Oct 14, 2005 - ... to thank Morgan Goatley, Rosemary Kendrick, Adam Schaeffer, and ...... 39 Reagan Walker, âEntire Kentucky's School System Is Ruled .... Jersey 2002-2003 Edition, Appendix A.2, http://policy.rutgers.edu/cgs/PDF/NJPS02.pdf. .... to Adequacy: The DeRolph Saga,â Journal of Education Finance, Spring.
Stimulant or Salve? The Politics of Adequacy Implementation Frederick M. Hess American Enterprise Institute PEPG 05-29
Preliminary draft Please do not cite without permission Prepared for the conference: "Adequacy Lawsuits: Their Growing Impact on American Education" Kennedy School of Government, Harvard University, October 13-14, 2005
The author would like to thank Morgan Goatley, Rosemary Kendrick, Adam Schaeffer, and Steve Lechelop for their invaluable research assistance.
Introduction Adequacy cases are not narrow, legal disputes. Rather, given the difficulties in making the statutory case that a state’s educational system is “inadequate” or “inefficient” by a clear or historical legal standard, adequacy suits are claims that the performance of a state’s educational system is offensive in light of that state’s self-proclaimed constitutional commitments. As adequacy advocate Peter Schrag has explained, “The suits merely demand that the states, which have the ultimate responsibility under their own constitutions for public education, meet their constitutional duties.”1 The strategy of adequacy activists rests on the presumption that a majority of state elected officials are largely satisfied with a status quo that gives the suburban majority access to reasonably effective schools while depriving politically weak, poor, and disproportionately minority populations in central cities and rural fringes of equal educational opportunity. Arguing that circumstances leave the poor unable to effect the requisite changes through legislative politics, adequacy proponents approach reform as a question of constitutional obligation in which the courts are obliged to intervene, secure the rights of the dispossessed, and compel legislators to bring policies into accord with constitutional requirements. Adequacy suits seek to stop legislators from regarding K-12 education as one state service competing for limited funds and instead force them to regard specified funding levels as securing a fundamental, inalienable right. As professors Todd DeMitchell and Richard Fossey have noted, “The adequacy argument shifted the focus beyond dollar disparities to what the dollar buys…Instead of just comparing school districts’ per pupil expenditure, the courts were considering whether the state was providing the level of education that was necessary for productive citizenship and competition in the labor market.”2 Given that adequacy suits unflinchingly seek to use the courts
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as a lever of social and political change, the most interesting questions may address the degree to which they trigger the hoped-for changes in educational politics and policy. Adequacy champions have been straightforward about the scope of their ambition. In a prominent Education Week editorial defending adequacy lawsuits, Michael Rebell—executive director of the Campaign for Fiscal Equity in New York City, and executive director of the Campaign for Educational Equity at Teachers College, Columbia University—has declared, “What [opponents] fail to grasp is that the education adequacy lawsuits have become the driving force for achieving the aims of the standards-based-reform movement… Now, the courts are not only mandating adequate levels of funding, but they are also pushing the state officials and the policy and research communities to enhance the instructional capabilities of all schools to meet the broad range of student needs.”3 Local advocates echo these high hopes. Robert Sexton, executive director of a Kentucky advocacy group praised his state’s adequacy decision as, “The most important ruling on education in our lifetimes.”4 The modern era of school funding litigation emerged from the civil rights movement and the aftermath of Brown v. Board of Education. Most of the initial school funding cases, filed in the 1970s, focused on equalizing spending across school districts. In these earlier “equity” cases, which faced fierce and predictable opposition from the suburban communities that stood to lose dollars, plaintiffs only won about one-third of the time. Frustrated by those losses, and eager for a more radical approach to remaking systems of school financing, governance, and provision, litigators embraced the “adequacy” strategy. At least in theory, this tactic sidestepped the sticky question of imposing concentrated costs on politically potent, high-spending suburbs by promising every student an “adequate” education. It skirted the redistributive struggles of equity by vaguely pledging to “level everyone up.”5 This strategy was politically attractive, though it
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implied a need for substantial new revenue that would either have to be taken from other programs or collected through tax increases (unlike the federal government, state governments are not able to run sustained deficits). Pursuing either strategy in the legislature would, of course, invite resistance from constituencies supportive of other programs and from opponents of higher taxes. Adequacy’s appeal was its potential to shift the debate from divvying up limited revenue to determining what “adequacy” implied, allowing proponents to call for policy decisions based on expert determinations of “student need” rather than on mere “political” considerations.6 The presumption was that student needs could be identified and addressed in an “objective” fashion divorced from the vagaries, imprecision, and relative judgments of democratic decision-making. In practice, the adequacy strategy may have rested on an exaggerated confidence in “objective” expertise;7 politically, however, it was a brilliant maneuver. The costs would still be borne by the state’s taxpayers, but those costs would be diffuse and not concentrated on particular communities. As Peter Schrag has noted in his influential 2003 book Final Test, “Advocates of the adequacy idea argue, quite correctly, that unlike equity, adequacy can be a winner for all schools. It does not require redistribution.”8 Adequacy litigants further heightened the allure of their case by linking demands for new spending to calls for broader “reforms.” Schrag, for one, has argued, “Inevitably, adequacy goes beyond money. It touches on virtually every fundamental issue in American education…Adequacy has major consequences at all levels, in the schools, in the districts and the states, and for the governors, school board members, legislators, superintendents, and principals who are supposed to run them.”9 Since 1989, when plaintiffs embraced the adequacy strategy, they have won two-thirds of finance
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cases.10 Moreover, when using a definition of “adequate” based on state standards and linked to the dictates of citizenship and employment, plaintiffs have won three-quarters of the time.11 In practice, because the definition of what constitutes an “adequate” education is a slippery concept, policymaking and implementation are crucial to determining the meaning of these victories. Few state constitutions actually mandate that the state provide an “adequate” education. Typically, the constitutions call for school systems that are “thorough and efficient” or “uniform”. Indeed, only Georgia’s state constitution (which, adopted in 1983, is the most recently ratified state constitution) includes “adequate” in its education clause. Unable to rely on clear doctrine or established legal frameworks, courts have been forced to define new state obligations, speak broadly of possible solutions, and then enjoin the elective branches to act. We know little about the actual impact of adequacy suits, especially on policy or practice, and, as we will shortly detail, research on their impact is mixed. At best, proponents can document an increase in school spending in selected locales. However, we know little about the ensuing changes in student achievement, education policy, education decision-making, or the shape of school reform. Ultimately, the key to the impact of adequacy rulings becomes the legislative branch—the entity charged with carrying out these court rulings that current spending is inadequate and existing practices unacceptable. Adequacy decisions create a “policy window” for reform—an opportunity in which a public problem is defined, attention is focused, judicial cover is provided for legislative activity, and a variety of remedies are put forward. It’s not self-evident how elected officials will react to this opportunity in the short-term or how their reaction may evolve over the long term. Especially in the short-term, there are at least three ways legislators might regard adequacy decisions: as an excuse to spend more and push difficult reforms, a challenge to institutional
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prerogative and a reason for resistance, or a charge to spend more, but to spend in ways that are constrained by longstanding political pressures. In the first case, the judicial rulings might lift the budget constraints that usually force legislators and governors to make difficult (and potentially unpopular) choices. Adequacy rulings may enable legislators and governors to more readily ask the voters to accept otherwise unpalatable tax increases. Br’er Rabbit, in Uncle Remus’s classic tale, fooled his capturers by declaring he didn’t want to be thrown into the briar patch when he knew in fact that the patch was his only escape route. In the same way, elected officials may welcome the opportunity to publicly oppose taxes while “reluctantly” complying with court direction to collect and disburse new revenues. Moreover, the additional resources may allow reformers to make disruptive measures palatable by accompanying them with new resources. Legislators may enjoy grand opportunities to reinvent schooling by using new spending to convince teachers, administrators, and new communities to accept distasteful changes. Alternatively, protective of institutional prerogatives, resistant to judicial intrusion, and reluctant to raise taxes, legislatures may simply refuse to comply with court orders. Legislators like to do things that they can get credit for (like providing particular programs or voting for higher teacher salaries) but don’t like to do things that they can’t take credit for (like voting for arcane changes in funding formulas) or that will anger constituents (like raising taxes). 12 It is entirely possible that elected officials could respond to court directives grudgingly, halfheartedly, or not at all. Finally, even if courts prompt legislatures to spend more, such actions may result in little substantive change. Influential, active constituencies, political realities, and organizational inertia may allow a great deal more money to be spent while producing little significant change.
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Efforts for dramatic change that proved more symbolic than substantive in transforming troubled school systems are hardly novel in the history of school reform.13 Courts may be able to address budgetary disparities, require legislators to launch new school facilities or programs for preschool, or insist on new governing arrangements, but the constituency demands, electoral realities, and institutional incentives that produced the problematic arrangements cannot be so easily abolished. They may return, either slowly or in a furious rush, and ensure that, postreform, districts and schools do little differently than they did before. In considering the consequences of adequacy decisions, it is useful to think of three kinds of possible court-ordered change: new spending, accommodative reforms, and disruptive reforms. It is particularly instructive to recognize that the three vary in the degree to which they alter status quo arrangements, concentrate costs, and are susceptible to ready court oversight. Requiring new K-12 spending is the easiest change to make, the one most attractive to a range of influential education constituencies, and the one in which state compliance can most readily be monitored. Consequently, courts frequently offer clear direction as to the amount of additional money that legislatures are to spend but give more discretion on how those funds are spent. Civil rights groups, teachers unions, school boards, and urban officials all support such additional expenditures and the new programs they fund.14 For instance, Melissa Carr and Susan Fuhrman have observed that “special education advocates, bilingual program advocates, gifted and talented program advocates, and advocates for ‘regular’ education often compete with each other for pieces of the pie,” but “all of these groups consistently agree that there should be more resources spent on education.”15 Adequacy litigation’s appeal is that it initially permits all of these constituencies to unite to expand the funding pie. Because such expenditures imply no concentrated costs for any group, other than the implication that taxes will be raised in some
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fashion (with the distribution of the burden not yet determined), the calls for new funding tend to meet little opposition except from smaller anti-tax groups. (Later, of course, when the tax burden becomes a reality for taxpayers, the politics of the spending equation can change). Accommodative reforms augment current practices but don’t significantly disrupt accepted routines or habits of mind. Expanded preschool programs, additional counseling, or new resources for literacy don’t require existing educators, local officials, or community members to accept wrenching changes and don’t threaten the jobs or working conditions. Because it is difficult for courts to determine whether specific measures comply with judicial wishes, legislators inevitably have significant freedom and incentive to favor such reforms and craft them in ways that are as accommodating as possible. Disruptive reforms are those which fundamentally alter the status quo by changing the way schools or districts operate, by restructuring or threatening jobs, compensation, benefits, or working conditions; by overturning established understandings governing adult responsibilities, incentives, and consequences; or by otherwise disrupting the prevailing routines of a state’s school system. Whereas new spending and accommodative change are unifying measures that unite disparate education constituencies, disruptive change creates division because it asks certain constituencies to bear concentrated costs. Such an approach may undercut support for the adequacy judgment, encouraging even those coalition members who are relatively unthreatened to steer away from measures like charter schooling, low-performing schools, removing ineffective educators, or performance-linked pay in order to protect the integrity of the coalition. There is no intrinsic reason that accommodative or disruptive change ought to be universally preferred. In a high-performing system, supplemental changes that avoid disruption are likely to be attractive; in a dysfunctional system, aggressive reforms that transform
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organizational culture and routines are likely to make sense. Given the adequacy critique that many school systems are not just underfunded but are grossly ineffective, the thrust of adequacy rhetoric seems to imply a desire for disruptive change. 16 Ultimately, however, the political process creates strong incentives for plaintiffs and judicial remedies to focus on measures that unite influential interests—winning the case, claiming additional resources and services, and introducing mild and popular reforms while steering clear of divisive proposals. Further, while the public attention, judicial scrutiny, and opportunity to spend new money seem designed to spark legislative activity after an adequacy verdict, it is unclear whether the courts or adequacy proponents can summon the muscle to safeguard these policy victories after the window closes. Adequacy cases raise fundamental questions about the ability of courts to compel substantive changes in policy. Are courts capable of prompting legislative changes in spending or allocation, given institutional arrangements and political forces? Can court decisions, even if they do influence legislative behavior and spending, actually ripple into substantive remaking of school provision—or might even the successes only increase the flow of funds into otherwise unaltered systems? How effectively can litigation efforts help mobilize the democratic public and necessary constituents to make lasting reform?
