make "suitable" provision for an "efficient" system of free
public schools allowing for a "general diffusion of knowledge." The bottom line
conclusion was much the same, however. The Texas Supreme Court concluded that
the Texas school funding system "provide[d] not for a diffusion of knowledge that is
general, but for one that is limited and unbalanced" (Edgewood, 1989: 396).
According to the Court, the disparities created by the school finance system were
antithetical to the constitution's commands of efficiency and equity. The Court deferred to the legislature to devise a constitutionally acceptable
system. Solutions acceptable to the Court were not easy to come by, however. Just
as the New Jersey case returned to court several times during the seventies, the
Texas case appeared before the state Supreme Court four times in the nineties, with
the Court repeatedly having to judge the constitutionality of the legislature's revised
school finance plans. Finally, in 1995, the Court found that the legislature had
devised a constitutionally "efficient" plan, and ended the long-standing litigation
battle (Edgewood, 1995 WL 36074 (1995)). The legislative scheme that the Court finally approved was quite innovative in
its approach to achieving fiscal equity. In essence, Texas modified its existing two-tier school finance structure. Tier 1 (like conventional "foundation plans") provides
a guaranteed base level of spending per pupil for each district in the state that taxes
itself at a state determined minimum. Tier 2 is a guaranteed yield system (like
district power equalizing), the purpose of which is to provide each district with the
opportunity to supplement the basic program at a level of its own choosing. To
accomplish that objective, for every cent of additional tax effort beyond that amount
required to qualify for Tier 1 funding, the state guaranteed a yield of $20.55 per
weighted student. The controversial part of the new plan involves a form of state recapture of
part of the revenue generated by wealthy districts. The plan requires the
Commissioner of Education each year to review the tax base per pupil of every
school district in the state, and any district with more than $280,000 per pupil may
elect one of five options to bring its taxable property under the cap (Edgewood,
1995:4). The five options include: i) total consolidation with another property poor
district; ii) detachment of territory for taxable valuation purposes; iii) purchase of
average daily attendance credits from a property poor district; iv) contracting for
the education of nonresident students; v) tax base consolidation with another
property poor district. Options i) and ii) can be exercised by agreement of two
school districts, while options iii) iv) and v) require voter approval. The new plan
was to be phased in gradually, and allowed districts flexibility so as not to require
that their expenditures drop below certain levels. As was the case in the wake of the earlier West Virginia and New Jersey
school finance decisions, the Texas legislation also included many non-finance
reforms. The state set various education goals and established a series of
assessments to measure districts' progress in meeting those goals. While not
mandated by the Court's rulings, these more programmatic reforms to the education
system may be seen to reflect the aspiration of the Coons team noted earlier. That is,
when state school finance politics is freed from its conventional rich district/poor
district battles, the legislature is more likely to focus on more systemic educational
reforms. Where this happens, the legislature may wind up voluntarily embracing
something of the same approach that litigants now hope to force legislatures to
adopt through "adequacy" cases. 2. Kentucky This is shown by the recent spate of "adequacy" cases, some of which
claimants have already won. Perhaps most important is the Kentucky decision. As
noted earlier, and as foreshadowed in the Washington and West Virginia cases, in
"adequacy" cases the talk about "equity" is given a very different spin -- that all
children should have equitable access to adequate educational opportunities. In 1989, the Kentucky Supreme Court found that the entire Kentucky system
of education violated the mandates of the state constitution's education clause, and
ordered the state to overhaul the entire system of education to bring it into
compliance (Rose v. Council for Better Educ., 790 S.W.2d 186 (1989)). The Court
found that the education clause's "efficiency" language required that the state afford
