Could the pandemic and its economic fallout add fuel to the legal battle for more K-12 aid and the overhaul of state funding formulas?
For school finance lawyers and the scholars who follow these cases, the answer is a decisive yes.
“Advocates for public education, educators, civil rights organizations, have to really step it up now even more so than ever before to make sure that state legislatures don’t cut K-12 aid during this pandemic,” said David Sciarra, the executive director of the Education Law Center, which has litigated several school funding cases, including one in Flint, Mich., regarding aid for children diagnosed with lead poisoning. “We know that when they do, that the poorest and most vulnerable districts are always going to take it on the chin.”
Others argue that the pandemic may even inspire a new round of lawsuits.
“During the last recession, people were afraid to sue in the first few years because they thought the courts would be less receptive or legislation would be harder to get through because states were broke,” said Derek Black, a scholar at the University of South Carolina who recently published Schoolhouse Burning, a book that argues the last decade was one of the most politically and financially devastating for public schools.
“But I think this time around, folks are thinking, ‘We gave you a pass during the last recession, but what we found is that you operated with a level of such bad faith, you won’t get a pass this time.’ They’re going to sue much more quickly.”
Legislatures vs. Courts
State attorneys general historically have argued that legislatures, not courts, should decide how to spend K-12 aid and that overhauling property, income, and sales tax systems is too politically difficult, especially during a recession when voters are financially struggling. Fiscal hawks have argued that low-income districts don’t properly manage their money and that money can’t actually improve academic outcomes.
But just last week, Delaware’s Democratic Gov. John Carney settled a case with the state NAACP and a coalition of school funding advocates alleging that Delaware’s antiquated school funding mechanism leaves students with special needs, English-language learners, and poor, Black, and Latino students attending severely underfunded schools that continually fail to meet the state’s own academic benchmarks.
According to the settlement, the state’s governor will be legally obligated by 2024 to propose a budget that will alter Delaware’s tax structure to annually provide at least $60 million for the state’s historically disadvantaged students.
The ruling showed that courts may institute decisions that hold states’ feet to the fire for years to come, said Michael Rebell, a professor and executive director of the Center for Educational Equity at Teachers College, Columbia University, who has tracked school funding litigation.
“Delaware basically said, ‘We’re not going to squeeze the state to come up with money during the middle of this pandemic when revenue is being cut, but we’ll make a settlement that’s looking at a future time period,” Rebell said.
Even after rulings as in the case of Delaware, it can take several years for legislatures to comply. But lawyers also point out that states can raise taxes and redistribute property tax revenue in order to provide low-income districts with more money during a recession.
The Delaware settlement came on the heels of rulings in Connecticut, New Mexico, and North Carolina in which politicians and judges alike agreed that school funding formulas failed to meet constitutional merit.
Similar school funding cases are set to be heard in New York, Pennsylvania, and Tennessee in the coming months.
Progress Wiped Out
The last recession was financially ruinous for poor and majority Black and Latino school districts, almost wiping out the progress states had made in the last half century in closing funding gaps between property-rich and property-poor school districts. Many of those school districts, even before the pandemic, had yet to financially recover from recession-era budget cuts.
The pandemic has again blown a crater in sales and income tax revenue on which property-poor school districts are heavily reliant. Without a substantial federal bailout, low-income districts are expected to lose millions of dollars in the coming years, which will undoubtedly have academic repercussions.
While school funding advocates have pinned their hopes on state courts as a backstop to budget cuts, cases take years to wind themselves through lower courts.
In 13 cases in the last decade alleging states’ K-12 spending was inadequate and/or inequitable, four state courts ruled in favor of the plaintiffs seeking changes to state K-12 spending, said Rebell, who is tracking cases. For cases in which plaintiffs were urging courts to force states to comply with previous rulings to provide more funds for schools, plaintiffs were successful eight out of 10 times.
“A lot of state courts were willing to say, ‘Even though it’s a recession, that doesn’t put students’ constitutional rights on hold. We said funding is inadequate, and we meant it and we’re going to follow through,’” Rebell said.
In the case of North Carolina, where the state’s supreme court ruled in January that the state has not provided a “sound, basic education” to a large segment of its student body, the legislature may be less willing to institute the sort of draconian budget cuts it would have without a ruling hanging over its head, Rebell and Sciara said.
But the mere threat of a lawsuit can also get legislatures to take more seriously political movements, such as the #RedforEd protests, in which teachers across several states rallied for better pay and more money for schools, to upend states’ inequitable funding strategies.
In Maryland last year, the state’s ACLU and NAACP threatened to reopen a school funding case after political wrangling stalled an effort to provide millions more dollars to low-income school districts.
For other school funding cases set to go to trial in the coming months, including in New York, Pennsylvania, and Tennessee, lawyers are gathering evidence provided by the pandemic to prove that states’ funding models continue to leave low-income districts unable to provide teaching and learning to their neediest students. Among their arguments: that many students don’t have access to laptop computers or broadband to sign into class; districts can’t afford to pay for the personal protective equipment necessary to avoid a coronavirus outbreak; and districts can’t afford to hire new staff members to avoid student crowding and maintain social distancing.
“When things get back to normal, what’s going to be the lingering impact of this thing?” Rebell asked. “How much of compensatory services are states going to need to provide to make up for what students have lost?”
A version of this article appeared in the October 28, 2020 edition of Education Week as Why the Pandemic’s Recession May Fuel Legal Push for More K-12 Aid