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Published in Print: August 11, 2004, as Why Adequacy Lawsuits Matter

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Why Adequacy Lawsuits Matter

Adequacy lawsuits ensure education opportunity for all our kids.

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Adequacy lawsuits ensure education opportunity for all our kids.

Celebrations of the 50th anniversary of the U.S. Supreme Court’s landmark decision in Brown v. Board of Education this year have been tempered by the realization that Brown’s vision of equal educational opportunity is yet to be attained: Over the past decade, there has actually been an increase in racial segregation in public schools throughout the United States, and nearly half the nation’s African-American students and 40 percent of its Latino students now attend high schools in which graduation is not the norm. At the same time, however, equity advocates have been heartened by the accelerating success in recent years of education adequacy lawsuits, which seek to ensure that all students receive the programs and resources they need to obtain a decent education.

The record of plaintiff success in these cases is remarkable. As the federal courts have virtually ceased to enforce desegregation orders, state courts throughout the country are increasingly mandating the overhaul of antiquated school funding schemes that have for years perpetuated inadequate educational opportunities for poor and minority students. Since 1989, there have been 29 such lawsuits, and plaintiffs have won 24 of them, with five of those victories occurring in the last two years alone.

Opponents of this new wave of civil rights litigation, having largely lost the legal battle, are now seeking to limit the effectiveness of the remedies ordered by the courts in these cases. They are trying to raise doubts about whether providing adequate funding to educate poor kids will make any difference, asserting that efforts to do so will somehow lower education standards and weaken America’s democratic institutions. This is the essence of the argument that Alfred A. Lindseth, the lead attorney for the losing defendants in the recent New York litigation, set forth in the June 9, 2004, Education Week Commentary he provocatively titled "Adequacy Lawsuits: The Wrong Answer for Our Kids."

Mr. Lindseth does not dispute that the resources money can buy, like high-quality teaching, smaller classes, prekindergarten, and extended-day programs, can substantially raise student achievement. Instead, he asserts that once a court has struck down a school finance system, the discussion focuses "almost entirely on money," and that other reform measures, "such as stronger accountability, increased efficiency, and school choice, get short shrift." He cites no evidence for this broad claim, and he appears to be utterly unaware of the substance of the adequacy court rulings, and the sweeping educational improvements and important new approaches to accountability and efficiency that the adequacy litigations have, in fact, engendered.

For example, the first of the current wave of education adequacy lawsuits, the 1989 decision of the Kentucky Supreme Court, specifically held that a constitutionally adequate state education system must be "properly managed." In direct response to the court mandate, the legislature promptly enacted the Kentucky Education Reform Act, or KERA, a sweeping set of reforms that included a range of significant accountability initiatives, including the establishment of a statewide office of education accountability, and that is generally acknowledged to have raised student achievement significantly.

A series of rulings by the New Jersey Supreme Court over the past decade has led to implementation of rigorous curriculum standards and assessments, and the implementation of an extensive new preschool program, a major school construction initiative, and other significant school reforms. More recently, the adequacy litigation in Maryland spurred a new, comprehensive accountability scheme that requires every local district to adopt a thoroughgoing master plan to ensure that both new and existing revenues are effectively used to improve student achievement.


What critics fail to grasp is that such lawsuits have become the driving force for achieving the aims of the standards-based-reform movement.

Much of the discussion in the early education adequacy cases focused on the shocking shortfall between notions of a decent education and the everyday realities of children who were being taught mathematics by bus drivers, or whose textbooks told them that we might one day go to the moon. In the more recent cases, there has been an increasing emphasis on the critical question of how to link funding to educational achievement. For example, virtually all of the oral argument before New York state’s highest court in Campaign for Fiscal Equity v. State of New York last year focused on the remedy issue. The judges asked pointed questions about what other courts throughout the country had done in similar cases and about which remedial approaches had worked best.

The court’s decision distilled the essence of the successful remedial approaches into three basic guidelines:

Ascertain the actual cost of providing an adequate education;·Ascertain the actual cost of providing an adequate education;

Reform the current school funding and education governance systems to ensure that every school actually provides that level of resources; and·Reform the current school funding and education governance systems to ensure that every school actually provides that level of resources; and

·Ensure a system of accountability to measure whether the reforms actually provide the opportunity for an adequate education.

These remedial principles articulated by the courts in New York and other states have not only resulted in careful studies to "cost out" an adequate education for all students in over a dozen states, but have also led to the formulation of "next generation" accountability principles (a term coined by the Education Commission of the States) that focus on methods to enhance instructional capacity and to improve teaching and learning at the school level. These principles are at the core of the 50-page comprehensive accountability proposal that the plaintiffs are presently pressing for adoption as part of the remedy in the New York litigation.

What Mr. Lindseth and others fail to grasp is that the education adequacy lawsuits have become the driving force for achieving the aims of the standards-based-reform movement. Over the past decade, most states have adopted challenging academic standards, and many also require students to pass a series of tests based on the standards in order to obtain a high school diploma. Yet few states have provided sufficient resources to afford all students a meaningful opportunity to meet these standards. Now, the courts are not only mandating adequate levels of funding, but they are also pushing state officials and the policy and research communities to enhance the instructional capabilities of all schools to meet the broad range of student needs.

This stimulating interchange between the courts, legislatures, executive agencies, and the public is fully in keeping with constitutional principles of separation of powers. The courts are not usurping the policymaking role of the other branches of government. Rather, they are performing their rightful function: rectifying the longstanding failure of the legislative and executive branches to uphold the constitutional rights of poor and minority children and providing remedial guidance to ensure that the legislative and executive branches faithfully carry out their constitutional responsibilities. Clearly, the education adequacy cases are the right answer to those who ask whether it still is possible to realize Brown’s vision of equal educational opportunity in the 21st century.

Michael A. Rebell is the executive director and counsel of the Campaign for Fiscal Equity, in New York City.

Vol. 23, Issue 44, Page 40

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