all students with equal access to adequate educational opportunities (Heise, 1995). While the Court stopped short of ordering specific reforms, deferring instead
to the legislative process (at least in the first instance), it did provide the legislature
with broad guidelines about what would constitute an adequate education. Those
guidelines defined an adequate education as one that provides students with the
opportunity to develop at least the following seven capabilities: sufficient oral and written communication skills to enable students
to function in a complex and rapidly changing civilization; sufficient knowledge of economic, social, and political
systems to enable the student to make informed choices; sufficient understanding of governmental processes to enable
the student to understand the issues that affect his or her
community, state, and nation; sufficient self-knowledge and knowledge of his or her mental
and physical wellness; sufficient grounding in the arts to enable each student to
appreciate his or her cultural and historical heritage; sufficient training or preparation for advanced training in
either academic or vocational fields so as to enable each
child to choose and pursue life work intelligently; and sufficient levels of academic or vocational skills to enable
public school students to compete favorably with their
counterparts in surrounding states, in academics, or in the
job market. Notice now this approach deals with the problems earlier-identified with what
we called the legal aid lawyers' needs-based theory. As to the question of "needed
for what educational result?," we see the court itself supplying the answer. This list
of seven items is nowhere contained in the Kentucky constitution. It is a list that the
Court largely made up. But it is hardly an objectionable list. Asked to create such a
list, most people would probably wind up with something not terribly different,
although perhaps at differing levels of generality or specificity. Indeed, if need be,
one could merely look to prominent national or international reports about what sort
of education children "need" in our "post-industrial" contemporary society to find
these same sorts of pronouncements. The hard part, of course, comes next. Is it that all children (or nearly all, and
if that, what is "nearly") actually have to reach those educational objectives? That
appears not to be the case, and those who view the "adequacy" theory as insisting
upon certain outcomes seem to have misinterpreted the idea. Rather, the courts and
"adequacy" theorists seem to have in mind only that the system be structured and
delivered so as to provide all children with a fair opportunity to achieve those
outcomes (Clune, 1993; Underwood, 1995). Even so, how is that restructuring to be done? So far at least, that is tossed
back to experts and the legislature. In other words, deciding how much should be
spent and how to spend it are primarily jobs, not for the Court itself, but for the
policy makers and the educators. What the Court in a case like the Kentucky one
seems to be saying is that it is confident that the challenged scheme fails to provide
all pupils with a fair opportunity to succeed. If nothing else, the system is
manifestly not designed with that in mind. Instead, it is a hodge-podge of state
mandates packaged together with a funding mechanism that encourages local
autonomy. There remains something uncertain about this approach. What will constitute
compliance? One answer is that once a system is found "inadequate," then until all
(or nearly all) children in the state demonstrate high achievement, the system will
remain under the Court's supervision. We suspect, however, that there will be a
different answer to this question. We anticipate that the system will be deemed in
compliance when the legislature, in good faith and with steadfast purpose, has
enacted a scheme genuinely designed to provide pupils with a fair opportunity to
succeed. Yet, even then, it so far remains rather elusive as to precisely what sort of
scheme will pass this test. Must it have certain minimum school finance and
spending fairness features, and if so, which ones? Must it have certain governance,
accountability and curricular features, and if so which? Or will this turn out to be
more of a procedural requirement? To return to an earlier theme of ours, perhaps
the Court will be looking for evidence that the political process abandoned the
conventional fight between rich and poor school districts and instead focused its
attention on what would really be educationally best for the children in the state.
