Background and Prior Studies
The late Charles Scott Benson, testifying before a U.S. Senate Committee not long ago said, "You must be very careful when you wish for things because you may just get what you wish for. We worked hard for equity in California. We got it. Now we don't like it." Before Professor Benson made his sage observation, James Gordon Ward, in a seminal conceptual piece had noted that the goals of "equity" and "adequacy" might well be in conflict (1990).
Despite the timely warnings by Benson and Ward, however, 44 states have experienced litigation challenging the constitutionality of their K-12 finance systems. Appendix A is a current update of the status of those state constitutional challenges. For the last four years, the American Education Finance Association has conducted a pre-conference workshop for plaintiffs' lawyers in these school finance constitutional challenges. Every year, the filing of new complaints has been reported in that workshop. Obviously, a considerable number of people think that something can be gained by bringing these cases to court.
Six studies were used in the empirical quantitative research reported here. These either bore directly on the question of the effect of these constitutional challenges on school finance, or provided the necessary data for an investigation of that topic. The first study was by the senior author of this report and his colleagues at the Center for the Study of Education Finance, Illinois State University. Hickrod et al. (1992) used a twenty-year time span (1970-90). This research group found that winning the case at the state supreme court level had only a modest effect on increases in expenditure per pupil. However, winning at the state supreme court level brought about a meaningful shift in tax burden from local to state sources, while losing at the state supreme court level brought about the opposite effect- a shift from state to local resources. Winning the case was thus seen more as a means of property tax relief than as a prime determinate of more adequate funding. Winning also appeared to have little effect on fiscal effort for education. Using re-worked data from a study by James Wyckoff (1992), Hickrod et al. also concluded there was some evidence to support the hypothesis that winning, or winning and then filing compliance litigation, had the effect of reducing disparities between school districts. A disadvantage of the Wyckoff data was the limited time period, 1980 to l987.
To date, the most sophisticated investigation of the question of the effect of judicial intervention is by Michael Heise (Fall, 1995). Heise used data from l970 to l992 to explore the effect of state supreme court decisions in two states, Wyoming and Connecticut. The study is multivariate in design and uses a dummy variable to represent the decision at one point in time. The research design is a single interrupted time series. Heise finds that in neither Wyoming nor Connecticut was the state supreme court decision statistically significant in increasing the expenditure per pupil of those states. Other factors in his multivariate equation played a greater role in increasing expenditure per pupil than did the court decision.
A study by Lauri Peternick (1995) used the longitudinal financial record of 12 states which had found their school finance systems to be unconstitutional (Arkansas, California, Connecticut, Kansas, Kentucky, Montana, New Jersey, Texas, Washington, West Virginia, Wisconsin, Wyoming). By comparing these states in which the system was adjudged unconstitutional with states in which the system was sustained, she sought evidence on the question of whether a decision was detrimental to increases in expenditure per pupil. While the Peternick study is not multivariate in nature, it is perhaps closer to the Benson-Ward notion that seeking the goal of equity might be detrimental to adequacy. Peternick's research did not support that notion. To the contrary, she found that the judicial interventions have stimulated growth in expenditure per pupil in those twelve states with successful litigation.
There is a major difference in the research designs of Heise and Peternick from that used by the Hickrod group at ISU. While Heise and Peternick sought to determine the effect of a decision at one point in time, the work at ISU assumes that the effect of decisions, note the plural, is cumulative over time. The Hickrod design is based on a notion that the litigation brings pressure upon the state legislature. How much pressure can be brought by the litigation on the state legislature? There is some evidence that the longer the court case is pursued, the more the pressure on the legislature builds. Winning, or winning followed by compliance litigation, puts the most pressure on the state legislature. Losing puts the least amount of pressure on the legislature, but losing and refiling at a later date on different legal grounds still applies some pressure on the state legislature. The Heise/Peternick approach is a single sharp action while the Hickrod approach is one of long term "climate" in a state. Neither design is wrong; they are just different.
In addition to these empirical studies, the work by Hertert (1994), Riddle (1994), and Moskowitz, provided essential calculations for the investigation reported here. \1\ These calculations of the amount of disparity in each state, often measured as the coefficient of variation, have made a very valuable contribution to the study of educational finance. So much of the school finance data of the past has been based on individual state case studies that it has been difficult to mount generalizations which will hold over all 50 states. This is not to deprecate individual state case studies. Given the de-centralized organization of school finance in the United States, those individual state case studies will continue to play an important policy role in American school finance (Hickrod et al.).
