School-Finance Suits Look Beyond Money To Issues of Quality

By Lonnie Harp — June 17, 1992 12 min read

Even as lawsuits challenging the way states fund their schools rack up an unprecedented courtroom winning streak, some lawyers and educators are suggesting that the school-finance movement focus less on the issue of money and more on the quality of education itself.

Turning their attention from dollar signs to graduation lines, advocates for poor school districts are beginning to scrutinize program offerings and achievement measures as they search for the components of a fundamentally fair education system.

This idea calls for a shift from a drive for “equity’'--reducing the spending disparities between schools in wealthy and poor areas--to “adequacy’'--ensuring that the schools can provide each child with an opportunity for success in life.

Put another way, the adequacy movement demands that states provide schools the resources needed to meet the education standards the states themselves have set.

Equity-based challenges continue to predominate among the more than two dozen school-finance lawsuits currently pending in state courts. But suits emphasizing adequacy have been filed in Alabama, Connecticut, Louisiana, and Oklahoma. And an Illinois panel this spring discussed setting an adequacy standard for school funding, which it defined as ensuring that all districts in the state have about $4,000 per student to spend. (See Education Week, April 22, 1992.)

Some see the emergence of the adequacy strategy as a natural spinoff of the vigorous school-finance debate, as well as a connecting point to a variety of national-standards and assessment-reform efforts and larger state issues.

But others warn that it is a risky legal strategy that may endanger the momentum of school-finance litigation or even mark a retreat from the notion that all children deserve an equal schooling.

Constitutional Ambiguity

The distinction between equity and adequacy reflects the largely abstract notions on which school-finance lawsuits are decided in the courts.

The ambiguities begin with language in the state constitutions. Founding documents impose some sort of educational responsibility on the legislatures, clauses variously charge state lawmakers with ensuring “efficient,’' “thorough,’' or “sufficient’’ schooling. Some states’ constitutions contain even more vaguely worded mandates.

In seeking to define those requirements in practice, judges in a number of states have concluded that lawmakers owe children relatively equal access to public funds, as well as an education that will prepare them for citizenship, work, and the pursuit of happiness.

One of the most specific findings, and a pioneer in development of the adequacy concept, was provided by the West Virginia Supreme Court in 1979. In addition to ordering a new distribution formula for state education funds, the court went on to explain that the framers of the state constitution envisioned a school system that produced students proficient in communication and decisionmaking; able to understand and interpret current events, health information, and the arts; and prepared to compete for jobs or to move on to further schooling or training.

The wave of lawsuits that began to pick up steam in the late 1980’s has until recently focused on funding alone, however.

Beginning with supreme-court decisions in Kentucky, Montana, and Texas in 1989, courts have concluded that states neglected their duty to ensure equal funding and ordered sweeping remedies.

School-finance cases based on equity challenges have since won in New Jersey, twice more in Texas, and in lower courts in Kansas, Minnesota, and Tennessee.

But while the equity wins mount, researchers, educators, and lawyers are devoting renewed attention to the ingredients of an adequate education.

Influential in Court

Supporters argue that cases focusing on the adequacy of a state school system are potentially more influential in court and more manageable for legislators.

Several observers noted that state efforts that followed the landmark 1983 report, “A Nation at Risk,’' detailed a host of school reforms, program improvements, and accreditation standards that are financially out of the reach of many districts.When pegged to such state expectations, the analysts suggested, adequacy claims gain a solid foundation.

“You have to be able to translate money into education programs,’' said Helen Hershkoff, the associate legal director for the American Civil Liberties Union, which is backing school-finance lawsuits in Alabama, Connecticut, and Louisiana that emphasize adequacy issues.

“In our lawsuits, we raise equity as well, but it is very important to combine fiscal equity with adequacy,’' Ms. Hershkoff said. “In Alabama, we’re arguing for the state’s own standards. The litigation is very democratic at its base because we’re using regulations and standards the state itself has developed.’'

Perhaps the most important pending adequacy case is in Oklahoma, where lawyers expect to argue the first finance lawsuit based solely on school adequacy and state standards in court late this year.

Lawyers for 40 of the state’s largest districts acknowledged that they were forced to take the unique tack following an earlier decision by the state supreme court that gutted an equity challenge. But they added that their groundbreaking effort, if successful, will encourage similar strategies in other states.