Previous Research As the courts have addressed policy debates ranging from desegregation to welfare reform to environmental protection, the role of the courts in shaping social change has gained in import. Proponents of judicial activism have regarded the courts as an invaluable ally in compelling majoritarian institutions to secure the rights of the politically weak and the
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vulnerable. Skeptics have responded by raising doubts about the efficacy, significance, and long-term consequences of court activism and by suggesting that many victories are less impressive than proponents would suggest.17 Recent work has identified variables that help to determine the impact of court decisions. These include the recognition that state and federal courts may have very different impacts, that standards for “effective” court intervention are subjective, that public opinion and legislative composition are important, and that policy areas and attempted interventions are not interchangeable.18 The bottom line, though, is that there is little agreement on whether or when court activity is likely to be decisive. Given the mixed thinking on courts and social policy, it should come as no surprise to find that the research on the effectiveness of education finance lawsuits is similarly indecisive. In the most comprehensive review of school finance litigation literature to date, David Thompson and Faith Crampton in 2002 analyzed 229 papers that discussed the issue.19 Of those, just twenty-nine directly addressed the effects of litigation in a systematic fashion and sought to measure the causal impact of litigation. 20 Nine of twenty-nine impact studies reached generally positive conclusions on the impact of the litigation (on outcomes including financing, public opinion, and attention paid to the issue) while the majority found mixed results or outcomes inconsistent with litigant aims. Thompson and Crampton commented, “An outside observer would likely conclude that we are highly doubtful of the merits of school funding litigation.”21 Their tone echoed the verdict rendered by two earlier researchers who surveyed the field and concluded, “[The] returns on all of the expenditures of money, time, and energy [on finance litigation]…are modest at best. Many states have climbed aboard the carousel of litigation and resulting legislation and gotten off only to climb aboard once again.”22
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The nine positive impact studies identified by Thompson and Crampton generally focused on the degree to which the suits boosted school spending. Salmon and Alexander found that funding increases were 10 percent higher in states where plaintiffs had won their suits.23 George Hickrod used longitudinal data to assess litigation effects and has found generally positive, if small, effects from early school finance lawsuits.24 In a study that examined forty-six states over a five year period, three scholars found that court intervention substantially increased education funding—by 22 percent statewide overall, and by 29 percent in the poorest districts.25 The majority of research has been much more skeptical of the effects of finance litigation. Thompson and Crampton concluded in their meta-analysis, “Most studies do not show a clear trend of improved equity, regardless of whether a lawsuit was won, lost, or even filed…[and that] nearly as much change in formula design may result from voluntary legislative reform as from court-ordered reform.”26 Despite his earlier work finding a positive impact of finance suits on spending, George Hickrod and his colleagues later concluded that the expense, time, and unforeseeable consequences of litigation make it a risky strategy.27 Bradley Joondeph has even found that equity suits appeared to reduce overall state education spending, relative to the national average, and that some poor districts may have fared better before litigation 28 Beyond the absence of firm conclusions about the financial impact of school finance litigation, there is limited attention paid to the role of political institutions in mediating the impact of litigation—especially on substantive policy considerations other than spending. Determining whether and how courtroom success has translated into change requires turning from the legal disputes to the world of politics, policy, and outcomes. Three decades of research on education finance litigation have yielded uncertain results, with scholars reaching little consensus beyond the fact that political and social context matter for the impact of litigation.29
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Political scientists Douglas Reed and Scott Sweetland have offered two of the few textured political accounts depicting the political forces that can stall or facilitate reform.30 Other analysis has suggested a relationship between a state’s conventional politics and the substance of school finance court decisions, with judiciaries in more conservative states more likely to defer to elected officials and those in more liberal states more likely to mandate redistributive changes.31 In 2004, Christopher Roellke and his colleagues argued that, “Preliminary evidence also suggests that this litigation, although a time-consuming and expensive approach to remedying inequity and inadequacy, has generated considerable public, judicial, and legislative support for education.” Yet, they also noted that litigation alone is not enough to change school finance systems—much less significantly impact the academic performance of disadvantaged children.32 Some authors have argued that a focus on the immediate effects of litigation is misplaced because fundamental political dynamics will reassert themselves in the long term.33 Michael Mintrom, for instance, has examined the pressure exerted by wealthy parents upon legislators and concludes that equity gains won in the courts are likely to be rolled back through the political process.34 While Mintrom’s hypothesis would seem to make this area fertile ground for political inquiry, the reality is that arguments about who benefits from these suits or how the suits affect legislative behavior have been subjected to little careful scrutiny. Existing analyses, while valuable, represent only initial steps towards addressing such questions. One variable of particular interest when thinking about the role of state courts is the degree to which state judges are susceptible to public opinion. Unlike federal judges, state judges typically must run for reelection or confirmation. State court decisions can also be overturned through amendments much more readily than can those of federal justices. Both these factors leave state judges much weaker institutionally than their federal counterparts.35
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Given this reality, and that opinion on the impact of even the relatively strong federal courts is mixed, the ability of state courts to drive policy change would seem to deserve careful scrutiny. To date, for all the attention devoted to measuring spending inequality, there has been remarkably little paid to how these decisions interact with political considerations or affect policy. What happens when spending is increased? What does it fund? How significant, and lasting, are the policy changes? Such questions can only be answered by studying the legislation and implementation efforts that follow adequacy decisions. It is to this task that we turn.
Methods As of February 2005, lawsuits challenging state funding methods of public schools had been brought in 44 states; 32 of the suits were adequacy lawsuits. In those cases, courts ruled 14 times that the school funding system violated the state’s constitution—in whole or in part—and seven times that the state system was constitutional. Four cases have been settled out of court, six are still pending, and the Indiana case was withdrawn before it was heard.36 The analysis here draws on brief case studies that sketch the suit, political response, and substantive outcomes in four states where adequacy suits have been successful or have been ruled in favor of the plaintiffs: Kentucky, New Jersey, Maryland, and Ohio. These states provide an illustrative cross-section of where adequacy plaintiffs have been successful. Kentucky was the pioneering adequacy case and has been widely touted as a model of what these suits can accomplish. New Jersey is one of the most hotly contested and longest running finance reform efforts in the nation, featuring an enormous investment in the state’s much-discussed Abbott districts. Maryland is a case in which the adequacy suit concerned only Baltimore, the state’s
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single major city, and prompted a mediated settlement that addressed most of the city’s demands. Finally, Ohio provides a case where a defiant legislature resisted court mandates. The case studies draw on archival searches, journalistic and scholarly accounts, state and federal data, and interviews with more than 30 state-level participants and observers. The research was conducted during spring and summer 2005. Each case seeks to provide an overview of the implementation and the impact on education policy and politics. Brief case studies of the kind attempted here cannot provide the nuance sufficient to satisfy those who are well-versed in the developments of any given state. However, they may be enough to permit the distillation of some general insights that have been overlooked amidst the details of more microscopic examinations. Kentucky: Better Than the New Deal? Kentucky is often heralded as an example of the potential of adequacy litigation to drive transformative school reform. As Melissa Carr and Susan Furhrman explain in Equity and Adequacy in Education Finance: Issues and Perspectives, Kentucky adequacy lawsuits should be seen as a “somewhat miraculous” example of “school finance reform that accomplished equalization and comprehensive reform at the same time.”37 City College of New York Professor Michael Paris has similarly argued that “the Kentucky reform effort, then, is indeed a success story,” one that created a “new school finance system that has increased the absolute level of resources for education and significantly reduced the degree of relative resource inequality across school districts.”38 John Brock, the state school chief, declared, “To say that this decision is historic or far-reaching is an understatement…It’s simple, it's brilliant, and it's no doubt revolutionary.”39
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One excited Kentucky principal proclaimed, “This reform is the greatest hope we have ever known. I predict it will succeed, and when it does, it will have done what the New Deal did not accomplish and what the War on Poverty did not accomplish. We will have elevated the standard of living and productivity of my people forever.”40 Kentucky is widely regarded as the best-case scenario for the ability of adequacy to make a difference—meaning that any shortcomings seen there may be particularly instructive regarding the limits of the ability of adequacy suits to reshape policy. In 1989, when the Kentucky Supreme Court issued its precedent-setting decision in Rose v. Council for Better Education (790 S.W.2d 186), Kentucky was a poor state with a weak educational system. In 1990, Kentucky had more residents in poverty than all but five states.41 Just 69% of Kentuckians age twenty five and older had completed at least a year of high school (the comparable national figure was 82%), just over half of Kentuckians had completed at least the full four years of high school, and the percentage of citizens 25+ who had completed four years of college was third to last in the country.42 In 1987, the Carnegie Foundation characterized one-fourth of Kentucky’s public school teachers as “teaching subjects [they were] unqualified to teach.”43 Influential figures were vocal and unsparing in their descriptions of the state’s education system—characterizing it as a “laughingstock”44 and on “the bottom rung of education.”45 Jack Moreland, president of the Council for Better Education, said that in the 1980s, “We [Kentuckians] were in the toilet in almost every category you measure with. We were at the bottom of the barrel.”46 By the late 1980s, there was a statewide consensus that the school system was an embarrassment and retarding economic development. This meant that civic and political leaders welcomed the Rose decision as a chance to launch reform.
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In seeking to change K-12 schooling, the plaintiffs in Kentucky enjoyed significant advantages. During the 1980s, would-be reformers had created an organization, called the Prichard Committee for Academic Excellence, which would spearhead the next two decades of reform. The Prichard Committee was formed in 1980 as a 30-member advisory panel to the State Council on Higher Education in order to help improve higher education in Kentucky. The Committee’s members were appointed by the State Council and Edward Prichard, a prominent Kentuckian who had long been involved in education reform, was named chair. In 1983, several members, led by Prichard, transformed the Committee into an independent organization focused on improving statewide education. In 1985, the Prichard Committee produced an influential report called A Path to a Larger Life: Creating Kentucky’s Educational Future that called for dramatic school reform. In the early 1980s, a second organization called the Council for Better Education was formed to gather support among district superintendents. Created by Arnold Guess, a veteran Kentucky school administrator, the Council was created to build the political strength necessary for an eventual adequacy lawsuit. The adequacy suit was originally filed in 1985 by the Council for Better Education, a coalition of sixty-six schools districts (approximately one-third of all school districts in Kentucky.) Traditionally, efforts to promote school reform had faced resistance from citizens in wealthier counties who feared that they would lose out as money was redistributed to poor rural communities. The Council addressed this concern by working from the start to characterize their proposal as “anti-Robin Hood.”47 Education had been a significant part of the state’s political agenda for at least five years prior to the Rose decision. Democratic Governor Martha Layne Collins (a former Kentucky high school teacher) focused extensively on schooling after her 1984 election. Collins’s successor,
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Democrat Wallace Wilkinson, made education a central issue in his campaign. Both governors, however, met legislative resistance to new taxes. Collins fought for a $300 million tax package to fund her proposed reforms but, on her first attempt to pass it in 1984, could not find the votes even in a legislature where fellow Democrats controlled three-quarters of the seats in the House and the Senate. Limited to a single term by the Kentucky constitution, Collins was succeeded by Wilkinson, who found himself limited by his pledge to veto any tax increase and to fund any education needs with a lottery. The Rose lawsuit, filed in November 1985, charged the governor, state legislature, and other elected officials with failing to provide funds adequate to provide the “efficient system of common schools throughout the state” mandated by the Kentucky constitution. Four years later, in 1989, a 5-2 state Supreme Court majority handed the plaintiffs a sweeping victory. The Court’s ruling went far beyond those issued in earlier equity cases, claiming that the entire Kentucky education system was unconstitutional, declaring, “This decision applies to the entire sweep of the system—all its parts and parcels.” The Court ordered taxes to be raised to cover these reforms, determining that there was “no viable alternative.” The Court also outlined seven broader educational goals dictating which subject areas should be covered, including everything from science and technology to the humanities and the arts, before urging the General Assembly an opportunity “to launch the Commonwealth into a new era of educational opportunity.” Because the Court ruling allowed elected officials to address a festering problem while providing coverage for painful tax increases, the political process of enacting the ruling was a smooth one. In July 1989 the General Assembly created the Task Force on Education Reform. The final Task Force report, proposing the Kentucky Education Reform Act (KERA) was adopted by March 1990. The executive director of the Prichard Committee commented, “I doubt
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that any legislature in the country has responded so strongly and forthrightly to a Supreme Court decision.”48 The legislation would be funded by new taxes, primarily a one percent increase in the corporate tax rate and a one cent increase in Kentucky’s sales tax. Together, the measures were projected to bring in $1.3 billion annually. New spending was to be phased in over several years and targeted especially at improving the funding and education of at risk students.49 KERA met with little opposition. Though the Kentucky Education Association (KEA) generally supported the law—and was enthusiastic about the new spending—it criticized a provision barring school employees from campaigning for potential school board members. The bill also met scattered opposition from the Kentucky School Board, pockets of anti-tax citizens in central Kentucky, and organizations concerned about increased state involvement in local schools.50 However, the criticism was muted and never threatened the passage of the bill. The rapidity, smoothness, and ease with which the state passed substantial reforms and significantly raised taxes was rather remarkable—and may suggest just how “primed” elected officials were to take advantage of the policy window that the Court opened. In a real sense, the legislature and the governor were looking to the courts to provide them the political ‘cover’ to take steps that they wished to take but deemed politically perilous.51 KERA has been hailed as a model of ‘systemic reform’ and an adequacy reform that sought to fundamentally remake a state’s schools.52 One scholar credited KERA with “[seeking] to change everything at once— from teaching methods and what is taught, to how student achievement is defined and evaluated, to school governance at all levels, to the school finance system.”53 In truth, KERA was somewhat less ambitious—and certainly less disruptive—than the more breathless accounts suggest. The Kentucky Legislative Research Commission, in its report “A Citizen’s Handbook,” noted that KERA was designed to focus on questions of curriculum,
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governance, and finance. Specifically, KERA’s provisions were geared toward adding programs for at-risk students (particularly in early childhood), strengthening accountability measures, improving professional development, and fulfilling “a major commitment to technology.”54 Meanwhile, by 1992, the Kentucky Education Association’s head was urging more spending and declaring that KERA would likely fail if additional funds were not forthcoming.55 In practice, KERA’s implementation was uneven. The president of the KEA ruefully noted in 1997, “Will Rogers summed it up best when he said, ‘Liberty doesn’t work as well in practice as it does in speeches.’ We’re finding that KERA doesn’t work as well in our classrooms as it did in the law.”56 To mark the tenth anniversary of KERA’s implementation, the Kentucky Department of Education reported on the state’s progress in various KERA components and found a mixed record. The “finance” component of KERA reforms was the easiest to measure and implement. To tackle funding inequities, the legislature established a funding system—Support Educational Excellence in Kentucky (SEEK). Between 1989 and 1999, SEEK reduced the gap in per-pupil spending between the wealthiest and poorest districts by 37%, from $1,199 to $757.57 The KERA “governance” component, which included structural reforms and accountability measures, had more ambiguous results. On the state level, the elected state superintendent position was eliminated and replaced by a commissioner of education and the Department of Education was completely reorganized, with employees required to reapply for their jobs. At the district level, KERA transferred significant authority to school-based “decision making councils.” Comprising teachers, parents, and principals, the councils enjoyed significant managerial authority on a wide range of issues, including the hiring of principals and the budgeting of school funds.58 The councils gained authority at the expenses of district school
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boards, which had been plagued by nepotism, and superintendents. The number of schools with councils increased from 125 in 1990 to 1,238 in 2000, and a Kentucky Institute for Education Research poll in 1999 found that the councils enjoyed high and rising levels of support among teachers, principals, and parents—with the strongest support among principals and teachers.59 It was with regards to accountability where implementation may have strayed most dramatically from KERA’s blueprint. As initially passed, accountability was a pillar of KERA. Kentucky adopted a uniform standardized test, Kentucky Instructional Results Information System (KIRIS).60 KIRIS tested achievement through assessments that included portfolios and writing samples. The initial accountability system included a widely discussed and ambitious plan to link monetary rewards and sanctions to school performance. The KERA “Citizen’s Handbook” promised, for instance, “An accountability system to reward schools improving their success with students and to intervene in schools failing to make progress.”61 Schools were to demonstrate a specified level of improvement on KIRIS from one biennium to the next in order to receive monetary rewards. At the same time, the state could impose sanctions on schools that were chronically unsuccessful; those sanctions included the option to fire or transfer teaching staff and the option for students to transfer to “successful” schools. While the rewards took effect in 1994, the sanctions were delayed until 1996 and were removed after just two years, in 1998, when the state switched to the Commonwealth Accountability Testing System (CATS) due largely to educator concerns with various elements of KIRIS. The Courier-Journal in Louisville noted in a 1999 editorial that, “Firm and broad support [has been] expressed for…the new Commonwealth Accountability Testing System, whose predecessor was a lightning rod for dissent.”62 Interestingly, the “consensus” for CATS was widely regarded as a desirable sign and an indicator of progress on KERA.
