Education Funding

What Happens (or Doesn’t) After Courts Order States to Improve School Funding

By Mark Lieberman — June 23, 2023 8 min read
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Pennsylvania lawmakers have begun work on improving school funding and closing gaps between school districts in wealthy and poor areas. If history is any guide, they have many long nights ahead of them.

Almost exactly 50 years ago, the U.S. Supreme Court ruled in San Antonio v. Rodriguez that the U.S. Constitution does not guarantee a federal right to education, and that funding systems based on local property taxes aren’t inherently discriminatory.

Since then, school districts and public school advocates have pursued litigation in all but three states, aiming to hold governors and legislatures accountable to the promises for free and equal access to education enshrined in their own state constitutions.

These cases often push states to increase investment in everything from teacher salaries to building maintenance. Many of the resources that school staff see and use each day in the classroom are there because of the arguments lawyers made in court.

Sometimes, these efforts fall short; defendants have triumphed in slightly more than half of such cases since 1968, according to recent research.

But sometimes, they succeed, as in Pennsylvania earlier this year, where Judge Renée Cohn Jubelirer declared that the state’s approach to school funding violates its constitution and needs a massive overhaul.

That effort sent a wave of jubilation rippling out to many corners of the state, particularly in districts where funding has long been painfully scarce.

But it doesn’t mean the issue is fully resolved. It just means there’s a mandate and a will to resolve it, said Michael Rebell, the executive director of the Center for Educational Equity at Columbia University Teachers College.

“It’s a lever, it’s a tool,” Rebell said of the court verdict and others like it. “The judges don’t claim to be experts. They can’t solve the problems on their own.”

In some cases, that’s true of lawmakers as well. In North Carolina, a judge in 2021 ordered the state legislature to immediately come up with $1.75 billion to address a longstanding pattern of underfunding schools.

But lawmakers haven’t yet agreed on how much to invest and when. In the meantime, a partisan shift on the state’s top court could override the previous verdict, even though judges there have asserted since the early 2000s that the state’s school funding system violates the constitution.

“This is a generation and a half of kids who, even though the court found their rights being violated, went through an entire system of education without those rights being fulfilled,” said Kimberly Robinson, a professor at the University of Virginia School of Law who advocates for a federal right to education.

Similar lawsuits are ongoing in Arizona, New Hampshire, and Wyoming. Here are a few of the hurdles states have to overcome when courts and judges say they have to improve school funding.

Shifting political winds

School funding cases often stretch over decades and span multiple governors’ terms and legislative sessions. Their outcomes hinge on who holds power at the crucial time.

North Carolina offers a recent case study. The Leandro case there has been winding through the courts since the 1990s, with judges asserting since the early 2000s that the state’s school funding system violates its constitution.

Judge David Lee in 2018 commissioned a $1 million study of the state’s school finance system that culminated in a report urging billions in additional public school spending. But in the years since, the state has moved slowly to fund several of the report’s recommendations, even after the state Supreme Court last fall upheld the order for an immediate investment of $1.75 billion.

In November, elections changed the political dynamics. The state Supreme Court went from a 4-3 partisan split with Democrats in control to a 5-2 split led by Republicans. As of April, Republicans also gained supermajorities in both houses of the legislature. The governor, Roy Cooper, is a Democrat.

Lawyers representing schools now expect the court will grant a motion from the defendants to re-hear the case, and potentially change the verdict. The state Supreme Court earlier this year blocked the $1.75 billion transfer it had previously approved.

“It just really is hard as a lawyer to understand how this could happen,” said Matt Ellinwood, education and law director for the North Carolina Justice Center, and a contributor to the plaintiffs’ case. “It is a political thing, not a legal thing that’s going on here.”

Complex decisions with unexpected consequences

Many states employ only a small handful of experts who understand the complex education funding formulas inside and out.

“State legislators don’t have all the time in the world and are not necessarily all experts in school finance,” said David Knight, an assistant professor of education finance and policy at the University of Washington. “They do the best they can.”