Because the "adequacy" approach is so new, where it will wind up is still uncertain. In Kentucky, the legislature responded to the Court's decision by enacting a
sweeping and comprehensive state-wide education reform package -- the Kentucky
Education Reform Act (KERA) (Trimble, 1995). On the school funding side,
KERA established a new foundation program, which substantially increased the
guaranteed minimum per-pupil expenditure statewide.(25)
In addition to the funding
reforms, KERA mandated a new statewide performance-based assessment system
tied to newly developed content-education standards, statewide curriculum
frameworks, an accountability system with rewards and sanctions for schools tied to
the achievement of high academic standards and the new assessments, as well as
school-based decision-making statewide. While some debate whether and how
much that reform has improved (or is likely to improve) student achievement, few
question the sweeping nature of the reforms. Moreover, on the money side, a state
that prior to 1990 was one of the lowest spending on public education in the country
is now near the middle. Whether the Kentucky Supreme Court will be asked to pass
on these reforms and, if so, what it might say, remains uncertain. E. The Nineties: New Approaches and Mixed Results 1. Overview The impact of the Kentucky decision and the legislature's response has been
felt in many state courts across the country. Since 1989, courts in Alabama and
Massachusetts have directly followed the Kentucky precedent. They have declared
their education systems to be constitutionally inadequate under state law and have
specifically relied on the Kentucky Supreme Court's definition of an adequate
education when providing guidance to the state legislatures as they craft remedies
(Alabama Coalition for Equity v. Hunt, reprinted in Appendix to Opinion of the
Justices, 624 So.2d 107 (1993); McDuffy v. Secretary of Educ., 615 N.E.2d 516
(1993)). Five other state courts(26)
have also found that their state constitutions require
the systems of education to afford students adequate opportunities to achieve broad
educational outcomes, but those courts have relied on more general statements of
what is constitutionally required. Not every state's high court, however, has been receptive to adequacy
arguments. In Illinois, where the state constitution's education clause explicitly
requires the state to "provide for an efficient system of high quality public
educational institutions and services," the Illinois Supreme Court rejected attempts
by plaintiffs to evaluate whether the quality of education offered in many plaintiff
districts met the constitutional standard. According to the Court, "questions relating
to the quality of education are solely for the legislative branch to answer"
(Committee for Educational Rights v. Edgar, 672 N.E.2d 1178 (Ill. 1996). The
high courts in Rhode Island and Florida relied on a similar rationale in rejecting
adequacy-based claims (Coalition for Adequacy v. Chiles, 680 So.2d 400 (Fla.
1996) ("appellants have failed to demonstrate . . . an appropriate standard for
determining 'adequacy' that would not present a substantial risk of judicial intrusion
into the powers and responsibilities assigned to the legislature"); City of Pawtucket
v. Sundlun, 662 A.2d 40 (R.I. 1995) ("what constitutes an 'equal, adequate, and
meaningful' [education] is 'not likely to be divined for all time even by the scholars
who now so earnestly debate the issues'"). As in the 1980s, several court decisions in the 1990s have rejected traditional
finance equity challenges, while at the same time leaving the door open to future
arguments that the state system of education must meet a standard of adequacy. See
e.g., Sch. Admin. Dist. #1 v. Commissioner of Educ., St. of Maine, 659 A.2d 854
(Maine 1995) (plaintiffs claims focused on equity and they did not claim that they
were receiving an inadequate education); Scott v. State of Virginia, 443 S.E.2d 138
(Va. 1994) (state education clause required that state system allow each school
district to provide an educational program that meets standards of quality as
determined by the legislature, and no district before the court claimed that they
could not meet such standards); Skeen v. State of Minnesota, 505 N.W.2d 299
(Minn. 1993) (the education clause required the state to provide enough funds to
ensure that each student receives an adequate education, but the plaintiff school
districts before the court conceded that they were providing such an education to
their students with existing resources). These states are fertile ground for future
court cases alleging that the state system of education is not providing students with
a constitutionally adequate education. In fact, such a case was filed in 1996 in
Minnesota. 2. Wyoming The migration by state courts away from requiring only fiscal equity to
insisting on more is nicely demonstrated by developments in Wyoming. In 1980,
the Wyoming Supreme Court had found that the state education funding system
violated the state constitution's equity requirement, noting that "until the equality of
financing is achieved, there is no practicable method of achieving the equality of
quality" (Washakie v. Herschler, 606 P.2d 310 (Wyo. 1980). In its 1995 decision
(Campbell v. State, 907 P.2d 1238 (Wyo. 1995), the Court ruled that the
Legislature's response to the 1980 decision was deficient and ordered the following: The legislature must first design the best educational system by
identifying the 'proper' educational package each Wyoming student is
entitled to have. . . . The cost of that educational package must then be
determined and the legislature must then take the necessary action to
fund that package. Because education is one of the state's most
important functions, lack of financial resources will not be an
acceptable reason for failure to provide the best education system. All
other financial considerations must yield until education is funded. In response to this latest decision, the Wyoming legislature promptly formed several
task forces charged with the duty to respond to the Court's mandate. Recall that in Kentucky (as well as Massachusetts, for example) the Court
provided the legislature with very broad guidelines as to what constituted the
components of an adequate education. It then charged the legislature with the
obligation to design a school finance and broader educational system that would
somehow satisfy those guidelines. The Wyoming Court, by contrast, did not articulate those broad guidelines.