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Some critics have suggested that the accountability system was much softer than its image, blaming an overly generous KIRIS system in which student performance on state assessments improved at a much more rapid pace than did performance on national assessments like the NAEP or the ACT.63 The measures designed to link rewards and sanctions to school performance encountered stiff resistance. In theory, the sanctions provisions of KERA remain on the books. According to a Kentucky Department of Education representative, the language in the original KERA law on rewards and sanctions has not changed. In practice, however, the meaning of sanctions is less clear. When asked how many teachers or principals had actually been removed due to sanctions during KERA’s fifteen-year existence, however, the Department representative reported that not one person had been terminated in the fifteen years they had been in effect. The Department’s website contains no mention of the more disruptive types of sanctions KERA originally promised. According to the site, “Schools falling short of their goal at the end of a particular cycle…receive a Scholastic Audit, receive the assistance of a Highly Skilled Educator, and are eligible to receive state funds to be targeted toward improvement.” Significantly, there are no incentives or actual “sanctions” in the state’s remedies.64 Brent McKim, the president of the Jefferson County Teachers Association, captured the hostility of teachers to uncomfortable reforms. He commented, in 2004, “Sanctions are the wrong approach.” Instead, he suggested, “We ought to be about recognizing and rewarding successful schools and assisting and making a priority of those schools that have not yet been successful.” 65 Meanwhile, the teacher bonuses were always largely symbolic and quite small, amounting to between $1,300 and $2,600 in the program’s initial years and just $300 to $900 in 2002. Frances Steenbergen, president of the Kentucky Education Association, observed, “Sticking a few-hundred-dollars carrot out there is not the way to motivate.” Steenbergen instead
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encouraged the legislature to spend the money to raise “teacher salaries across the board, and to reduce class size…and for professional development.66 Controlled by the school-site councils, there is little evidence that school bonuses were regarded as a tool to reward individual initiative or excellence. For example, Eastern High School in Jefferson County, which received $106,000 in rewards in 2002, spent the money on bonuses for all staff, including lunch and office workers. Principal James Sexton said, “Everybody shared it. Everyone contributed to the atmosphere and the climate that led to students feeling good about taking CATS.”67 In 2003, the legislature funding for the $21 million bonus pool for high-achieving schools. The only other sizable cut was the decision to delay a $22 million math text book order for a year.68 In 2004, after draining the last $7 million dollars out of the fund that rewarded schools for high performance in order to help reduce the state’s benefit, the governor moved successfully to eliminate completely the funding for the bonuses. The cuts were little lamented. The governor’s budget director said, “[The rewards program] was not considered a high enough level of priority by the governor to justify a separate expense.” The state education secretary Virginia Fox said, “At this point in time, in tight budget times, I’m more focused on driving money to the classroom for all schools than on rewards for a few.”69 In a development that is significant in light of Kentucky’s import for the adequacy movement, a new suit argued that Court intervention was again necessary. The Council for Better Education sued, with the support of the Prichard Committee, citing concerns that the state no longer viewed education and the provisions of KERA as a priority. Robert Sexton, president of the Prichard Committee, said, “We’ve already taken a step backward. We’re starting to gradually chip away at a much-improved system…It’s happening piece by piece – little step by little step – chipping away at the schools and what they can offer the children.”70 Adequacy
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proponents pointed to the education budget cuts and the decrease in school funding from comprising 47% of the general Kentucky budget in 1990 to 43% in 2000.71 They also worried that the state was placing the burden of funding back onto districts; they criticized Democratic Governor Paul Patton for mandating a 2.7% pay increase in teacher salaries, but requiring that the districts fund it. Partisan politics may have influenced budget developments or the resumption of litigation. Between 1980 and 1999, Democrats had enjoyed unified control of Kentucky government. In 2000, Republicans had taken the Senate and, in 2004, Kentucky elected its first Republican governor in decades. The degree to which KERA had unraveled may be best captured by the fact that, in 2004, Republican state Senator Lindy Casebier sounded remarkably like legislators had sounded 15 years before, saying of the new litigation, “If there is a court decision, maybe that would provide the political cover that some of the legislators feel that they need.”72 The new law suits, still pending in summer 2005, claimed that the state was still not adequately funding schooling. Kentucky Education Association union members have rallied to support the new lawsuit, explaining “We have to have the funding in order to do the things we think are important. Kentucky is well known for the successes with KERA, and if they cut back, we will just be dead in the water.”73 The president of the KEA has gone further, proclaiming, “We think it’s time for a resending of the message that KERA was the most forward-thinking, progressive action that a state legislature has ever taken.”74 In many ways, Kentucky points to both the possibilities and the natural limits on adequacy suits. Faced with a constituency for reform that included leading figures from the political and business community, the court decision provided elected officials with the cover to make decisions that they would have otherwise deemed politically untenable. When it came to
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enabling legislators to initially raise taxes and alter governance, Rose was an important spark. When it came to thornier questions of making disruptive reforms stick or continuing to boost spending, however, the outcome was another matter. New Jersey: “This Ridiculous Dance” New Jersey’s experience with finance litigation began with an equity suit in 1970. At that time, few observers could have predicted that the litigation would eventually prompt the ousting of a popular governor, a shift in partisan control of the legislature, and an alliance of convenience between the state teachers union and the Republican Party.75 In 1973, in one of the early equity decisions, the New Jersey Supreme Court ruled that the spending gap between districts violated the state constitutional clause requiring the state to provide a “thorough and efficient” system of education. In response, Democratic Governor Brendan Byrne proposed a package of remedies, only to see it voted down by the Democratic legislature. Legislators rejected a revision of the funding formula and a new state income tax, which would have been partially offset by reductions in local property taxes.76 Byrne responded by joining the plaintiffs in appealing to the courts for assistance. The Supreme Court issued a new mandate in 1975, that prompted the legislature to grudgingly enact the Public School Education Act later that same year. The so-called “T&E” law (named for the “thorough and efficient” clause in the state constitution) introduced the state’s first income tax as part of a new funding system. While the legislature had complied with the Court’s dictate by passing the T&E law, the legislators then changed course and scuttled the bill by refusing to appropriate funds for implementation. The Court responded in 1976 with some hardball of its own, enjoining spending for all New Jersey schools until the legislature complied with the new Act.77 The legislature relented, financing the new law with a 2 percent state income tax.
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The Education Law Center (ELC), a non-profit education advocacy organization founded in 1973 by Paul Tractenberg, a young Rutgers law professor, has been a key force in driving New Jersey’s school finance litigation. The ELC was never satisfied with the outcome of the Robinson line of equity litigation in the 1970s. Even if the T&E remedy was funded in accord with plaintiff demands, the ELC insisted it did not go far enough to address the inequities in the education finance system.78 Representing children from some of the state’s poorest districts, with a plaintiff class of over 300,000 school-age children, the ELC opted in 1981 to challenge the state educational system again on constitutional grounds. It filed suit in the name of Raymond Abbott, a Camden seventh grader. The thirty districts that the ELC represented— including Newark, Jersey City, Trenton, and Camden—would be officially designated the Abbott districts.79 In 1990, in Abbott II, the Court issued its first mandates. It directed the state to ensure that per-pupil expenditures were “substantially equivalent” and required not just equal funding but enough money to meet the special needs of the Abbott districts. The adequacy emphasis “focused on the provision of a mandated minimum of educational opportunity, not equality per se.”80 The Abbott II ruling defined Abbott districts using the Department of Education classification: “urban; with the lowest socio-economic status on the…Factor Group scale; with ‘evidence of substantive failure of thorough and efficient education.’”81 Democratic governor Jim Florio responded by proposing a bold—in retrospect, perhaps reckless—reform package called the Quality Education Act (QEA). Florio called for a major overhaul and expansion of the New Jersey education funding system, providing new aid totaling $1.15 billion to over half of the state’s school districts. Instead of a guaranteed tax base formula to fund schools, QEA provided a basic foundation aid level of $6,835 per pupil, with gaps in
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funding filled by state revenue. Newly defined “special needs” districts would receive additional funds.82 The Democratic legislature passed the bill before the end of the same month, even in the face of vocal opposition from the New Jersey Education Association (NJEA). While Florio attempted to frame the QEA as leveling the playing field and bringing property tax relief, the public was preoccupied with the spending boost and a tax increase of nearly $1.3 billion in the midst of a recession.83 While Florio had been elected governor in a landslide the previous year, more than two-thirds of the electorate now disapproved of his fiscal policies.84 A conservative talk radio host and a tax-mad caller orchestrated a 6,000-strong anti-tax, Florio-recall protest at the state capitol.85 Moreover, the taxes were not the only source of public unrest with the bill. Several provisions soon ensured the bill’s demise and combined to sink the previously popular Florio administration.86 The most politically perilous provision in Florio’s legislation was shifting teacher pension fund and social security costs from the state to the school district. Previously, school districts negotiated teacher salary and retirement benefits with the union, but the state picked up the tab for funding pensions and social security taxes. This burdened the state but was hugely popular with the teachers unions because it gave districts cause to be generous with retirement benefits. Of course, the state ended up subsidizing the wealthy districts that could pay higher teacher salaries. The measure provoked a furious response from the powerful NJEA, which feared the reform would put downward pressure on teacher compensation. The NJEA was the largest political donor in the state, a loyal member of the Democratic coalition, and an influential organization with a team of lobbyists and a web of local offices.87 Florio’s administration lashed out at the union critics and declared it would not bow to special interests, pointing out that current policy subsidized the wealthy and encouraged undisciplined negotiating. A staff member explained, “The battle with the union was really about how beholden the
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Governor and the Democratic Party would be to the union.”88 Betty Kraemer, the president of the NJEA said she “never thought I'd be in bed with the Republicans,” but vowed to fight the governor and Democratic legislators who supported him in their bids for reelection.89 The case for the bill was substantially weakened by the quiet opposition of some poor city districts, which would be required to take on pensions and social security and also to raise local taxes to comply with minimum district funding levels under QEA. Meanwhile, opposition among wealthier districts emerged because not only were they faced with losing the state retirement subsidy but also with cuts in state aid and the consequent need to raise local taxes. The political pushback prompted the legislature to dramatically revise the QEA bill, stripping out the controversial provisions and then passing QEA II in March 1991. QEA II boosted state school spending by $750 million, targeting the new spending on the Abbott districts while holding other districts harmless. The one fiscally responsible piece of the original QEA— the effort to shift teacher pensions to districts—was reversed. The backtracking by incumbents, however, was too little, too late. In an election driven by anti-tax sentiment, Republicans swept to a veto-proof majority in the previously Democratic legislature. Three years later Florio was voted out in favor of anti-tax Republican Christine Todd Whitman. Whitman promised to cut taxes, hold the line on spending, and focus on educational discipline, accountability, and standards. In 1994, the ELC again filed suit, alleging the continued absence of an adequate education in Abbott districts. The Court ruled QEA II unconstitutional in Abbott III because it failed to provide supplemental programs or adequate funding for Abbott districts. The Republican legislature responded in 1996 by enacting the Comprehensive Educational Improvement and Financing Act (CEIFA), which sought to shift
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“the focus of school finance reform from inputs to outputs.”90 This was not what the plaintiffs or the courts had in mind. The Whitman administration opted to define a “thorough and efficient” education in terms of educational standards that included core-curriculum content standards and used these to derive relatively low-cost estimates for adequacy in a “model school”. The basic education cost for the core curriculum was determined by the Department of Education in May 1996 to be $8,285 per pupil, which was $132 less than the state average. That figure implied increased aid for 381 districts, reduced aid for 146, and level funding for 86.91 The ELC charged that the proposal didn’t do enough for Abbott districts, while the NJEA worried about downward pressure on teacher salaries. A scholarly observer noted that irate “school districts and educational interest groups quickly went to work blasting particular components of the plan,” forcing changes that “inflated the total cost of the plan.”92 The ELC again filed suit, arguing that CEIFA did not provide adequate funding or programs for Abbott districts. In response, the Court issued Abbott IV in 1997. The new ruling declared CEIFA unconstitutional, but with a twist. This time, the Court remanded the case to New Jersey Superior Court, where Judge Michael Patrick King held hearings with education experts to determine what specific programs were required to bring the Abbott district schools to adequacy and how much the programs would cost. These decisions formed the basis for the Abbott V ruling, which specified new programs in four areas—early education, curricula, supplemental programs, and facilities. Writing in the Yale Law & Policy Review, Alexandra Grief noted that “the Abbott V mandate successfully increased state funding for Abbott preschool programs…and resulted in facilities legislation more ambitious than any of its kind elsewhere in the country.”93 Abbott V was re-litigated in Abbott VI in 2000, VII in 2000, VIII in 2001, and X
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in 2003. All of these rulings concerned the funding of preschool and school facilities, with questions of fiscal and educational accountability largely unaddressed. (Abbott IX in 2002 gave the state a one-year respite on further implementation of Abbott remedies.) By 2002-03, $3,000 more per pupil was being spent in Abbott district schools than in wealthy districts—$13,249 compared to $10,263.94 The state average per-pupil spending of $10,291 was the third highest in the nation, almost $3,000 above the national average.95 One consequence of the mandate for adequate school facilities, in particular, has been troubling and expensive management problems. An investigation of the Schools Construction Corp. (SCC) by the state Inspector General—prompted by news reports of corruption and fraud—found “pervasive waste and mismanagement in the school construction program” and possibly illegal activity.96 SCC schools were found by a Star-Ledger report to cost an average of 45% more than non-SCC schools, while construction and school-opening delays have caused problems across the state.97 In September 2005, the former Paterson school facilities manager was charged with receiving construction kickbacks totaling more than $78,000, and this was only the latest in a long list of scandals.98 In 2005, in fact, New Jersey’s Democratic U.S. Senator Jon Corzine declared “the cost overruns and mismanagement of the school construction program has been a disgrace.”99 Adequacy proponents have claimed that the new spending and programs have produced some success in preschool provision and in whole-school reforms when led by skilled school leaders.100 Abbott champions have pointed to rising reading scores in Abbott districts as an accomplishment, though the district gains have largely reflected increases observed statewide after the test was overhauled in response to complaints about low rates of proficiency.101 Meanwhile, despite the expensive emphasis on the Abbott districts, New Jersey continued to lag