In the case of his state, that’s not always enough. Knight’s recent research has centered on the years following policy reforms that the state implemented in response to the McCleary school funding case.

But Knight has found that the policies, while increasing total school funding in the state, have provided more funding to districts in wealthy areas than to districts in poor areas—the opposite of the progressive funding scheme that the courts had in mind.

Exactly why this has happened despite good intentions from lawmakers is still up for debate. But Knight believes the answer may lie with policies that directed more funds to places with cost-of-living increases and capped the amount of money school districts can raise locally.

“We went about it wrong, in a way that disproportionately harmed districts with more students of color, more low-income kids,” Knight said.

The answers to key policy questions aren’t always tidy. In New Jersey, advocates for charter schools are currently pushing to take advantage of the state’s dedicated funding stream for improving school facilities, which was established in the aftermath of the Abbott court rulings that dictated a more robust school funding approach statewide. District leaders in low-wealth communities like Paterson have pushed back, arguing that their dire needs for the money supersede the interests of other schools that want a piece.

The key to a successful legislative strategy, Knight argues, is often in tackling the fundamental issues upfront, rather than waiting for nuance to creep in.

In Washington state, “there needed to be fundamental questions about what the system should look like. And instead there were 11th-hour decisions being made about how the funding formula’s going to work,” Knight said.

Unpredictable economic conditions

States’ capacity to make massive investments in education varies considerably depending on the status of the broader national and global economy. This spring, for instance, many states had massive surpluses to devote to K-12 priorities, a stark contrast from a couple of years ago when the COVID-19 pandemic took a massive toll on tax collections and other state revenue.

In New York, the state legislature in 2007 concurred with a judge’s verdict in favor of $5 billion in new funds for New York City schools and additional money for schools in the rest of the state. Rebell was involved in that case.

“We had this great plan, we had strong support throughout the state, it sailed through the legislature in the Senate, something like 80-2 endorsed it,” Rebell said. “But in year three, we had this huge recession, so the legislature put on hold any further increases.”

In fact, the state started making cuts to education funding when stimulus money from the federal government started rolling in.

The promise of that additional money—roughly $2.7 billion—went unfulfilled until Gov. Kathy Hochul took office in 2020 upon the resignation of her predecessor Andrew Cuomo. Her administration has since followed through on its promise to provide all that additional money, and the outstanding legal case demanding that investment is likely to be dismissed soon, Rebell said.

Loss of urgency

Lawyers, advocates, and politicians alike have to be in lockstep for long periods of time if they have any hope of reaching mutually agreeable decisions on improving resources for public schools.

Kentucky in the early 1990s represented a model for what productive school finance reform would look like, Rebell said.

Courts ordered a massive overhaul of funding systems as well as a broader rethink of governance and leadership. Schools set up decision-making councils with parents and teachers to work with principals on curriculum decisions. Preschool opportunities expanded immensely. And the state gradually rose in the national school spending rankings from near the bottom to the top 20.

“During the 90s every social scientist who was interested in reform processes was down there studying Kentucky,” Rebell said. “For a state like that to go from the absolute bottom to average spending and average proficiency, it’s an accomplishment.”

But more recently, Rebell said, momentum has slowed. Spending hasn’t kept up with inflation. Many people in the state’s schools have only dim memories of the booming energy of the 90s-era reforms.

That’s the fate that could befall Pennsylvania, Rebell cautions. With a Democratic governor who’s endorsed the plaintiffs’ case and a set of Republican lawmakers who have signaled they don’t plan to appeal the judge’s ruling, momentum appears to be in favor of increased school funding.

But it may be many years before the impacts of the judge’s ruling come into focus. David Lapp and Anna Shaw-Amoah from Research for Action, a Pennsylvania-based nonprofit, recently estimated the state would need to annually invest $2.6 billion (more than $1,600 per student) in salaries alone to ensure equal staffing across districts.

Achieving equity would be an even greater ask, they write: “Due to the higher level of student need, particularly for the most inadequately funded school districts, it is likely that these districts would actually require staffing at even greater levels than what is provided in the currently adequately funded districts.”

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