Rather than itself specifying what an "adequate" education is, it told the legislature
to determine what a "proper educational package" for all Wyoming students is, to
decide how much it would cost to provide that package to all students, and then to
fund the package. Because of the amorphous quality of the Kentucky guidelines, it
is unclear that this difference in the opinions amounts to much. There is no reason
to think that the Wyoming legislature would identify broad goals for its pupils that
would differ significantly from those identified by the Kentucky Supreme Court did
for its state's pupils. The Wyoming Court did emphasize that, once having decided what sort of
education system is proper, the legislature would have to find a way to pay for it. In
other words, the decision seemingly required that the legislature place education
funding above all other social and governmental services in its budgetary process.
Of course, in Kentucky too the Court presumably would be dissatisfied with a
legislative response that specified what was needed to meet the Court's broad
guidelines but then candidly conceded that less money was being appropriated was
necessary to implement the new system. Moreover, it is politically naive to expect
the Wyoming legislators to be blind to what things cost and what they think the state
can afford as they go about deciding what a "proper educational package" for all
Wyoming students should be. Nonetheless, the thrust of the Wyoming Court's
decision is at least to try in a self-conscious way to change the political dynamics of
its legislature's approach to school finance and education more generally. Events since the Court's decision, however, illustrate the intensely political
nature of school funding controversies. The legislature worked diligently over the
course of a year and a half to meet the Court's requirements, and in June of 1997
passed a revised school funding plan. The Governor soon vetoed that bill, however,
prompting both the original plaintiffs and several state legislators to return to Court
to compel compliance. In the spring of 1998, however, the legislative and executive branches came
together and worked out a reform that they hope will comply with the Court's
orders. The new school finance law raises school district funding from the state by
$76.5 million, increasing the upcoming year's total education budget to $632.3
million. School funding is now based on a professional model of what sums ought
to suffice to provide a high quality public education for all Wyoming schoolchildren
-- taking into account differences among districts in both educational costs and pupil
needs. Among other things, the new law also establishes student assessment
standards. 3. Vermont While adequacy claims are now coming to dominate the field of school
finance litigation, some cases continue to be fought on more traditional equity
grounds. For example, a group of students and parents in property poor school
districts in Vermont filed suit challenging the constitutionality of the state school
funding system, which allowed 79% of a school district's funds to be raised locally.
The result of that heavy reliance on local property taxes as a source of funding for
the schools was that some property wealthy districts spent twice as much per pupil
as other less affluent districts. In its 1997 decision, the Vermont Supreme Court
found that such disparities in resource availability and the consequent disparities in
educational opportunities available throughout the state, violated the state
constitution's equal protection clause (Brigham, No. 96--502 (Vt. 1997).
Reminiscent of the Coons team's theory, the Vermont decision suggests that future
school finance systems in Vermont will not be able to have the wealth of a district's
property base determine the educational resources and opportunities available to
students. In response to the decision, the Vermont legislature passed a new school
finance, education reform, and tax reform plan during the 1997 session, which, in
part: · creates a per-student block grant ($5,000 for 1997) which is given to
each district based on its equalized pupil count; the block grant will be
adjusted by annual price index; pupil count is weighted to reflect
poverty, primary/secondary students and ESL; · appropriates additional $9.6 million for capital construction; · allows discretionary spending by local districts above the block grant
and provides for equalization of ability to raise funds for this spending; · replaces local property taxes for schools with a statewide education
property tax, setting one rate for homestead and nonresidential
property; · finances the changes through the a statewide education property tax
and various tax increases; and · includes several education reforms including student standards, new
assessments, school improvement grants, early childhood programs and
others. 4. Ohio Recent court decisions in Ohio blur the lines between equity and adequacy.