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far behind other states in closing the achievement gap between white and black students. On the 2003 NAEP, New Jersey’s math achievement gap ranked fourth from the bottom in the fourth grade and fifth from the bottom in the eighth grade. Even in reading, held up by proponents as evidence of their success, the state’s gap remained mired fourth from the bottom in the fourth grade and fifth from the bottom in the eighth grade.102 Supporters of the litigation have blamed admittedly modest outcome gains on the intransigence of the legislature, the resistance of the wealthy suburbs, and the resultant difficulties implementing the Court’s rulings.103 One question worth asking is whether the rulings have focused attention on school improvement or distracted from a focus on substantive reform. I examined the newspaper coverage for the year of the most controversial ruling (for which the archives could be searched) and for the most recent calendar year to determine what topics newspapers emphasized when covering Abbott. A Lexis-Nexis search identified 27 stories from New Jersey newspapers that mentioned “New Jersey”, “Abbott and Burke”, and “schools” in 1998, the year that Abbott V— the most comprehensive of the Court’s decisions—was handed down. Of those stories, 25 mentioned “funding”, ten mentioned “preschool”, and eight mentioned “facilities”, while just one mentioned “accountability” and none mentioned “teacher quality.” In 2004, the same search located 68 stories. Of those, 48 mentioned “funding”, 26 mentioned “preschool”, and 17 mentioned “facilities”, while just five mentioned “accountability” and none mentioned “teacher quality.” This preliminary look suggests that news coverage focused primarily on inputs.104 Some supporters of the litigation have suggested that they feel like they are on a treadmill. “Every year we have this ridiculous dance with the governor, the legislature, the department, and us and the courts,” said David G. Sciarra, executive director of ELC, “and we always end up in the same place.”105 Perhaps the best summary of New Jersey comes from a
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sympathetic scholar of school finance litigation, Georgetown University professor Douglas Reed, who has noted, “The progression from the lofty rhetoric of Abbott II to the detailed policy prescriptions of Abbott V highlights the inability of the courts to do more than pump more money through the existing institutional framework of educational governance.”106 Maryland: One-Wing Airplanes Don’t Fly When the first Baltimore adequacy lawsuit was filed in 1994, the city had been wrestling with educational reform for more than a decade. Baltimore is a poor, heavily black city in a predominantly white state. In 2000, 23% of Baltimore residents lived below the poverty line in a city that was 64% black.107 In 1994, just 9% of Baltimore City third-graders scored at a satisfactory level on the Maryland State Performance Assessment reading exam; by eighth grade, the percentage scoring satisfactorily was down to 6%. In comparison, about one-third of Maryland third-graders and one-quarter of Maryland eight-graders were performing satisfactorily. Math scores in Baltimore were equally abysmal, with 12% of third-graders and 9% of eighth-graders scoring satisfactorily, as compared to state averages of 34% and 40%.108 Maryland and Baltimore state officials had long regarded the Baltimore school system as in dire need of reform. In 1978, Baltimore had joined several rural districts to file an equity suit against the State Board of Education (Hornbeck v. Somerset County Board of Education). The case sought to address statewide funding inequities statewide. The plaintiffs won the initial suit but ultimately had their victory overturned in the Court of Appeals. In the early 1990s, the effort to reform Baltimore schooling took wing when Democratic Delegate Howard Rawlings of Baltimore, the intimidating chairman of the House Appropriations Committee, pressed the district to reorganize its notoriously ineffective management. The Department of Education, together with an alliance of nonprofits, hired an independent
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management consultant firm to craft a management reform proposal. The proposal included measures to delegate budgeting and resource management to individual schools and to increase the authority of principals. Baltimore superintendent Walter Amprey rejected the suggested reforms, describing them as unduly harsh. Rawlings responded by using his Appropriations post to ultimately withhold $5.9 million in state funds that had been earmarked for school administrative benefits and salaries.109 Attempts at education reform repeatedly foundered on tensions between majority-black Baltimore and the state legislature. Partisan politics, on the other hand, were little in evidence, as Democratic Baltimore was a bastion of the state’s dominant Democratic Party. In 1994, the American Civil Liberties Union (ACLU) filed Maryland’s first adequacy lawsuit (Bradford v. Maryland State Board of Education) on behalf of a ‘class at-risk students in Baltimore.’ The ACLU chose to focus on “adequacy” because, in the words of Alan Baron, who represented the plaintiffs, “This suit is about how well Baltimore City students are doing.” He explained, “This isn’t a replay of the [the earlier equity suit]. That suit was about input. This suit is about output. Good education is more than a question of money.”110 The ACLU also hoped that its independent role would allow it to be uncompromising in its litigation. Baron elaborated, “The city, as a political entity, has considerations in its relations with other political jurisdictions that we don’t have. One of our luxuries is that we don’t have to worry about politics.”111 The executive director of the Maryland ACLU explained, “The advantage of doing it independently is that we did not have to depend on the political winds that were blowing at any given moment.”112 Baltimore City opted to follow the ACLU’s lead and file its own suit nine months later. Baltimore’s mayor, Kurt Schmoke, explained that Baltimore’s dependence on state largesse
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meant it typically had to respond to “multiple constituencies, each of which had its own power base over our budget” but that litigation would allow the city to skirt the political pressures stymieing reform.113 The ACLU’s and the city’s cases were ultimately combined. In answering the litigation, the state claimed that city mismanagement was responsible for mediocre performance and the absence of meaningful reform, and that this ought to be addressed before discussing new dollars. Ultimately Baltimore ended up with a remedy that included new funding and some management reform, as the ACLU, city, and state reached a settlement just before the case went to court. The settlement, the 1996 Consent Decree, determined that the state’s funding system was inadequate and that it was the state’s responsibility to maintain a “thorough and efficient education system.” Maryland would provide the city with an additional general funding of $230 million over five years ($30 million the first year and $50 million for each of the next four years). At that time, Baltimore City’s total expenditures on public schools amounted to just under $640 million per year, and Baltimore City was spending about $5,500 per student.114 The Decree also determined that the plaintiffs would be able to return to seek additional funding in 1999 should it be necessary and that the state would commit to making its “best efforts” to satisfy the funding request. Meanwhile, the judge required the city to submit a ‘master plan’ for management reforms and stipulated that the reforms would be evaluated in the future in public progress reports. The city’s school governance system was also to be completely overhauled, replacing the old school board—which had been appointed by the mayor—with a new board selected jointly by the Mayor and Governor. The board would be selected from lists of candidates submitted by the State Board of Education, include members apportioned among various interests (i.e. one parent,
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one student, multiple school administrators, etc.), and would only be composed of Baltimore citizens. The consent decree also abolished the position of superintendent; instead a triumvirate—a Chief Executive Officer, a Chief Financial Officer, and a Chief Academic Officer—reported to the board. Finally, the consent decree established a fourteen-member Parent and Community Advisory Board, which would be composed from various identified categories of constituencies and appointed by the CEO. While these governance changes were hailed as proof of dramatic change, what they actually meant for district management or governance was entirely unclear. The legislative process authorizing the settlement highlighted stark political divisions and it took until the end of 1997 to finally enact the compromise.115 The House Speaker, Casper Taylor Jr., termed the settlement “the most divisive, most polarizing issue that this House of Delegates will face.”116 The bill’s leading opponents were the legislators who represented counties outside of Baltimore—particularly Montgomery and Prince George—and thought their districts also deserved funding for at-risk students.117 Maryland’s largest teachers union, the Maryland State Teachers Association, a major supporter of Democratic Governor Glendening during his 1994 campaign, made clear its desire for new spending and class size reduction and its hostility to school accountability based on student performance on achievement tests.118 Leading Baltimoreans also opposed the settlement, claiming that it traded too much autonomy for too little funding. A letter of protest, signed by representatives of the Maryland Parent Teacher Association and National Association for the Advancement of Colored People, others, was sent to the General Assembly. It read, “We will not accept Baltimore becoming a colony of the State, with its citizens having no say in the education of their children. House Bill 312 and Senate Bill 795 are anti-democratic and smack of racist paternalism.”119 The legislation,
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Senate Bill 795, finally passed, but only after an additional $32 million (dispersed among all counties each year Baltimore City received added funds) was included for schools in districts outside Baltimore.120 Robert Schiller, the man serving as Baltimore’s interim CEO, had a reputation for toughminded management and many looked to him to use the window afforded by the legislation to clean house. Furthermore, because the settlement stipulated that Schiller was ineligible to serve as permanent CEO, he appeared to enjoy the freedom to resist political pressure. However, Schiller’s big reforms proved to be surprisingly mild. He tweaked teacher evaluation so that it would begin to include measures of student achievement, reduced class size, created new after school programs for at-risk students, and hired more than 1000 new teachers.121 Skeptics noted that only the decision to tweak teacher evaluation actually challenged the status quo; the rest of the measures simply involved new spending and new programs. In 1999, the Board of School Commissioners returned to the state to request more funds. The city claimed that it was implementing the reforms and was still not receiving adequate funding. The state rejected the request, saying Baltimore needed more time to install the reforms before requesting additional money, so the city and the ACLU returned to court. The judge ruled for the plaintiffs. The state appealed. Martin O’Malley, the then-newly elected Democratic mayor of Baltimore, proposed that the city and state settle at a significantly lower figure than the suit demanded (the judge had ruled that the state should provide Baltimore with an added $267 annually, whereas O’Malley and the state agreed on a $55 million settlement.) The ACLU, however, was unwilling to settle. Ultimately, the ACLU’s willingness to fight on prompted the state to drop its appeal, leading the state to provide both the agreed-upon $55 million and leaving it on the hook for the full $267 million.122
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In 1999, the governor and the General Assembly established a body, the Thornton Commission, charged with reviewing state funding and “ensuring adequacy of funding for students in public schools.” In January 2000, the Commission issued its preliminary findings showing that although the state had substantially increased its aid to schools (with state education aid increases averaging about 4.4% a year) a gap of nearly $2,500 between per pupil spending in the wealthiest and poorest districts remained. In its final 2002 report, the Commission concluded that “more funding is needed for the general student population and for students with special needs” and specifically, on a per-pupil basis, that “more new funding is needed for special populations than is needed for the general student population.” In summary, it proposed a new model that called for “an increase in funding of about $1.1 billion by fiscal 2007.”123 Instrumental to this debate was a broad public coalition organized largely by the ACLU (the Coalition to Support the Thornton Commission) that endorsed the Commission’s decision. The coalition included such advocacy groups as the Maryland Parent Teacher Association, the Maryland Caucus of Black School Board Members, the Advocates for Children and Youth, and the New Baltimore City Board of School Commissioners. In 2002, the Commission’s plan to increase funding was finally passed—but only after including a provision that granted Montgomery County $80 million in additional funding. Chris Maher, Education Director of the Advocates for Children and Youth, described the vote, “It was an absolute pure political buyout…We could give Montgomery their money and give everyone else in the state a lot more money, or we could trash it all. The choice was pretty clear.”124 The adequacy proponents were successful in securing additional funding for Baltimore. Between 1998 and 2003, Baltimore per pupil spending rose substantially—from below the state average ($6,964) to above the state average ($9,639) by nearly $500 per student.125 The
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adequacy fight, however, was never just about money; proponents argued from the beginning that their ambitions included structural change. The case that the governance shuffle yielded meaningful management reform in Baltimore is harder to make. In November 2003, the Baltimore City public schools frantically laid off 710 personnel when the leadership realized that the district faced bankruptcy due to a multi-year $52 million deficit if it didn’t chop $24 million in spending by the end of the school year. Even as she announced the layoffs, Chief Executive Officer Bonnie Copeland reported that she was still uncertain how much the system owed in unpaid bills and pleaded with staff to turn in invoices that might amount to $13 million or more. The hurried were concentrated in the central office, which the district had failed to trim in a more disciplined fashion even as its enrollment shrunk steadily during the 1990s. By 2001-02, Baltimore City had 581 central staff for 94,000 students, while larger Maryland systems, including Baltimore County and Prince George’s County, needed less than 300 central staff for more than 100,000 students. Reducing the size of central administration to a comparable level would have saved Baltimore City roughly $15 million a year.126 In spring 2004, the governor and mayor clashed over news that the Baltimore deficit now amounted to $58 million—or more than 6% of its $914 million budget. At the time, the district had already fired more than 1,000 employees in attempting to solve the shortfalls that became evident in fall 2003. When the governor insisted on more state control of the district’s finance as a condition for a state loan to bail out the district, Baltimore Mayor O’Malley decided that the city would rather provide the loan on its own. Ultimately, there was limited evidence that even this frenzied round of activity led to substantive change. In July 2005, a federal judge overseeing a 21-year-old special education lawsuit found that district efforts to improve services had
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resulted in “massive failure” and handed control over special education to the state Department of Education.127 Critics were unsurprised by the continued problems and blamed them on a failure to fix district management. Delegate Barrie Ciliberti, a Republican from suburban Montgomery County, had earlier said of the Thornton effort that increasing funding for a mismanaged system “[is] like putting millions of dollars into a one-wing airplane. One-wing airplanes don’t fly. It’s just good money after bad.”128 Seven years later, amidst the fiscal crunch, Baltimore’s finance director said that the district’s approach to management invited the crisis, observing, “If you say it is OK to be in deficit, it is not a leap to say it is OK to be a little bit more in deficit.”129 At various times, defenders of the Baltimore schools dismissed the problems in various ways. Back in 1995, Baltimore Associate Solicitor Frank Derr argued, “Certainly the city administration and the educational administration have not been thoroughly deficient as the state is alleging. We could do much more, much more quickly, if we had the resources.”130 Nine years later, Jay Gillen, a lead teacher in Baltimore, similarly explained, “Underfunding of this magnitude necessarily leads to poor management…The deficit grew principally not from mismanagement but from the emergencies that arise every day in a city desperately poor.”131 Trying to assess the outcome of adequacy suits in Maryland is a complex task. Funding in Baltimore increased but the results of that spending are murky. Adequacy proponents reform point to the specific initiatives in Baltimore that sought to attract high-quality principals and teachers and to improve elementary school education. The money reduced class size in early grades, expanded pre-kindergarten programs, purchased new textbooks, funded a uniform reading curriculum, and raised teachers’ salaries.132 However, continued managerial difficulties and poor school performance raised doubts about the import of these reforms.
