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Published in Print: October 26, 2005, as Movement Afoot to Reframe Finance-Adequacy Suits

Movement Afoot to Reframe Finance-Adequacy Suits

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Vouchers and charter schools—not money—are the solutions judges should turn to when they decide that a state’s school system is inadequate, said participants in a recent conference that brought almost 30 scholars and litigators together here.

Convinced that lawsuits that have won increased spending in schools are not leading to better student achievement, the participants—many of them leading figures in conservative and free-market policy circles—started mapping out a research agenda and a litigation strategy to counter the highly successful movement to have courts declare a state’s school aid system inadequate to meet its constitutional obligation to schools.

“The trickle-down theory of educational adequacy … is that if we shower the schools with more money, it will somehow provide an adequate education for students,” said Clint Bolick, the president and general counsel of the Alliance for School Choice. He spearheaded the Ohio lawsuit, Zelman v. Simmons-Harris, that resulted in the U.S. Supreme Court’s 2002 decision that publicly funded tuition vouchers that families may use at religious schools don’t violate the U.S. Constitution.

Mr. Bolick said his Phoenix-based group now plans to launch alternative lawsuits that would ask judges to give vouchers to students, rather than more money to public schools, in cases that are seeking financial remedies for schools providing an inadequate education. He did not identify which states were candidates for such suits.

Other participants suggested approaches such as developing evidence that cash-based responses to previous lawsuits have been ineffective and proposing remedies that increase financing for charter schools.

Conference attendees said the idea that vouchers and charter schools could be part of the antidote for failing schools could be a dramatic change in the 15-year-old adequacy movement, which has won judgments from the highest courts in Kentucky, New York, and several other states.

“A lot of advocates win these cases, and they expect to see the state treasurer standing there with a bag of money,” Andrew J. Rotherham, a co-director of Education Sector, a Washington education think tank, and a former White House aide to President Clinton, said in an interview here. “They’re going to get Clint Bolick if they’re not careful, and I don’t think that’s what they want.”

New Agenda

Educational adequacy cases have been successful since the Kentucky Supreme Court ruled in their favor in 1989 in Rose v. Council for Better Education, which ordered the Kentucky legislature to overhaul the state’s school system and spend more money on its schools.

Although the adequacy movement has won judgments in Kansas, Montana, and New York in just the past two years, attendees at the Oct. 13-14 conference on the campus of Harvard University pointed to a recent ruling by Massachusetts’ highest court saying the state adequately finances its schools. In that case, the Massachusetts Supreme Judicial Court overturned a lower-court decision saying the state had failed to adequately fund schools in poor communities. ("Massachusetts Meets Education Guarantee, State High Court Says," Feb. 23, 2005.)

“It appears to me that the bloom is off the Rose,” Kenneth W. Starr, the former federal appellate judge and Whitewater special counsel, who is now the dean of the Pepperdine University School of Law, said in an interview.

“It’s time to be reflecting on other options and different ways to think” about school finance cases, said Mr. Starr, another conference participant, who argued on behalf of voucher advocates in Wisconsin and Ohio courts.

And those who attended the conference, which was organized by Paul E. Peterson, a professor of government at Harvard University’s John F. Kennedy School of Government, offered a host of strategies. For example:

• Challenge plaintiffs’ estimates of how much money schools need.

“The plaintiffs … have figured out that all you need is a large number and throw it out there to the politics of the court,” said Eric A. Hanushek, a senior fellow at the Hoover Institution at Stanford University. He suggested that the so-called cost studies sponsored by plaintiffs are inexact estimates that exaggerate schools’ needs.

• Question whether past lawsuits have had the intended impact.

In four states where supreme courts ruled for plaintiffs in adequacy cases, student achievement didn’t improve dramatically and school governance didn’t change, according to Frederick M. Hess, the director of education policy studies at the American Enterprise Institute in Washington.

“There’s a possibility [the lawsuits] make real change more difficult, … as long as people know the state is going to throw money their way,” Mr. Hess said.

• Offer alternatives to increased spending in school districts, such as vouchers and charter schools.

“School districts do not have the guarantee of an education, children do,” Mr. Bolick said. “School districts are not the victims [of inadequate funding]. They are the violators.”

The impact of the ideas proposed at the Harvard conference remains to be seen. Successful adequacy cases are built on evidence that schools aren’t offering all the services and support that children need to succeed academically, according to those who argue the cases.

Wait and See

In various cases, such evidence has included a lack of science laboratories in New York City and the use of outhouses by children in Alabama while in school, said Michael A. Rebell, the lawyer who led the effort to declare New York state’s school funding inadequate.

Judges understand the problems and can identify actions to fix them, said Mr. Rebell, who spoke at the conference. But they have sometimes been wary of demanding specific policies, especially ones that are as controversial as vouchers, he said.

Lawyers arguing for increased school aid also have been able to rebut claims by expert witnesses such as Mr. Hanushek that additional aid won’t help schools, said Mr. Rebell, who criticized the conference organizers for not including research from those who support the adequacy suits. He and other adequacy supporters participated in panels, but only to react to the research that mostly criticized the adequacy cases.

Voucher proposals also are vulnerable to rebuttal in court, said a lawyer for North Carolina plaintiffs, who won a unanimous decision from the state’s supreme court last year.

“There’s no way anyone is going to build enough charter schools or design a fair and realistic voucher program,” said Ashley Osment, a senior lawyer at the University of North Carolina at Chapel Hill Center for Civil Rights, who attended the conference as an observer. “In the meantime,” she said, “almost all poor and minority children are going to a public school.”

Vol. 25, Issue 09, Pages 25,34

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