“You can get into quite an argument over how to define adequacy, but there’s quite a bit of language in the legislature’s bills on what kind of school system they want to create,’' said Mark Grossman, a lawyer for the Oklahoma districts. “In terms of the goals the legislature is trying to achieve--they speak in terms of an excellent education--we’re aiming that high. In terms of national norms, we are trying to bring it up to something near the average.’'

Meeting State Standards

The Oklahoma case questions whether the state’s school-finance system allows many of its school districts to meet class-size and curriculum mandates. A suburban Oklahoma City district recently estimated that a seven-year, $13-million upgrade would be required to comply with all the standards included in a 1990 reform law. A state task force has set even higher expectations that include expanding programs ranging from school technology to preschools.

In building the adequacy case, the Oklahoma districts have hired consultants to pour through a variety of state data ranging from course offerings and test scores to teacher pay. In addition to comparisons from district to district, the case also will contrast performance and resources in Oklahoma districts with those in neighboring states and nationwide.

While preparation for the adequacy case may be more intensive than for an equity case, Mr. Grossman said, the results may be more convincing for the court and more informative for state officials.

“It would be easier for the court to rationalize inequities if you can’t show the inadequacies,’' Mr. Grossman said.

“All things being equal, arguing equity is a much less complex task, but that’s not to say adequacy can’t be shown,’' said R. Craig Wood, the chairman of the education-leadership department at the University of Florida and a consultant to the Oklahoma districts. “There is a connection between a lack of money and inadequate districts.’'

Further, in weighing the two approaches, some observers note practical advantages to adequacy cases.

“Of the two, minimum-standards arguments do not invite the swarm of logistical, theoretical, and political difficulties that equity arguments do, and thus show greater promise for successful litigation,’' according to Molly McUsic, formerly of the Arizona Center for Law in the Public Interest.

In a 1991 article for the Harvard Journal on Legislation, Ms. McUsic, now a clerk for U.S. Supreme Court Justice Harry A. Blackmun, noted that adequacy cases are less likely to spark complaints about usurpation of local control and judicial intrusion.

The new focus on performance measures and classroom factors would also carry more weight, Ms. McUsic argued. “They reflect citizen interests more accurately than input measures,’' she wrote.

‘A Terrible Retreat’

But other finance experts warn against rushing to embrace the adequacy strategy, particularly in light of recent successes based on equity.

“You would do well to stifle the issues of adequacy and go for disparities, because that’s the pre-eminent issue,’' said Kern Alexander, a professor at Virginia Polytechnic and State University who has testified as an expert witness in several school-finance cases. “Adequacy is in the eye of the beholder. It’s an issue you want to stay away from unless you have a poor state.’'

Mr. Alexander, who is working with the poor school districts in Alabama, recommended that adequacy remain a secondary issue. He said it was brought up in the Kentucky and Tennessee cases both to bolster the equity case and, by exposing glaring deficiencies, to argue against any legislative solution that would simply reshuffle existing funds.

“It is important that you make the case for leveling up, and that forces you into an adequacy argument that may be destructive because you don’t want to measure what’s minimally adequate,’' he said. “The court must be concerned about equal access to the resources of the state.’'

Some argue more vehemently that the adequacy strategy is unwise.

“Equality is the only proper standard,’' said the author Jonathan Kozol, whose recent book, Savage Inequalities, focused on the human side of school-funding disparities.

“I have grave concerns about cases based on adequacy,’' Mr. Kozol said. “It is an unwise direction unless it is tightly linked to the equality question. To separate them strikes me as a terrible retreat.’'

In asking the state to meet an adequacy standard, Mr. Kozol said, educators would be opting for a minimum state public-school program and a continued gulf in opportunity.

“To a large degree, what is said to be adequate for the poor is determined by the rich,’' Mr. Kozol argued. “It’s decided usually in accord with our opinion of what their usefulness is to us. It’s much like the arguments you hear from business leaders who say the success of education is in providing the workers they need, not the future managers that would compete with their kids.’'

“By accepting adequacy as a standard, you are accepting a caste system,’' he added.

For the Defense

The defenses mounted by states in court against finance challenges also have been a factor in the growing interest in the adequacy issue.