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From the beginning, adequacy proponents claimed that they were focusing on outcomes. The scores on standardized test, the Maryland School Performance Assessment Program (MSPAP), which tested students in grades three, five, and eight during 1997-2002, evinced, at best, a very modest improvement in the performance of Baltimore’s students. For third graders, the percentage of students scoring satisfactory in reading inched from about 12% in 1996-97 to about 13% in 2001-02. Over the same period, the percentage scoring satisfactory in math crept from about 11% to about 13%. The percentage of fifth graders students scoring satisfactory in reading climbing from 14% to 18% and in math from 14% to 19%; at the eighth grade level the percentage slipped from 12% to 11% in reading and rose from 11% to 14% in math.133 (The year 2001-2002 represents the last year that MSPAP was used before Maryland adopted a new standardized test system more attuned to the federal No Child Left Behind Act.) Ohio: Why Don’t the Attorneys Run for Office? Ohio’s experience makes clear the critical role of elected officials in breathing life into adequacy judgments by illustrating how readily legislatures can resolutely refuse to respond to court mandates. In four separate rulings over more than a decade, the Ohio Supreme Court ruled that the legislature was failing its constitutional duty to provide a “thorough and efficient system of common schools throughout the state.” Yet, none of the rulings prompted the state’s elected officials to raise taxes and enact the measures endorsed by the Court. The first Ohio adequacy lawsuit, DeRolph v. The State of Ohio, was filed in 1991 by the Ohio Coalition for Equity and Adequacy in School Funding (E&A Coalition), a group representing 553 of the state’s 611 districts, about 90% of the state’s schools. The first ruling in the case was issued by a Common Pleas Court judge in 1994 and found for the plaintiffs. The state appealed and lost in 1995, pushing the case to the state Supreme Court. In 1997, the Court
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upheld the lower court judgment in a 4-3 decision and ruled the education funding system unconstitutional. It struck down the system’s reliance on property taxes and ordered the state to narrow spending disparities between rich and poor districts (per-pupil expenditures ranged from $4,000 in the lowest-spending districts to $12,000 in the highest-spending).134 Republican Governor George Voinovich and the Republican legislature responded halfheartedly. Voinovich used a $280 million budget windfall that resulted from a national tobacco settlement to fund capital improvements in outdated schools, slightly increase per pupil funding, and establish a modest testing and accountability system. Observers regarded these measures as primarily symbolic. One analyst declared in a Columbus Dispatch editorial that the state’s efforts after the DeRolph I ruling consisted of “duct tape and a little wire.”135 Whereas delays in New Jersey were met with a harsh judicial response, the Ohio Supreme Court moved much more cautiously. In the heavily Republican state, Ohio Supreme Court Justices are elected to six-year terms. Republican Party leaders made clear their displeasure with the Court’s verdict and its efforts to influence legislative decisions. A member of the plaintiff coalition recalled that in March 1997, Governor Voinovich, Ohio Senate president Richard Finan, and Ohio House speaker JoAnn Davidson “set the stage for resistance to the court order by their vitriolic antagonism directed toward the court and its decision.”136 Republican chairman of the Senate Finance Committee Roy Ray fumed, “I always appreciate it when attorneys try to tell us what to do. Why don’t they run for office?” Republican Representative Michael Wise said, “There’s no other way to raise revenue besides increasing taxes, and I have a real problem with the Supreme Court putting a gun to the head of the General Assembly and saying, ‘Raise taxes or else.’ That's completely inappropriate.”137 The justices who had voted with the majority were subjected to “extreme political pressure.”138
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Starting in 1998, Republican and anti-tax organizations began a coordinated effort to unseat them and thereby reverse the one-vote Court majority.139 The Akron Beacon Journal, in a 1997 news series and PBS, in 1996 a documentary,140 had focused attention on educational inequity in Ohio. After the Court ruling, however, the weight of editorial page opinion inveighed against judicial overreach. The Toledo Blade branded the majority justices as the “gang of four,” language echoed by the Columbus Dispatch and The Cleveland Plain Dealer.141 The Columbus Dispatch termed one case as “one of the most poorlyreasoned, overreaching decisions to emanate from the high court in a long time…It displays a cool dismissal of original intent, separation of powers, prior court decisions, and nearly 200 years of educational progress in Ohio…this is both a tragedy and travesty.”142 With the editorial pages of the major papers in their corner, public resistance to tax increases, a politically vulnerable Supreme Court, and the one-vote DeRolph majority, legislators felt little pressure to act. As part of the DeRolph I ruling, the lower court judge who initially heard the case was charged with reevaluating the state’s funding mechanism in twelve months. When he maintained that the revised system was still unconstitutional and that the legislature needed to address structural deficiencies, the Supreme Court handed down DeRolph II in 2000, giving the General Assembly another year. This decision distinguished between simply providing more money and providing it in a way that would aid students.143 The legislature’s response was again minimal; it adjusted the funding mechanism to include a “parity aid” formula in an attempt to close the gap between property-rich and property-poor districts. In 2001, the Court issued its third ruling, DeRolph III, which found the newly-created funding system constitutional—so long as the amount of money appropriated to the system was increased. Estimates of the actual cost of implementing the decision varied widely. When
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statements by Supreme Court Justice Andy Douglas and E&A Coalition Executive Director William Phillis estimated that compliance would cost anywhere between $750 million and $1.2 billion annually, the response from the elective branches was a stern proclamation that they had no money and no intention of complying with the court’s decision.144 Meanwhile, elected officials squabbled over whose duty it was to act. Media coverage looked to Governor Robert Taft to lead, Taft asserted that the legislature had an equal role in the budgeting process, and Democratic legislators put the onus on the Republicans.145 In late 2001, in an attempt to finally resolve the funding dilemma, the Court ordered the parties to a settlement conference with a court-appointed special commissioner, Howard Bellman. The case was expected to be resolved by spring 2002. In March, the talks were halted for lack of progress, and Bellman sent his resignation and a report to the Court that no resolution had been accomplished. In December 2002, the Court followed the failed special commission and three consecutive 4-3 court rulings with a final 4-3 ruling in DeRolph IV. The Court again ruled the state education finance system unconstitutional, upheld the previous rulings in I and II, and refused jurisdiction over subsequent appeals regarding enforcement and implementation. By 2003, the Court’s 5-2 Republican majority was regarded as skeptical of the plaintiffs’ arguments and preferred remedies. One scholar concluded simply, that the adequacy victories had been effectively overturned by “the political realities of Ohio,” because “political power throughout state government has resided in the hands of one party that has not exhibited the political will or desire to provide for the complete systematic overhaul mandated in DeRolph.”146 The 2002 DeRolph IV ruling, in which the Court offered a final critique of the legislature for failing to focus on a complete overhaul of the funding system, effectively ended the Court’s involvement in the case. The Court recognized the practical difficulty of carrying out these
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rulings, but still called on the legislature to act. As Justice Paul E. Pfeifer wrote in the decision, “We are not unmindful of the difficulties facing the state, but those difficulties do not trump the Constitution…We realize that the General Assembly cannot spend money it does not have. Nevertheless, we reiterate that the constitutional mandate must be met. The Constitution protects us whether the state is flush or destitute.”147 Anticipating a recession-related state budget deficit and seeking to minimize painful spending cuts, Governor Taft proposed a tax increase in spring 2003 only to be rebuffed by the General Assembly. Taft also announced the creation of a blue-ribbon committee to study how schools should be funded. The E&A Coalition responded by filing a petition to return the case to the Common Pleas Court to oversee the development of the new constitutional funding mechanism. The Supreme Court responded by entertaining a final motion for reconsideration of its ruling. In May 2003, it rejected further involvement, explaining, “The duty now lies with the General Assembly to remedy an educational system that has been found by the majority in DeRolph IV to still be unconstitutional.”148 Public opinion polls suggest that the Ohio public knew little about DeRolph rulings even after years of litigation. In September 2001, a statewide poll found that of 505 Ohioans surveyed, 70% said that they had not heard of the 10-year-old lawsuit. More than half inaccurately believed that state funding for schools had not increased in 5 years, while an additional $2 billion had been appropriated since 1997.149 In 2002, when asked whether, “Ohio’s Supreme Court is deciding a lawsuit that could find Ohio’s system of school funding to be unconstitutional,” 50% of respondents said it was, 35% said that it was not, and 15% didn’t know.150 Even after a decade of litigation, and despite the belief of most Ohioans that state aid for schooling had been static for five years, pollsters found that just 15% of respondents
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answered “lack of funding” when asked, “From your perspective, what is the most important obstacle to increasing the quality of education in your local high school?”151 As in the case of New Jersey, I examined the newspaper coverage for the year of the most controversial Court ruling (for which the archives could be searched) and for the most recent calendar year to determine what topics newspapers emphasized when covering DeRolph. A search of Lexis-Nexis identified 63 stories in Ohio newspapers that mentioned “Ohio”, “DeRolph”, and “schools” during 2000, the year that DeRolph II was handed down. Of those stories, 62 mentioned “funding”, 11 mentioned “facilities”, and one mentioned “preschool”, while 15 mentioned “accountability” and none mentioned “teacher quality.” In 2004, the same search located 13 stories. Of those, 12 mentioned funding and two mentioned “facilities”, while none mentioned “accountability” or “teacher quality.” While suggesting slightly less attention to “preschool” and more to “accountability” than in New Jersey, the results again suggest that coverage focused upon inputs. Taft’s Blue Ribbon Task Force on Funding School Success recommended a constitutional amendment specifically addressing adequate funding, prompting school spending proponents to launch signature campaigns and ballot initiatives. One prominent proposal, crafted by a former state representative and designed to cut property taxes by shifting costs to the state, drew sharp opposition and failed to acquire the 320,000 signatures required for a place on the November 2005 ballot. Nonetheless, other groups, including the Ohio Mayors Education Roundtable, are continuing to consider alternative measures.152
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A Quick Look at the Numbers For all the activity they depict, the case studies suggest that the bulk of reform took the shape of new spending and new programs—rather than radical alterations to existing routines. Gaining a fuller sense of the significance of these adequacy victories in New Jersey and Kentucky, the settlement in Maryland, and the stand-off in Ohio, therefore, may be easier if we consider what the victories meant for spending, teacher salaries, class sizes, and student achievement. Given that states have not reformed in a vacuum but amidst a national environment in which spending has grown and performance has moved, it will be most useful to compare state changes to the relevant national norm. Given that the adequacy movement has sought not primarily to spread resources more evenly but to “level everyone up,” it will be more useful to consider statewide figures rather than intrastate comparisons. So, how much have the adequacy suits boosted overall state spending? In 1985, when the Rose v. Council suit was first filed, Kentucky’s per pupil spending equaled 64% of the national average. By 1993, three years after KERA, that was up to 85%—before beginning a slight decline. By 2002, the figure stood at 83% (see Table 1). New Jersey spent 148% of the national average per pupil in 1985, a figure that grew modestly to 156% by 2002. In Maryland, where the adequacy effort targeted only Baltimore, per pupil spending remained relatively stable; it was 113% of the national average in 1985 and 114% in 2002. Finally, in Ohio, where the legislature balked at the DeRolph ruling, spending nonetheless increased from 94% of the national average in 1985 to 107% in 2002. In other words, spending growth in Ohio outpaced that in both Maryland and New Jersey. The spending figures from these four states raise questions about whether adequacy victories led to clear changes in aggregate spending.
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Table 1: Per Pupil Spending (unadjusted dollars) 1969-70 1979-80 1985-86 1989-90 1993-94 1997-98 2000-01 2002-03
UNITED STATES $751 $2,088 $3,479 $4,643 $5,327 $6,189 $7,376 $8,041
KENTUCKY $502 $1,557 $2,229 $3,384 $4,505 $5,213 $6,079 $6,661
MARYLAND $809 $2,293 $3,923 $5,573 $6,191 $7,034 $8,256 $9,153
NEW JERSEY $924 $2,825 $5,139 $7,546 $9,075 $9,643 $11,248 $12,568
OHIO $677 $1,894 $3,265 $4,531 $5,319 $6,198 $7,571 $8,632
U.S. Department of Education, National Center for Education Statistics153
Employee compensation consumes about 80% of education spending, and a key rationale for many adequacy suits has been the need to boost teacher pay. How big an impact did adequacy litigation have on teacher salaries? In 1987, Kentucky paid teachers 87% of the national average (see Table 2). In 1992, two years after KERA, that figure was 89%. It slipped to 88% in 1997 and to 85% by 2002. In Maryland, the figure was 110% in 1987 and remained largely unchanged, at 108%, in 2002. New Jersey’s pay grew rapidly during the late 1980s and early 1990s, rocketing from 110% of the national average in 1987 to 122% in 1992. Ironically, this period preceded the legislative package designed to comply with Abbott. After the Abbott reforms, pay actually stagnated, declining slightly, to 118% of the national average, in 2002. In Ohio, salaries remained flat through the 1990s, equaling 98% of the national average in 1987 and 99% in 2002. In none of the states do the data suggest that adequacy victories translated into higher teacher pay. Table 2: Annual Teacher Salary in Public Elementary and Secondary Schools (unadjusted dollars) 1972-73 1977-78 1982-83 1987-88 1992-93 1997-98 2002-03
UNITED STATES $10,174 $14,198 $20,695 $28,034 $35,030 $39,454 $45,822
KENTUCKY $7,796 $11,723 $18,385 $24,253 $31,115 $34,613 $38,981
MARYLAND $11,159 $15,810 $22,922 $30,933 $38,753 $41,739 $49,677
NEW JERSEY $11,739 $15,369 $21,536 $30,720 $42,680 $50,442 $54,166
U.S. Department of Education, National Center for Education Statistics154
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OHIO $9,628 $13,306 $20,004 $27,606 $34,519 $38,985 $45,452
One other input measure worth a cursory look is teacher-student ratios—a rough proxy for class size. This measure is instructive not only because it reflects a decision to hire more teachers but because it is one of the most popular school reforms available to policymakers. In 1998, the American Federation of Teachers observed, “There’s no more popular educational initiative across the country…than cutting class size.”155 In 2001, the NAACP urged lawmakers to “aggressively target class-size reductions for the highest minority and concentrated-poverty schools.”156 In Kentucky, class sizes were about 3% larger than the national average in 1987 (see Table 3). After KERA they shrunk slightly; in 1997, class sizes were about 2% smaller than the national average. But by 2002, a continued decline in national class size meant that Kentucky’s classes were again larger than the norm. Maryland’s classes were slightly smaller than the national average in 1987 and 1992, were larger than the national average by 1997, but were again slightly smaller by 2002. New Jersey’s classes were 20% smaller than the national average in 1987. In 2002, after a decade of Abbott litigation, New Jersey’s classes were 19% smaller. Finally, in Ohio, class sizes were slightly larger than the national average in 1987 but 8% smaller by 2002. There is no evidence that adequacy victories led to smaller classes in New Jersey, Kentucky, or Maryland. Surprisingly, class sizes declined more in Ohio than in the nation as a whole, even as the legislature resisted the state Supreme Court’s adequacy mandate.