Remember that a Ohio Supreme Court decision in the 1970's had squarely rejected
a traditional equity challenge to the state's school finance system. In 1991,
however, a coalition of plaintiffs filed suit claiming that the education being
provided in their schools was constitutionally inadequate. Following a lengthy trial,
the court ruled for the plaintiffs, relying heavily on the Kentucky Court's prior
articulation of adequacy standards in elaborating the Ohio Constitution's
requirements. That trial court decision, however, was quickly appealed by the state
attorney general's office. In 1997, the Ohio Supreme Court upheld the trial court's decision, but the
high court's focus was much more on educational inputs, traditionally associated
with the equity theory, than on outputs, which tend to be more of a focus in
adequacy decisions. DeRolph v. State, ___ Ohio St.3d ___(1997). The Court
criticized the heavy reliance on local property taxes to fund schools, reminded the
legislature of their responsibility to support a "statewide" education system, called
for a "systemic overhaul" of the funding system and gave the legislature a year to
develop a new finance system. Despite the Court's emphasis on input equity,
however, the state legislature's response to the Court was more in keeping with the
trial court's broader ruling. Like the Wyoming legislature, the Ohio legislature attempted to determine
what it would cost to provide all students in the state with and adequate and
equitable education. To determine that amount, however, the legislature looked at
the spending patterns of districts within the state that were in compliance with state
input and outcome standards. Using an average spending level for those districts,
and adjusting it for differing costs around the state and for differing need-levels of
student populations, the legislature has come up with a baseline level of school
spending that each district will be assured. It remains to be seen whether these new
arrangements will be the subject of legal challenge. IV. Summing Up: The Relationship Between Finance Equity and Educational
Adequacy and the Future of School Finance Litigation As we have seen, most of the early legal theories attacking school funding
arrangements emphasized equality in a way that implied either a dramatic raising up
of the wealth and/or spending level of poor low-spending districts or a leveling
down of the advantaged districts (or a combination of both). The Coons team, for
example, had counted on the strong commitment to high spending of at least many
of the high-wealth/high-spending districts as a force that would promote greater
educational spending across the board. Even though this did not happen in
California, it does appear to be a major consequence of successful school finance
"equity" cases in other states (Evans, Murray and Schwab, 1997). Nowadays, however, the emphasis of many school finance reformers has
shifted. For one thing, restraining or bringing down spending at the top is very
unpopular (and is seen in some quarters as promoting the withdrawal of some
families to private schools, as well as causing equity-evading tactics in wealthy
communities such as the creation of community foundations which supplement the
public school funding that government provides). Yet, to raise spending
everywhere up to the top (even if a few outlier districts are excluded) seems too
expensive in many states. At the same time, many of those who are complaining
about the public schools seem to care less that their children (or those they
represent) are relatively worse off and more that they are badly off in an absolute
sense. These factors appear to have combined to cause legal activists to change
tactics, and, as we have seen, they have been able to get some courts to go along
with them. Indeed, even as courts in many states have by now rejected the
seemingly more straightforward traditional "equity" claims, other seemingly more
ambitious cases demanding "adequacy" are winning. In the end, however, these two different legal approaches -- equity and
adequacy -- are not as far apart as some commentators have suggested (Clune,
1993: Underwood, 1995). For one thing, although talk about "adequacy" candidly
concerns itself with educational outcomes, its advocates, as we noted earlier, are not
insisting that students have a legally enforceable "right" to any particular outcome.