Observers said that, despite the recent school-finance wins, lawyers and educators pressing lawsuits have been vexed by still-unanswered questions about the relationship between money and results in the public schools.

Mr. Alexander and others said their reluctance to elevate the adequacy issue comes partly because it has been an issue on which state defendants have scored some points.

“I would say that 50 percent of the questions the defense will ask will have to do with adequacy,’' he said. “But in the past, plaintiffs would seek to avoid it as much as possible.’'

“Districts are being pulled that way by the defense,’' said G. Alan Hickrod, the director of the Center for the Study of Educational Finance at Illinois State University. “They always make the argument that money isn’t the only thing that matters.’'

Mr. Hickrod argued that defense lawyers can use the adequacy issue to cloud equity claims because it is such a difficult concept to define.

“What is missing is some ‘external’ or ‘absolute’ standard for adequacy or inadequacy,’' he concluded in a report. “There have been attempts to create such an external criterion by panels of experts and by using data at the national level, but nothing has yet as widespread acceptance.’'

“We may be a little ahead of the technology,’' said John Augenblick, a Denver-based school-finance consultant. “This is a natural evolution of the process, but when you talk about performance at this stage in the game, remember that not everyone has agreed on what kids are supposed to be able to accomplish.’'

Link to Reforms

Although research may be lagging, observers suggest that the national education goals and ongoing overhauls of standards and assessment may lend steam to the adequacy focus as a way of linking school finance to the national reform picture.

“Adequacy is always an idea whose time has never come, but now we’re staring it right in the face,’' said Allen Odden, the director of the Consortium for Policy Research in Education’s finance center at the University of Southern California. “You need, at some point, to know what are the overall school programs that we need, and what is the price tag.’'

Research on the cost-effectiveness of education programs, how schools spend their budgets, and new ways to test students should help nurture adequacy issues that were previously considered unwieldy, observers said.

“In the past, people shied away from this because they were reluctant to get into the equality of outcomes based on test scores,’' Mr. Odden said. “Now, we’re willing to begin tackling that head on.’'

“We’re not centuries away from producing better outcomes,’' he added, “but unless people raise the issue, we will never address it as we need to.’'

Development of the adequacy issue also might help state leaders make more rational funding decisions, according to Chris Pipho, who oversees state relations for the Education Commission of the States.

‘Money Makes a Difference’

Mr. Augenblick contended that, while the adequacy issue might make interesting fodder for policymakers and researchers, it probably does not belong in court.

“This fits in with the school-improvement approach people are taking, but you don’t ever want to end up where you define what the resources are other than money, because that runs roughshod over issues of local control,’' he said. “We should leave that up to districts and schools to decide.’'

“Plus, more and more, governors and legislators are pulling away from the idea that they know what the best inputs are,’' he added. “It’s actually become a sub-local issue.’'

Advocates of adequacy cases argue, however, that the issue can not be put to rest so easily.

“I don’t think adequacy is a nebulous issue,’' said Ms. Hershkoff of the A.C.L.U. “Most states have developed standards to define some basic education, and a court can enforce those rules and regulations.’'

“It seems to me that, if we cannot say what an adequate education is, taxpayers ought to be pretty concerned,’' she added.

Given the ambiguities at work in any school-finance case, Mr. Grossman, the Oklahoma City lawyer, predicted that the adequacy strategy could be persuasive in court.

“Before, you were trying to determine what is meant by equitable or equal,’' he said. “Now, we’re trying to determine what is meant by adequacy. There is not a lot of research out there, so we are all operating on presumptions that money makes a difference.’'

Billy D. Walker, a veteran of Texas’ school-finance debate, said districts will likely not be satisfied unless states settle both issues.

“People aren’t looking at this just to be litigious,’' said Mr. Walker, the executive director of the Texas Association of School Boards. “It has to do with leveling down and, in Texas at least, looking at the long-term funding of education.’'

“Adequacy is an issue that has always taken a back seat to equity, and it ought to, but they do go hand in hand,’' he added. “A system that is equitable and inadequate is hardly any better for students than a system that’s inequitable.’'

A version of this article appeared in the June 17, 1992 edition of Education Week as School-Finance Suits Look Beyond Money To Issues of Quality