Table 3: Pupil/Teacher Ratios in Public Elementary and Secondary Schools 1972-73 1977-78 1982-83 1987-88 1992-93 1997-98 2001-02 2002-03
UNITED STATES 21.7 19.7 18.6 17.6 17.4 16.8 15.9 15.9
KENTUCKY 22.7 21.2 20.2 18.2 17.3 16.5 16.2 16.3
MARYLAND 22.1 19.6 18.5 17.1 16.9 17.2 16.0 15.7
NEW JERSEY 19.0 17.6 15.8 14.0 13.6 13.9 12.9 12.8
U.S. Department of Education, National Center for Education Statistics157
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OHIO 23.4 20.7 19.8 18.0 16.9 16.7 15.0 14.7
In short, rather surprisingly, it appears that even successful adequacy efforts had a minimal impact on input measures like spending, teacher pay, and class size. Some scholars have suggested that those frustrated by the limited impact of school finance reform fail to grasp the political barriers to substantive change.158 The evidence from New Jersey and Kentucky, where the impact of ambitious court decisions on spending stalled out pretty rapidly or seemed modest in light of national trends, seems consistent with such analysis. Given that the input metrics appear to paint a picture of modest change, what does the achievement data show? Table 4: Student Achievement on NAEP: Percentage of Students at or Above Basic Reading 4th/8th graders at or above basic 1992 1994 1998 2002 2003
62% / 69% 60% / 70% 60% / 73% 64% / 75% 63% / 74%
58% / NA 56% / NA 62% / 74% 64% / 78% 64% / 78%
57% / NA 55% / NA 58% / 70% 62% / 73% 62% / 71%
69% / NA 65% / NA NA NA 70% / 79%
63% / NA NA NA 68% / 82% 69% / 78%
Math 4th/8th graders at or above basic 1992 1996 2000 2003
59% / 58% 63% / 61% 65% / 63% 77% / 68%
51% / 51% 60% / 56% 59% / 60% 72% / 65%
55% / 54% 59% / 57% 60% / 62% 73% / 67%
68% / 62% 68% / NA NA 80% / 72%
57% / 59% NA 73% / 73% 81% / 74%
UNITED STATES
KENTUCKY
MARYLAND
NEW JERSEY
OHIO
U.S. Department of Education, National Center for Education Statistics, National Assessment of Education Progress achievement scores.159
The only assessment of student learning routinely administered to national samples of public school students is the National Assessment of Educational Progress (NAEP). The NAEP reports student scores according to several thresholds. For our purposes, it may be simplest to simply ask what percentage of fourth and eighth grade students performed at “basic” or better on the NAEP reading and math assessments. Nationally, during 1992-2003, the percentage of fourth graders reading at “basic” or above edged up from 62% to 63% and of eighth graders doing so increased from 69% to 74% (see Table 4). The percentage of fourth graders scoring at
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least “basic” in math increased from 59% to 77% and the percentage of eighth graders doing so from 58% to 68%. How did the four states studied here compare to these national trends? Kentucky’s gains in fourth grade reading, fourth grade math, and eighth grade math all outstripped the national gains by between three and five percentage points—painting a picture of real, if modest, gains over the eleven year period. Maryland’s gains on the fourth grade reading and eighth grade math outdistanced national gains by four and three percentage points, respectively, while its gains on fourth grade math matched the national average. New Jersey matched national gains in fourth grade reading and eighth grade math while lagging fourth grade math gains by six points. Finally, Ohio registered the largest gains of any of the four states. In fourth grade reading, fourth grade math, and eighth grade reading its gains outpaced the national norms by five, six, and five percentage points. In short, the NAEP data suggest that the states studied here slightly outdistanced their peers between 1992 and 2003. However, given New Jersey’s mediocre performance and the oversized gains made by Ohio, the results don’t suggest any obvious relationships between the resolution of the adequacy cases, changes in state spending, or changes in student achievement.
Adequacy and School Reform Ultimately, the evidence suggests that states have consistently preferred accommodative measures to disruptive ones in the design and implementation of adequacy verdicts. Perhaps more surprising is the degree to which even input measures show limited statewide impact— despite the proclaimed goal of using adequacy as a mechanism for “leveling up.” The reality is that adequacy suits in New Jersey and Maryland primarily served to direct more resources to
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select urban districts, without much evidence that this yielded meaningful reform—and with some cause to wonder whether it may have weakened pressure for more substantive reform. Accommodative changes were widespread, with the courts and legislatures frequently favoring the addition of new, widely popular supplemental programs. In Kentucky, New Jersey, and Maryland, the rulings and legislative actions emphasized new preschool programs, professional development resources, services for at-risk students, and the construction of new facilities. For instance, in Maryland, the Thornton Commission recommended only one research-based programmatic mandate: full-day kindergarten for all students and pre-K for economically disadvantaged students.160 Meanwhile, the record of potentially more disruptive structural reforms is one of largely ineffectual or symbolic steps. Kentucky’s system of bonuses was permitted to atrophy, and it terminated not a single teacher or principal under the heralded system of accountability sanctions; New Jersey backed off of its effort to reform pension bargaining; Baltimore and the Abbott districts remained mired in dysfunction, and the Baltimore mayor, when confronted with continued incompetence or malfeasance in his city’s schools, opted to bail out the city’s schools himself rather than accept the more wrenching changes demanded by the governor in exchange for a state loan. Meanwhile, there’s little evidence that adequacy led to any of the most widely-discussed disruptive reforms of the past fifteen years, including enhancing teacher quality by revamping licensure, adopting competency tests, or encouraging effective teachers to work in troubled schools; increasing managerial flexibility and district efficiency; adopting choice-based arrangements; or enacting accountability systems with meaningful consequences. Measures to remove ineffective teachers, link compensation to performance, or shutter low-performing schools met with little success in any of the states.
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Now, KERA indisputably wrought real changes in Kentucky, the state routinely hailed as the proof point for the potential of adequacy suits to drive systemic improvement.161 Some of these could fairly be regarded as disruptive. The decision to monitor school progress and link sanctions and rewards to performance—even if crudely designed—was a truly disruptive step. KERA also entailed a substantive and lasting commitment to site-based councils in the state’s schools. Tellingly, however, some scholars have argued that site-based management was popular in the 1990s precisely because it was the major reform most likely to enjoy symbolic appeal.162 In the case of KERA—when active business support, widespread public consensus, and a sympathetic legislature were all in place, the victory led to only limited gains in spending and reformers had only mixed success at sustaining reforms that educators deemed unwelcome. In the other three states, modest reform on even that scale proved unattainable. The cases suggest a substantial gap between the rhetoric of adequacy proponents and the actual effects of the lawsuits. Proponents have explained that they are not simply seeking more money—not merely pursuing “equity” lawsuits on some grander scale—but are ensuring that states provide productive, efficient, and effective K-12 school systems. Recall the quote from plaintiff’s attorney Alan Baron describing the ACLU suit in Maryland: “This suit is about output. Good education is more than a question of money.” Adequacy impresario Michael Rebell has explicitly asserted, “More and more, these litigation efforts are tied to a basic political organizing campaign,” and has even cited Maryland as one of two examples where the simple filing of a suit spurred reform.163 However, the cases examined here raise doubts about the seriousness of such claims and the feasibility of the purported goals. After all, if Baltimore represents the fruits of a highly effective organizing campaign, the prospects for dramatic reform appear dim.
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The reality, of course, is that the courtroom journey of adequacy suits typically unites various education constituencies—all of which can agree on the desirability of more resources. The legislative aftermath, in which taxes must be raised, decisions must be made, and serious efforts to reinvent the status quo imply disruptive reforms that require certain constituencies to swallow concentrated costs, is far more difficult. The potential of adequacy suits to unify various claimants and constituencies puts them on a very different footing from the earlier equity suits. Equity suits entered litigation with much less unified support and sported a predictably weaker won-lost record in the courts. Where equity suits drew sometimes fierce opposition from the wealthier suburban districts that would lose dollars, adequacy suits are more ambiguous in identifying losers—they distribute the costs broadly across the state, making it less likely that their coalition will fracture or that concerted opposition will arise. Moreover, the emphasis on “effectiveness” makes adequacy more palatable to business interests and suburban voters than was the earlier generation of purely redistributive equity cases. A result is that some adequacy litigation, as in Kentucky, has actually been more a genial conspiracy among public leaders than an adversarial process. The initial political advantage enjoyed by adequacy suits, however, lasts only so long as remedies avoid identifying losers among influential constituencies. The result is an incentive to embrace politically acceptable, accommodating measures that will not trigger opposition; this explains the preference of plaintiffs, courts, and legislators for broadly popular measures like general pay increases, preschool, construction, and professional development. To the extent that more controversial measures are proposed—as with the Kentucky accountability system or the takeovers of urban districts in Maryland or New Jersey—the evidence suggests that they will include significant safeguards for teachers, be massaged in the legislative process, and be
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pursued in a half-hearted fashion, or that potentially disruptive features adopted in the aftermath of the adequacy decision will be delayed, softened, or rescinded with time. Finally, to put a finer point on the possibility that adequacy victories might actually weaken the case for disruptive change, consider the case of charter schooling—perhaps the most widely-adopted disruptive reform of the past 15 years. While Ohio was relatively inactive in its response to adequacy judgments, it was by far the most active of the four states with regard to charter schooling. As of 2005, Ohio was sixth among states for the number of charter schools in operation.164 The legislative activity is noteworthy because, as an official from the U.S. Department of Education’s Office and Innovation and Improvement observed, “What was surprising about Ohio was that they were able to get a charter school law through at all, given how strong the unions are there.”165 Ohio, with 255 charter schools in early 2005, had embraced charter schooling much more aggressively than Kentucky, which had none at that time; Maryland, which had one; or New Jersey, which had 52.166 Meanwhile, some Kentucky observers have wondered whether the popular councils have absorbed reform energy and diminished support for disruptive reforms like charter schooling. Lisa Gross, a spokeswoman for the Kentucky Department of Education has provided credence to that view, saying, “We don’t get credit for school-based decision-making councils, which we believe are similar enough to charter schools” to make such legislation unnecessary.167 The Ohio experience at least raises the question of whether adequacy efforts may be a balm that tempers interest in disruptive reform and slows efforts to fundamentally reinvent K-12 schooling.
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Conclusion Adequacy suits backed by a strong political coalition for structural change do indeed have the potential to drive fundamental reform. Court orders “forcing” legislators to act, providing political cover, promising additional resources, and prying open a window of opportunity could help a mobilized reform coalition win deep-seated changes in how public schools are governed, managed, staffed, financed, structured, and held accountable. However, to date, even adequacy suits hailed as “landmark” or “comprehensive” show little evidence of producing such change. Even ardent adequacy champion Peter Schrag acknowledged in 2003, “The battles of the past decades demonstrate…that the courts are rarely great places to make educational policy. They can declare a state fiscal structure unconstitutional and order the legislature to fix it, but where the political system is reluctant…that can be like trying to push string uphill.”168 John Augenblick, one of the nation’s leading adequacy consultants has remarked, “I’m not sure that the courts can handle this.”169 Researchers have noted that courts prefer to intervene only when legislatures are clearly unwilling or unable to act effectively.170 Even then, as Ohio shows, the influence of courts may be quite circumscribed. The evidence raises real doubts as to whether adequacy suits will indeed spur public action. Some evidence suggests that people may pay little attention to these suits and that the suits do not roil the underlying political dynamics of education policymaking. In Ohio, nearly a decade after the adequacy suit was filed and after several state Supreme Court decisions, the population was still undecided on whether the lawsuit existed. In truth, evidence on this front is murky because little scholarly or practical attention has been paid to public attitudes toward school financing or to the effects of litigation.
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What is known about public opinion offers reason to question whether new spending will foster or retard substantive reform. The 2005 Phi Delta Kappan/Gallup poll found that 20% of respondents once again pointed to a lack of spending as the nation’s leading educational problem, making it the single most popular response.171 This line has enjoyed broad support among political elites, newspaper editorial boards, and education experts. At times, such sentiment may foster an emphasis on resources rather than results. For instance, a 1992 Kentucky survey asked respondents to choose between equal educational opportunity and high academic achievement and found that 73% percent of respondents opted for equality over achievement.172 This might reflect in part the analysis, news coverage, and public leadership that accompanied the Rose decision. Some preliminary data on news coverage in New Jersey and Ohio suggests that adequacy suits may focus media coverage and public attention on inputs and distract from attention to topics like accountability or teacher quality. It is worth at least considering whether adequacy suits may substitute for political mobilization and organization, causing the coalition for school reform to remain half-baked, to atrophy, or to be dominated by the traditional (already organized) groups. This issue is particularly significant because the general public expresses mixed feelings regarding a variety of disruptive reforms—from charter schools to linking teacher compensation to student performance—but is receptive in principle to reforms like merit pay and increased school accountability in principle.173 There is much reason to believe that the public is willing to contemplate aggressive reform but is quite eager to turn aside from conflictual or disruptive strategies. Adequacy suits and the new coverage they engender seem to be providing just such an opportunity and excuse.
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The window for transformational change opens not because educators are either sweettalked or brow-beaten into going along, but because the system’s inability to fulfill its obligations leads self-interested educators to deem themselves better off with change than with the status quo. In any line of work, decision-makers want to avoid unpopular decisions. But radical change sometimes requires leaders to make painful choices: to fire a popular principal, terminate ineffective teachers, close a troubled school, or dismantle and then remake managerial operations. In each case, the easiest course often is not to act. The way to compel them to do so is to make inaction unpalatable—even if it angers employees or constituents. The challenge posed by adequacy suits is that infusions of new money and the symbolic commissions, takeovers, new programs, and assessments that have accompanied them have reassured observers, soothed concerns, and made it easier for parties to push off tough decisions while leaving fundamental problems unaddressed. The result is that staggering dysfunction, incompetence, bureaucracy, and even corruption can remain largely unaddressed by “dramatic” reforms. There is reason to wonder whether the injections of new funds shifts most attention to inputs, undermines efforts to forge workable approaches to structural change, and erodes the incentive for teachers, administrators, or education officials to contemplate disruptive changes. The tendency for the litigants to chalk ensuing disappointments up to “implementation problems” or “politicking” may well illustrate the limitation of their chosen remedy. In fall 2005, Bebe Verdery, education director for the American Civil Liberties Union in Maryland, shrugged off questions about the workability and coherence of the Baltimore governance reforms, declaring, “Children should not be part of a political football game. Both the city and the state have a role in ensuring the students get a quality education. I expect them to work more collaboratively than they have over the last couple of years, or the children will suffer.”174
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Would-be reformers of all stripes must confront the sometimes frustrating reality that the provision of K-12 schooling—like that of other social policies—is ultimately a product of democratic decision-making. Decades of experience have shown that the hardest part of school reform is not getting public officials to act, but getting them to act in a manner that displaces ineffective routines and overhauls anachronistic arrangements. Efforts to use the courts to force more money into that decision-making apparatus or to demand “different” kinds of decisions will succeed to the extent that they are amenable to the dominant constituencies—all of which have reasons to resist change they regard as “disruptive.” The record suggests little cause for optimism that this pushing and pulling with yield consequential reform. To the extent that reformers believe the status quo is fundamentally problematic and seek to transform it, the courts are unlikely to provide much succor—unless the reformers work to build coalitions to demand such changes. Of course, the irony is that success on that front would likely render judicial intervention unnecessary—except as a lever for forcing new expenditures.