Rather, they appear to argue that each school district must have adequate resources,
given its circumstances and the nature of its pupils, to be able to offer an educational
program that reasonably promises to teach at least most of them to reasonably high
standards. This principle is more ambitious as a legal standard than fiscal neutrality,
for example, if for no other reason than it focuses on more than dollar inputs. At
the same time, it contains many "soft" words that courts can't be expected to define
with clarity. Nevertheless, it carries a meaning that some courts do seem
comfortable with in two critical respects. First, these courts believe that they can
readily tell that, at least in some states, the adequacy principle is clearly not being
met; and second, they feel that they will be able to determine whether the legislature
has genuinely responded to the adequacy standard with systemic revisions
calculated to meet it. Still, even as the courts embracing the adequacy idea envision legislative
responses that will include more than mere financial changes, in the end these courts
seem best able to deal with the money side. As noted above, although the New
Jersey Supreme Court, for example, has moved down the "adequacy" path, its most
recent ruling is that if the wealthy communities seem to need so many dollars per
pupil to educate their children, then the poverty-ridden central cities surely need that
much and more. Adequacy, in short, is anchored in some notion of spending equity. Indeed, New Jersey is of special interest because, for some time, it has been
among the highest spending states in the country, perhaps the highest. Besides,
even low spending New Jersey districts currently have available to them more
money per pupil than the national average. Hence, one might well have assumed
that New Jersey's spending level everywhere was at least "adequate" -- unless
school funding arrangements are to be deemed woefully inadequate throughout
virtually the entire United States (which, some would argue, is true). But since New
Jersey continues to have substantial spending inequalities, the Court was able to
order reform on behalf of the neediest districts by casting adequacy in relative
equity terms. Looking now to the group of successful adequacy cases, while the language
employed in them generally emphasizes educational reform beyond finance, it would
be a mistake to imagine that system-wide reforms are taking place only in these
states. After all, since the early 1980s the country as a whole has given much
greater attention to educational productivity. So, too, throughout the country today,
legislatures are being forced to engage at least two new powerful reform movements
-- (1) educational standards and (2) school choice -- that also make claims about
how to connect the spending of money with better educational outcomes. Finally, and perhaps most importantly, in the end both the equity and
adequacy theories depend upon the courts primarily to perform the role of striking
down the traditional approaches to school finance. That is, both leave it to the
legislature to get serious about providing equal educational opportunity to all of the
children of the state. So, under both theories, just how the legislature does that is
ultimately up to the legislature and not the court, even if the court can continue to
provide the negative prod of insisting that one response or another is insufficient.
Possibly courts in states like Kentucky and Wyoming will at some point involve
themselves intimately in the details of their state's educational reforms. But whether
that will happen would be speculation for now. (In Kentucky, which many cite as
the strongest "adequacy" case, the Supreme Court, as we noted above, so far has
only sent the matter back to the legislature to handle without maintaining judicial
supervision over the response.) Therefore, by their demands that their state provide
enhanced financial backing for school districts that are unfairly disadvantaged, it is
safer for the present to see those judges adopting adequacy theories as still acting in
the school equity tradition. It is the seeming willingness of courts in these newer cases to be bolder in
describing what constitutes an unfair disadvantage that give adequacy and equity
different legal meanings. A different way to put the point is this. What we are
seeing now, under the adequacy banner, is a successful re-emergence of the early,
then unsuccessful, educational "needs" theories of the legal aid lawyers. This, in
turn, suggests that perhaps the relative caution exhibited by the Coons team and
other early legal theorists may have been unwarranted. Or perhaps courts needed
to gain experience from and comfort with the narrower equity theories before
embracing a broader theory. Whether this recent greater boldness by lawyers and judges will have