1
Peter Schrag, Final Test: The Battle for Adequacy in America’s Schools (New York: New Press, 2003), pp. 5-6. Todd A. DeMitchell and Richard Fossey, The Limits of Law-Based School Reform (Lancaster, PA: Technomic, 1997), p. 136. 3 Michael Rebell, “Why Adequacy Lawsuits Matter,” Education Week, August 11, 2004, p. 40. 4 Reagan Walker, “Kentucky Officials Begin Laying Plans to Rebuild System,” Education Week, June 21, 1989. 5 Douglas S. Reed, On Equal Terms: The Constitutional Politics of Educational Opportunity (Princeton University Press, 2001). 6 Lawrence Picus, “Adequate Funding,” School Funding: The Business of Education, last accessed October 2, 2005, www.asbj.com/schoolspending/picus.html. 7 Eric Hanushek, “Pseudo-Science and a Sound Basic Education,” Education Next, 2005, Vol. 5, No. 4, pp. 67-73. 8 Schrag, Final Test, p. 9. 9 Schrag, Final Test, pp. 9-11. 10 From the Advocacy Center for Children’s Educational Success with Standards (Campaign for Fiscal Equity) website, accessed September 20, 2005, “Litigation Overview.” 11 Molly Hunter, “Education Finance Adequacy Lawsuits: Trends and Rulings,” School Business Affairs, December 2004. 12 R. Douglas Arnold, The Logic of Congressional Action (Yale University Press, 1990). 13 See Frederick M. Hess, Spinning Wheels: The Politics of Urban School Reform (Washington DC: Brookings Institution, 1999). 14 The National Education Association, for example, has actively backed adequacy lawsuits. One national representative explained that he could foresee no circumstance in which the NEA would oppose adequacy lawsuits, 2
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arguing that “in order to achieve academic standards required by each state, students need adequate resources.” He reported that the NEA believes that even “the threat of a lawsuit will increase [school] funding.” 15 Melissa Carr and Susan Fuhrman, “The Politics of School Finance in the 1990s,” Equity and Adequacy in Education Finance: Issues and Perspectives, National Research Council, p. 142. 16 Anthony Rolle and Keke Liu, Peabody Journal of Education, No. 3, 2004, p.157. 17 Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (University of Chicago Press, 1991). See also Robert H. Bork, The Tempting of America (New York: Free Press, 1997). 18 Editor David A. Schultz, Leveraging the Law: Using the Courts to Achieve Social Change (New York: Peter Lang, 1998). 19 The authors do not detail their methodology. They note that various databases and websites thought to be relevant were searched, and that “229 articles read in-depth, including 82 articles from sources such as the Journal of Education Finance, 111 from law journals, and 36 from other sources that met the goals of this study.” David C. Thompson and Faith E. Crampton, “The Impact of School Finance Litigation: A Long View,” Journal of Education Finance, Winter 2002, p. 785. 20 Thompson and Crampton do not provide a description of their method for determining which studies qualify as studying “direct litigation effects,” nor do they define “measurable impact,” which seems to be one of their criteria for inclusion in this category. “The Impact of School Finance Litigation.” 21 Thompson and Crampton, “The Impact of School Finance Litigation,” p. 813. 22 Todd A. DeMitchell and Richard Fossey, The Limits of Law-Based School Reform, (Lancaster, PA: Technomic, 1997), p. 142. 23 Richard G. Salmon and David M. Alexander, “State Legislative Responses,” The Impacts of Litigation and Legislation on Public School Finance (New York: Harper & Row, 1990), pp. 249-271. 24 George Alan Hickrod and Margaret E. Goertz, “Introduction: Evaluating the School Finance Reforms of the 1970s and Early 1980s,” Journal of Education Finance, Vol. 8, 1983, pp. 415-418. See also G. Alan Hickrod, Edward R. Hines, Gregory P. Anthony, John A Dively, and Gwen B. Pruyne, “The Effect of Constitutional Litigation on Education Finance: A Preliminary Analysis,“ Journal of Education Finance, Vol. 18, 1992, pp. 180210. 25 William N. Evans, Sheila E. Murray, and Robert M. Schwab, “Schoolhouses, Courthouses, and Statehouses after Serrano,” Journal of Policy Analysis and Management, Vol. 16, Winter 1997, pp. 10-31. See also William N. Evans, Sheila E. Murray, and Robert M. Schwab, “The Impact of Court-Mandated School Finance Reform,” Equity and Adequacy in Education Finance: Issues and Perspectives, ed. Helen F. Ladd, Rosemary Chalk, and Janet S. Hansen, (Washington, DC: National Academy Press, 1999), pp. 72-98. 26 Thompson and Crampton, “The Impact of School Finance Litigation,” p. 789. 27 G. Alan Hickrod, Ramesh Chaudhari, Gwen Pruyne, and Jin Meng, “The Effect of Constitutional Litigation on Educational Finance: A Further Analysis,” in Selected Papers in School Finance 1995 (United States Department of Education, National Center for Education Statistics, 1997). 28 Bradley W. Joondeph, “The Good, the Bad, and the Ugly: An Empirical Analysis of Litigation-Prompted School Finance Reform,” Santa Clara Law Review, Vol. 35, 1995, p. 763. 29 Scott R. Sweetland, “School Finance Reform: Legality Turned Polity,” Journal of Education Finance, 2002, 27(3), pp. 817-832. See also Douglas S. Reed, “Twenty-Five Years after Rodriguez: School Finance Litigation and the Impact of the New Judicial Federalism,” Law & Society Review, Vol. 32, No. 1, 1998. 30 Douglas S. Reed, “Twenty-Five Years after Rodriguez.” 31 Karen Swenson, “School Finance Reform Litigation,” Albany Law Review, Vol. 63, No. 4, 2000, p. 1147. 32 Christopher Roellke, Preston Grefen, and Erica H. Zielewski, “School Finance Litigation: The Promises and Limitations of the Third Wave, Peabody Journal of Education, Vol. 79, No. 3, 2004, p. 130. 33 Michael Heise, “The Effect of Constitutional Litigation on Education Finance: More Preliminary Analyses and Modeling,” Journal of Education Finance, No. 2, 1995, pp. 195-216. 34 Michael Mintrom, “Why Efforts to Equalize School Funding Have Failed: Towards a Positive Theory,” Political Research Quarterly, Vol. 46, No. 4, 1995, pp. 847-862. 35 Reed, “Twenty-Five Years after Rodriguez,” pp. 175-220. See also Sweetland, “School Finance Reform,” pp. 817-832. 36 Griffith, Michael. “School Funding Adequacy Cases.” Education Commission of the States StateNotes. 2005. 37 Melissa C. Carr and Susan H. Fuhrman, “The Politics of School Finance in the 1990s,” in Equity and Adequacy in Education and Finance: Issues and Perspective, Helen F. Ladd, Rosemary Chalk, and Janet S. Hansen, eds. (National Academy Press, 1999), pp. 155-57.
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Michael Paris, “Legal Mobilization and the Politics of Reform: Lessons from School Finance Litigation in Kentucky, 1984-1995,” Law and Social Inquiry (University of Chicago Press on behalf of the American Bar Foundation, 2001), pp. 669-70. 39 Reagan Walker, “Entire Kentucky’s School System Is Ruled Invalid,” Education Week, June 14, 1989. 40 Lonnie Harp, “After First Year, Ky. Reforms Called ‘On the Move,’” Education Week, April 10, 1991. 41 Thomas Snyder, Charlene Hoffman, and Claire Geddes, State Comparisons of Education Statistics: 1969-70 to 1996-7, National Center for Education Statistics (United States Department of Education, 1998), “Table 2: Household Income and Poverty Rates, by State: 1990, 1994, 1995.” 42 1990 Digest of Education Statistics, National Center for Education Statistics (United States Department of Education, 1990), “Table 12: Years of School Completed by Persons Age 25 and Over, by State: April 1980.” 43 1990 Digest of Education Statistics, “Table 155: Current Expenditure Per Pupil in Average Daily Attendance in Public Elementary and Secondary Schools, by State: 1959-60 to 1987-88” (in current dollars) and “Table 66: Selected Characteristics of Public School Teachers’ Current Teaching Assignments, by State: 1987.” Table 66 data is originally from The Condition of Teaching: A State-by-State Analysis (The Carnegie Foundation for the Advancement of Teaching, 1988.) 44 As said by Ray Corns, the circuit-court judge who first declared the state’s finance system unconstitutional in 1988, in Harp, “After First Year, Ky. Reforms Called ‘On the Move.’” 45 As said by Elissa Plattner, a long-time member of the Prichard Committee, a prominent and influential organization that focuses on Kentucky education reform issues, in Crystal Harden, “Dusting Off the Armor,” The Kentucky Post, November 15, 2003. 46 Harden, “Dusting Off the Armor.” 47 Paris, “Legal Mobilization and the Politics of Reform,” p. 649. 48 Reagan Walker, “Lawmakers in Ky. Approve Landmark School-Reform Bill,” Education Week, April 4, 1990. 49 Molly A. Hunter, “Maryland Enacts Modern, Standards-Based Education Finance System: Reforms Based on ‘Adequacy’ Cost Study,” a project of the Campaign for Fiscal Equity (Advocacy Center for Children’s Educational Success with Standards, 2002). 50 Groups such as Families United for Morals in Education and Parents and Professionals Involved in Education expressed concerns that state curriculums would teach their children “to embrace any lifestyle and support extreme environmentalism.” Lonnie Harp, “The Plot Thickens,” Education Week, May 18, 1994. 51 Telephone interview, Dr. Robert Sexton, Executive Director of the Prichard Committee, September, 2005 [hereinafter Sexton Interview]; Paris, “Legal Mobilization and the Politics of Reform,” pp. 633-34; see Jack Moreland’s comments in Courtney Kinney, “KERA Replay: School Districts Return to Court to Boost Funding,” The Kentucky Post, June 27, 2003. 52 See, Daniel C. Vock, “Standards push helps lawsuits,” Catalyst Chicago, April 2004. 53 Paris, “Legal Mobilization and the Politics of Reform,” pp. 666-67. 54 “A Citizen’s Handbook: The Kentucky Education Reform Act,” written by Kentucky Senate and House members (Legislative Research Commission, 1994). 55 No Author Indicated, “Budget Imperils Education Reform,” Lexington Herald Leader, February 26, 1992. p. A6. 56 Lynn Olson, “From Risk to Reform: Kentucky Moves to Enact Reform Plan,” Education Week, April 21, 1993. 57 Kentucky Department of Education, “Results Matter: A Decade of Difference in Kentucky’s Public Schools, 1990-2000” (Lexington, KY: 2000), p. vi. 58 The Kentucky Department of Education reports that “school councils have authority over each school’s budget, staffing assignments, professional development, curriculum, instructional materials and techniques, and other areas. The school council has a unique role and opportunity in affecting the school’s learning environment” in “Results Matter,” p. 63. 59 The poll, conducted by the Kentucky Institute for Education Research in November 1999, reported that the percent responding that “school councils work very/moderately well in improving teaching and learning” had increased among all answering groups. In the five year period between 1994 and 1999, the percentage of principals in this answer category grew from 75% to 82%, the percentage of teachers in this answer category grew from 64% to 76%, and the percentage of parents in this answer category from 63% to 64%. “Results Matter,” p. 63. 60 “A Citizen’s Handbook,” p. 13 and 18; Sexton interview. 61 “A Citizen’s Handbook,” p. 13. 62 “KERA’s Wide Support,” The Courier-Journal (Louisville, KY), December 2, 1999, p. 12A. 63 See, for instance, Daniel M. Koretz and Sheila I. Barron, “The Validity of Gains in Scores on the Kentucky Instructional Results Information System (KIRIS)” (RAND Corporation, 1998).
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Quoted from the description of CATS Accountability System on the Kentucky Department of Education website. Page last updated in 2005. Available at: http://www.education.ky.gov/KDE/Administrative+Resources/Testing+and+Reporting+/CATS/default.htm. 65 Nancy C. Rodriguez, “Fiscal Trouble, Doubts Put School-Reward System at Risk,” The Courier-Journal, January 29, 2004. 66 Rodriguez, “Fiscal Trouble, Doubts Put School-Reward System at Risk” 67 Rodriguez, “Fiscal Trouble, Doubts Put School-Reward System at Risk.” 68 David J. Hoff, “Capitol Recap: Despite Rise in Spending, Reform Effort Takes Hits,” Education Week, May 21, 2003. 69 Nancy Rodriguez, “Fiscal Trouble, Doubts Put School-Reward System at Risk,” Courier-Journal, January 29, 2004, p. 1A. 70 Harden, “Dusting Off the Armor.” 71 Linda B. Blackford, “Superintendents Uneasy about Added Expenses,” Lexington Herald Leader, January 17, 2002, p. B1. 72 Lisa Deffendall, “Study: State Schools Need $740 Million,” The Lexington Herald Leader, April 4, 2003. 73 Monica Richardson-Roberts, “March on Frankfort Set Feb. 12,” The Lexington Herald Leader, December 25, 2002. 74 Peter Mathews, “Lesson Plan: Rally for the Budget,” Lexington Herald Leader, February 11, 2003. 75 Douglas S. Reed, On Equal Terms. 76 Alexandra Greif, “New Jersey's Experience Implementing the Abbott V Mandate,” Yale Law & Policy Review, Spring 2004, p. 618. 77 Richard Lehne, The Quest for Justice: The Politics of School Finance Reform (New York: Longman, 1978). 78 Education Law Center website, “History,” http://www.edlawcenter.org/ELCPublic/AboutELC/History.htm. 79 Schrag, Final Test, p. 113. 80 Douglas S. Reed, On Equal Terms, p.84. 81 Education Law Center website: http://www.edlawcenter.org/ELCPublic/AbbottvBurke/AbbottDistricts.htm. The definition also proceeded to include, “Failure to achieve what the DOE considers passing levels of performance on the High School Proficiency Test (HSPT); a large percentage of disadvantaged students who need ‘an education beyond the norm’; existence of an ‘excessive tax [for] municipal services’ in the locality where the district is located and; a large percentage of students of color.” 82 Margaret E. Goertz, “The Development and Implementation of the Quality Education Act of 1990” (Center for Educational Policy Analysis, 1992). 83 Peter Kerr, “Florio's Tax-Increase Plan is Passed by Senate, 21-17,” New York Times, June 21, 1990, p. B1 84 Peter Kerr, “The 1990 Elections: New Jersey—A Governor’s Response,” New York Times, November 8, 1990, p. A1. 85 Anthony DePalma, “Anti-Tax Protesters Demand Florio’s Recall, For Starters,” New York Times, July 2, 1990, p. B4. 86 Douglas S. Reed, On Equal Terms, p. 139. 87 Barbara G. Salmore and Stephen A. Salmore, New Jersey Politics and Government: Suburban Politics Comes of Age (Lincoln: University of Nebraska Press, 1993). 88 Peter Kerr, “Florio School-Aid Package Gains Final Approval,” New York Times, June 21, 1990, p. A1. 89 Peter Kerr, “The 1990 Elections: New Jersey—A Governor’s Response,” p. A1. 90 Greif, “New Jersey’s Experience Implementing the Abbott V Mandate,” p. 623. 91 Douglas S. Reed, On Equal Terms, p. 154. 92 Douglas S. Reed, On Equal Terms, p. 152. 93 Greif, “New Jersey’s Experience Implementing the Abbott V Mandate,” p. 656. 94 Center for Government Services, Rutgers, New Jersey’s Public Schools: A Biennial Report for the People of New Jersey 2002-2003 Edition, Appendix A.2, http://policy.rutgers.edu/cgs/PDF/NJPS02.pdf. 95 Center for Government Services, Rutgers, New Jersey’s Public Schools, p. 21. 96 Dunstan McNichol, “Builders’ Lobbyist Quits School Construction Board,” The Star-Ledger, September 23, 2005. 97 Dunstan McNichol and Steven Chambers, “Jersey's Schools of Hard Knocks,” The Star-Ledger, September 8, 2005. 98 John P. Martin, “Former School Aide Accused of Accepting $78,000 in Payoffs,” The Star-Ledger, September 22, 2005.
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John Mooney, “Corzine: School Program ‘A Disgrace’,” The Star-Ledger, September 09, 2005. Greif, “New Jersey's Experience Implementing the Abbott V Mandate.” 101 Bill Shralow and Frank Kummer, “Abbott Schools Make Strides on State Tests,” The Courier-Post, January 11, 2002. 102 “Achievement Gap Summary: NAEP 2003,” Education Watch, Spring 2004, pp. 13-17. 103 Greif, “New Jersey's Experience Implementing the Abbott V Mandate.” 104 Limitations in the data base meant that this analysis could only be conducted for New Jersey and Ohio. 105 Dana E. Sullivan, “Court Still Rides Herd on Abbott Plan,” New Jersey Lawyer, Vol. 14, No. 33, August 15, 2005. p. 4. 106 Reed, On Equal Terms, p. 160. 107 Census 2000, United States Census Bureau. 108 Council of the Great City Schools, “Adequate Financing of Urban Schools: An Analysis of Funding of the Baltimore City Public Schools,” January 2000, pp. 12-16. 109 Jean Thompson, “Rawlings Again Proposes Money Squeeze on Schools,” The Baltimore Sun, March 15, 1995. 110 Mike Bowler, “ACLU sues state over school funding.” The Baltimore Sun, December 7, 1994. 111 Bowler, “ACLU sues state over school funding.” 112 Thomas Saunders, “Settling Without ‘Settling’: School Finance Litigation and Governance Reform in Maryland,” Symposium: School Finance Litigation, Yale Law & Policy Review, Spring 2004, p. 6. 113 Saunders, “Settling Without ‘Settling,’” p. 8. 114 In 1993-94, Baltimore City’s total expenditures on public schools amounted to $639,683,000 and per-pupil spending was $5,471, as reported by the National Center for Education Studies, 1997 Digest of Education Statistics, “Table 92: Selected statistics for public school districts enrolling more than 20,000 pupils, by state: 1995-96.” 115 Thomas W. Waldron and William F. Zorzi Jr., “House Leaders Turn Up Heat with Revised School Aid Plan,” The Baltimore Sun, March 25, 1997. 116 Thomas W. Waldron and William F. Zorzi Jr., “House Passes Measure on City Schools,” The Baltimore Sun, April 6, 1997. 117 See, for instance, Thomas W. Waldron and William F. Zorzi Jr., “City School Aid Votes Lining Up,” The Baltimore Sun, March 27, 1997. 118 Charles Babington, “Teachers Pushing to Set Own State Standards Find Ally in Glendening,” The Washington Post, March 9, 1995, p. C1. 119 See Thomas W. Waldron and William F. Zorzi Jr., “Blacks Denounce Schools Package,” The Baltimore Sun. April 4, 1997, p. 1A. 120 Diane W. Cipollone, “Gambling on a Settlement: the Baltimore City Schools Adequacy Litigations,” Journal of Education Finance, summer 1998, p. 105. 121 Saunders, “Settling Without ‘Settling,’” p. 19. 122 Saunders, “Settling Without ‘Settling,’” p. 20-21. 123 The Thornton Commission on Education Finance, Equity, and Excellence Preliminary Report (see in particular Appendix 1; Exhibit 12) and Final Report (see in particular section 2.6 and 3.3) can be accessed online through the Maryland State Archives at http://www.mdarchives.state.md.us/msa/mdmanual/26excom/defunct/html/13edfin.html 124 Saunders, “Settling Without ‘Settling,’” p. 28. 125 Baltimore 1998 per pupil spending figure is from the Thornton Commission Preliminary Report, Exhibit 12; Baltimore 2003 per pupil spending figure is from Federal, State, and Local Governments 2003 Public ElementarySecondary Education Finance Data (United States Census Bureau, March 2005), “Table 17: Per Pupil Amounts for Current Spending of Public Elementary-Secondary School Systems with Enrollments of 10,000 or More: 2002-03”; for Maryland per pupil spending figure sources, see Table 1. 126 Liz Bowie and Tanika White, “710 City School Employees Get Notice of January 1 Layoffs,” The Baltimore Sun, November 26, 2003, p. A1. 127 John Gehring, “Looming Race Fuels Sniping Over Baltimore Schools,” Education Week, September 14, 2005, p. 8. 128 Waldron and Zorzi Jr., “House Passes Measure on City Schools.” 129 Liz Bowie, “Warnings Lined Road to Disaster,” The Baltimore Sun, April 4, 2004. 130 Kate Shatzkin and Mike Bowler, “Md. Fires a Salvo in School Dispute,” The Baltimore Sun, October 21, 1995. 131 Jay Gillen, “Pay up, Maryland.” The Baltimore Sun, February 6, 2004. 132 Saunders, “Settling Without ‘Settling’,” p. 29. 100
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Baltimore City Public School System Division of Research, Evaluation, and Accountability, “Student Performance on the Maryland School Assessment Program: 1996-97 through 2001-02,” a report prepared for the Board of School Commissioners, December 10, 2002. 134 Catherine Candisky, “School Funding: Where Is Ohio Headed?” Columbus Dispatch, March 30, 1997; Dissenting opinion of Chief Justice Thomas J. Moyer, DeRolph v. State of Ohio, 95-2066, April 25, 1997, p. 30. 135 Benson, Andrew, “Ohio’s School-Funding Dilemma: Is the Court on the Right Track?” The Columbus Dispatch, May 15, 2000. 136 William L. Phillis, “Ohio's School Funding Litigation Saga: More Money and Some New Buildings but the Same Unconstitutional School Funding Structure,” Journal of Education Finance, Winter 2005, pp. 313-20. 137 Dennis J. Willard and Doug Oplinger, “Battle Is Still Raging Leveling Up, Not Leveling Down,” Akron Beacon Journal, March 25, 1997. 138 Phillis, “Ohio's School Funding Litigation Saga,” p. 319. 139 Sandra K. McKinley, “The Journey to Adequacy: The DeRolph Saga,” Journal of Education Finance, Spring 2005, pp. 321-81. 140 See “Children in America’s Schools with Bill Moyer.” The documentary was based on Jonathan Kozol's Savage Inequalities: Children in America's Schools (New York: Crown Publishers, 1991), and was filmed entirely in Ohio. 141 McKinley, “The Journey to Adequacy,” p. 322. 142 “Judicial Lawmaking High Court Wreaks Havoc in Ohio Schools,” The Columbus Dispatch, March 25, 1997. 143 The Court majority wrote, “We would be remiss if we failed to acknowledge that thoroughness and efficiency embrace far more than simply adequate funding. Even if the system were very generously funded, if other factors are ignored, it might still not be thorough and efficient.” DeRolph v. State of Ohio, decided May 11, 2000, p. 13. 144 McKinley, “The Journey to Adequacy,” p. 349. 145 Democratic Senator Tim Hagan said of the Republican-dominated state system are telling, “It’s their jacket, and they should wear it. The pressure should be on them.” William Hershey, “Funding Decision Forces Taft Out,” Clayton Daily News, September 9, 2001. 146 McKinley, “The Journey to Adequacy,” p. 377. 147 DeRolph v. State, decided December 11, 2002, p. 5. 148 DeRolph v. State, decided May 16, 2003, p. 10. 149 KnowledgeWorks Foundation, “Ohio’s Education Matters: KnowledgeWorks Foundation 2001-02 Poll,” p. 31. 150 KnowledgeWorks Foundation, “Ohio’s Education Matters,” p. 42. 151 KnowledgeWorks Foundation, “Ohio’s Education Matters,” p. 42. 152 Mark Ferenchik, “Mayors Considering Ways To Overhaul School Funding,” The Columbus Dispatch, September 17, 2005. 153 Years 1969-2001 are from Table 170 from 2003 Digest of Education Statistics, “Current expenditure per pupil in fall enrollment in public elementary and secondary schools, by state or jurisdiction: Selected years, 1969-70 to 2000-01” (unadjusted dollars); Year 2002-2003 is from Table 5 in Revenues and Expenditures for Public Elementary and Secondary Education: School Year2002-03 (NCES 2005), “Student membership and current expenditures per pupil in membership for public elementary and secondary schools, by function, state, and outlying areas: School year 2002-03.” 154
Years 1972-73 to 1992-93 are from Table 27 “Estimated average annual teacher salaries (in current dollars) in public elementary and secondary schools, by state: 1970-71 and 1996-97” from State Comparisons of Education Statistics: 1969-70 to 1996-7, NCES 98-018, by Thomas Snyder, Charlene Hoffman, and Claire Geddes, published 1998; Years 1997-98 are from Table 76 in 2000 Digest of Education Statistics, “Estimated average annual salary of teachers in public elementary and secondary schools, by state 1969-70 to 1998-99” (in current dollars); Years 200203 are from Table 78 in 2003 Digest of Education Statistics, “Estimated average annual salary of teachers in public elementary and secondary schools, by state: Selected years, 1969-70 to 2002-03” (in current dollars). 155
“Class Size Counts: The Research Shows Us Why,” American Teacher, April 1998. NAACP, “Call for Action in Education,” November 2001, p. 11. 157 Years 1972-1992 are from Table 24 from State Comparisons of Education Statistics: 1969-70 to 1996-7 (NCES 1998), by Thomas Snyder, Charlene Hoffman, and Claire Geddes, “Pupil/teacher ratios in public elementary and secondary schools, by state: Fall 1970 to fall 1995”; Years 1997-2001 are from Table 66 from 2003 Digest of Education Statistics, “Teachers, enrollment, and pupil/teacher ratios in public elementary and secondary schools; by 156
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state or jurisdiction: Fall 1996 to fall 2001”; Year 2002-2003 is from Table 5 from Public Elementary and Secondary Students, Staff, Schools, and School Districts: School Year 2002-03 (NCES 2005): “Public school student/teacher ratio, student membership, and number of teachers, by level of instruction: United States and other jurisdictions, school year 2002-03.” 158
Michael Minstrom, “Why Efforts to Equalize School Funding Have Failed: Towards a Positive Theory,” Political Research Quarterly, 1995, pp. 847-62. 159 All data is retrieved from the NAEP website (http://nces.ed.gov/nationsreportcard/) “Data Tool.” NA denotes data not available; * denotes years when accommodations were not permitted on tests. 160 Hunter, “Maryland Enacts Modern, Standards-Based Education Finance System: Reforms Based on ‘Adequacy’ Cost Study,” pp. 5-6. 161 “Results Matter,” p. viii. 162 Frederick M. Hess, “A Political Explanation of Policy Selection: The Case of Urban School Reform,” Policy Studies Journal, Vol. 27, No. 3, 1999, pp. 459-73. 163 Vock, “Standards Push Helps Lawsuits.” 164 Alexander Russo, “A Tough Nut to Crack in Ohio: Charter Schooling in the Buckeye State,” (Washington DC: Progressive Policy Institute, February 2005), p. 5. 165 Michael Petrilli quote from Russo, “A Tough Nut to Crack in Ohio,” p. 5. 166 Center for Education Reform, 2005, website: www.edreform.com. 167 Nancy C. Rodriguez, “Kentucky receives an ‘A’ on School Testing,” The Courier-Journal, January 8, 2004. 168 Schrag, Final Test, p. 233. 169 Schrag, Final Test, p. 233. 170 Jonathan Banks, “State Constitutional Analyses of Public School Finance Reform Cases: Myth or Methodology?” Vanderbilt Law Review, January 1992, p. 129. 171 Lowell C. Rose and Alex M. Gallup, “The 37th Annual Phi Delta Kappan/Gallup Poll of the Public’s Attitudes Toward the Public Schools,” Phi Delta Kappan, September 2005, Vol. 87, No. 1, pp. 41-57. 172 Reed, On Equal Terms, pp. 97-8. 173 Lowell C. Rose and Alex M. Gallup, “The 37th Annual Phi Delta Kappan/Gallup Poll of the Public’s Attitudes Toward the Public Schools,” Phi Delta Kappan, September 2005, Vol. 87, No. 1, pp. 41-57. 174 Gehring, “Looming Race Fuels Sniping Over Baltimore Schools,” p. 8.
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