significantly different consequences for children is another matter, however. That
will require careful observation of the way school reform and school finance reform
unfold in the years ahead. In any event, what does seem clear is that litigation aimed at achieving school
finance reform has not yet run its course. We should look for the filing of more
"adequacy" cases. We should anticipate that some states with "adequacy"
decisions against them will be hauled back into court on the ground that they have
not done enough. And, we should expect that some lawyers will continue to bring
some traditional "equity" cases, as exemplified by the recent Vermont case. Moreover, once "adequacy" talk becomes more common, we might expect to
see more intra district school finance cases. In the past, this has not been viewed as
a fruitful litigation target. This is because there was not the same obvious structural
objection to the way districts distribute their money to schools. This is in contrast to
the ready objection that has been mounted against the local property tax-based
system for getting money to districts. Moreover, with state and federal categorical
aid counted, the schools with the most children from low income families and the
highest proportion of educationally-least-successful children often spend more
dollars per pupil than the district average. But as judicial concerns about need and
outcomes come more to the fore, there are sure to be those whose "adequacy"
objections will be couched in terms of how poor children in some schools within
urban districts fare as compared with other children in the district. Indeed, litigation
of this sort has been ongoing now in Los Angeles for some time. In conclusion, although there may be less school finance inequity today than
there was 30 years ago, according to a recent GAO report a substantial degree
remains. To the extent that states with successful school finance litigation have less
inequality, and this appears broadly to be the case, this will give reformers
continued reason to take their battles to the courtroom.(27)
And, this incentive is
magnified as courts show a broad willingness to respond to the widespread view
that our the whole public schooling enterprise is inadequate, and especially in its
failure to educate successfully too many of our urban poor children. Whether school
finance reform alone can turn that failure around remains quite unclear. For
example, no one has been able to show that the narrowed spending differentials
achieved by successful school finance equity cases in the 1970s and 1980s directly
led to a narrowing of educational achievement differentials. Yet advocates for
judicial intervention continue to believe, not only that school finance reform is
required by the norm of basic fairness, but also that reform is a necessary, if not
sufficient, condition for improving the educational attainment of those now least
well served by our public schools. Sources Alexander, K 1991 The common school ideal and the limits of legislative authority:
The Kentucky case, Harv. J. Legis. 28:341 Berne, R. and Steifel, L 1998 Concepts of school finance equity: 1970 to present (this volume) Clune, W. 1993 A shift from equity to adequacy, The World and I (September) Coleman, J.S., et. Al. 1966 Equality of educational opportunity, U.S. Government Printiing
Office Coons, Clune and Sugarman 1969 Educational opportunity: A workable constitutional test for state
financial structures, Cal. L. Rev. 57: 395 Coons, Clune and Sugarman 1970 Private wealth and public education, Harvard University Press Enrich, P. 1995 Leaving equality behind: New directions in school finance reform,
Vanderbilt L. Rev. 48:101 Evans, W., Murray, S., Schwab, R. 1997 Schoolhouses, courthouses, and statehouses after Serrano, J. Pol.
Anal. & Man. 16:10-31 Franklin, D. 1987 The constitutionality of the K-12 funding system in Illinois, Illinois
State University, Center for the Study of School Finance (May) GAO 1997 School finance: State efforts to reduce funding gaps between poor
and wealthy districts (February) Heise, M. 1995 State constitutions, school finance litigation, and the "third wave":
From equity to adequacy, Temple L. Rev. 68:1151 Horowitz, H. Unseparate but unequal: The emerging Fourteenth Amendment issue in public
school education, UCLA L. Rev. 13: 1147 Horowitz, H. and Neitring, 1968 Equal protection aspects of inequalities in public education and
public assistance programs from place to place within a state,
UCLA L. Rev. 15:787 Hubsch, Allen 1992 The emerging right to education under state constitutional law,
Temple L. Rev. 65:1325 McUsic, M 1991 The use of education clauses in school finance reform litigation, Harv. J. Legis. 28:307 Thro, W.E. 1993 The role of language of the state education clause in school finance litigation, Educ. Law. Rep. 79:19 Trimble, C. and Forsaith, A. 1995 Achieving equity and excellence in Kentucky education, U. Mich.
J.L. Ref., 28:599 Underwood, J. 1995 School finance adequacy as vertical equity, U. Mich. J.L. Ref.
28:493 Verstegen, D. 1995 School finance reform litigation: Emerging theories of adequacy
and equity. Unpublished paper presented at the American Public Policy
and Management Association Annual Conference, November 3, 1995
(Washington D.C.) Wise, A 1968 Rich schools, poor schools, University of Chicago Press Williams, Robert F. 1985 Equality guarantees in state constitutions, Tex. L. Rev. 63: 1195 5. 5 See McInnis v. Shapiro, 293 F. Supp. 327 (N.D. Il. 1968), aff'd sub nom.,
McInnis v. Ogilvie, 349 U.S. 322 (1969); Burrus v. Wilkerson, 310 F. Supp. 572
(W.D. Va. 1969), aff'd per curiam, 397 U.S. 44 (1970).
26. 26 Leandro v. State of North Carolina, No. 179PA96 (July, 24, 1997) (relying on Kentucky definition of adequate education); Claremont Sch. Dist. v Gregg, 635 A.2d 1375 (N.H. 1993) (state constitution required the state to create and maintain an adequate education system that "includes broad educational opportunities needed in today's society to prepare citizens for their role as participants and as potential competitors in today's marketplace of ideas"); Tennessee Small School Systems v. McWherter, 851 S.W.2d 139 (Tenn. 1993) ("The General Assembly shall maintain and support a system of free public schools that provides at least the opportunity to acquire general knowledge, develop the powers of reasoning and judgment, and generally prepare students intellectually for a mature life"); Roosevelt Elem. Sch. Dist. v. Bishop, 877 P.2d 806 (Ariz. 1994); Campaign for Fiscal Equity v. State of New York, 86 N.Y.2d 307 (N.Y. 1995) (state is constitutionally obligated to create and maintain an education system that provides children with: "the basic literacy, calculation, and verbal skills necessary to enable [them] to eventually function productively as civic participants capable of voting and serving on a jury . . . [and] minimally adequate physical facilities and classrooms . . . to permit children to learn").
27. 27 See GAO, School Finance: State Efforts to Reduce Funding Gaps Between Poor and Wealthy Districts, February 1997. The GAO report presents data as of the 1991-92 school year and hence captures no reforms undertaken since then (although it does note which states have made significant changes since 1992). By our count, the following 10 states may perhaps be said to have had successful school finance litigation an appreciable time in advance of the GAO data collection date, with the date noted representing the date of the first successful high court decision: Arkansas (1983); California (1971); Connecticut (1977); Kentucky (1989); Montana (1989); New Jersey (1973); Texas (1989); Washington (1978); West Virginia (1979): and Wyoming (1985). Of course, for some of these states reform efforts made in response to court decisions may not yet have been significantly implemented by 1991-92; in others, time have eroded the earlier impact of reform; and in several, the state was taken back to court after the GAO 1991-92 cutoff date. Nonetheless, taken as a whole, these ten states appear generally to rate more favorably on GAO's various measures of state effort to promote equity. For example, Figure 1 (p. 8) illustrates the extent to which wealthy districts (as the GAO measures them) spend more than poor districts. Six of the ten states noted above are in the bottom third (with the least amount of inequality); and only one is in the top third (most inequality). Figure 5 (p. 17) ranks the states in terms of what they have done to equalize spending. Six of the ten states noted above are in the top third (most equalization); only three are in the bottom third (least equalization). Table 2 (p. 20) displays which states need to do the most to maximize their equalization efforts. Six of the ten states noted above are not on the list, and none of the ten is in the worst category (those needing both to shift considerable funds from rich to poor and to increase funding to the poor significantly). Because of the age of the GAO data and the particular ways in which it choose to measure equity, one should be very careful not to make too much of these findings. Nevertheless, we suggest, these results are readily taken by reformers to indicate that litigation can make a difference. And our primary point here, after all, is that so long as reformers believe that, then we should anticipate the school finance litigation effort to continue.