Empirical Section
As in the previously reported study, the investigators assumed that the six categories of states pictured in Figure 1 constituted the six different "climates" in which school finance fiscal policy changes have taken place. The first eight states of Category I are those in which plaintiffs have won a clear judicial victory. In these states, it was assumed that the pressure on the legislature would be at the greatest level. The six states of Category II also constitute those in which judicial activity would have put great pressure on the legislatures. In these states, there has been a clear judicial victory for the plaintiffs, but the plaintiffs have been unhappy with the actions of the state legislature and have sought additional relief from the courts. The 11 states of Category III should exert less pressure on the legislatures since in those states the defendant (the state) won and no further complaint has been filed, or, if a further complaint has been filed, that complaint also lost. Less pressure should also be found in Category IV, although these six states constitute something of an enigma. They are states in which a previous effort at litigation has lost and yet plaintiffs have had the perseverance and stamina to file again on a different legal theory and perhaps even file a second or third major challenge. Thus, Category IV might indicate more pressure than Category III.In the ten states in Category V, there should be less pressure on the state legislature since no state supreme court ruling has yet taken place. There have been middle level court decisions in some of these states, in addition to lower court decisions. In some of these states most of the action has been on a motion to dismiss by the state, with no trial on the merits having yet been held. It would seem that the pressure on the legislature brought about by an actual trial on the merits could be an important part of the determinants of fiscal policy which this study wanted to investigate. A trial of several weeks, with its attendant press coverage, might well generate actions in the legislature that nothing else could bring about. Finally, Category VI states surely constitute the least pressure on the legislature. In fact, in six of these nine states there has been no litigation at all and in the other four states there has been a history of litigation but the case is presently dormant.
It will be obvious to those familiar with this body of litigation that this "climate" system is far from perfect. Assigning a state like Kansas, where there has been a good deal of litigation activity, to Category VI is especially doubtful. Also assuming that the action at the lower court level in Alabama was equal to the actions in the lower and middle level courts of Illinois is unfounded. Neither is there a comparison between these two states with a very unusual supreme court action in Missouri. It may also be difficult for plaintiff lawyers to accept that the decision in North Dakota was actually a loss. However, even though the categories demonstrate some heterogeneity within class, the categories are sufficiently distinct to be useful for analysis. Both the previously reported work and the work reported here confirm that belief.
The first evidence is in Table 1 which takes four fiscal variables at one point in time and categorizes them by the six state "climates." This is probably the weakest of the evidence reported here since many variables other than court decisions could and do affect the magnitude of these four fiscal variables. Nevertheless, there are some interesting possibilities. The highest expenditure levels are found in Categories II and IV. Repeated litigation is found in both of these categories. In Category II there has been a win and then further litigation. In Category IV there has been a loss and then further litigation. The lowest expenditure levels are found in the states that have experienced no litigation or where the litigation is dormant.
With regard to the crucial matter of disparity between districts (Table 1, coefficient of variation), at first there does not appear to have been much effect caused by court activity since the disparity for the winning states is actually greater than the disparity in the losing states. However, this picture greatly changes when the focus becomes change through time which is the subject of Table 2. In Table 1, fiscal effort, defined as the ratio of expenditure per pupil to income per capita as of l993, also does not seem to have been effected much by court decisions. Percentage of state aid is high for Category II (winning plus additional compliance litigation), but it is also high for Category VI which has little litigation activity. Again, this is clarified by Table 2.
The evidence of Table 2 is more substantial. Here are arrayed the same four fiscal variables, but now the focus is on change through time in these four variables. States in which there have been winning supreme court decisions have a greater percentage increase than any other legal category. This finding would support the Peternick results. However, since no controls are effected here for other variables that are changing through time, as in the Heise study, one cannot be sure the increase in funding observed is due entirely to the court decision(s). The change in disparity between school districts within a state is much more prominent than is the increase in expenditure per pupil. Here Category I (winning) states have clear reductions in disparity between school districts and there is also a reduction in disparity in Category II states (win but with further compliance litigation). By contrast, Category III states (losing states) show no decease in disparity between school districts and Category IV states (loss but with further litigation) show striking increases in disparity among school districts. This makes some practical sense. It is quite likely that the increasingly disparate situations in Ohio, Pennsylvania, and New York have driven the equity proponents in those states back into additional litigation, despite some early losses in that arena.
Differences in changes in fiscal effort are not remarkable except that it is interesting to note that increases in fiscal effort are lowest in Category VI, the category with the least legal activity. With respect to change in percentage of state aid provided to local school districts, it is apparent that very large increases in state aid occurred in Category II states (plaintiff won and then filed compliance litigation after the win). This suggests winning the lawsuit may bring about tax relief to property taxpayers, a point made in the ISU Center's original investigation.
From the data assembled here, it is possible to erect a test of the Benson/Ward hypothesis, at least a partial test. Essentially, the warning sounded by both Benson and Ward is that, if the state puts all of its efforts into reducing disparity between school districts, then the overall state/local funding level of the state for public education could either fall over time or remain static over time. This could come about in several ways. Reducing disparity requires a greater and greater reliance on the state, rather than the local unit of government, to support education. If the state government shoulders this responsibility, fine. However, in many states the legislature has been reluctant to put more funds into public education, or cannot put more funds into public education due to the increasing competition for those funds from functions such as Medicaid and various welfare programs. Should the federal government push more of these medical and welfare programs back to the state level, then state funds would be in even shorter supply for educational programs. It might be even more difficult for the state to assume the responsibility once held by the local school district. It is also possible that the "balkanization" of the state legislatures could lead to even more "gridlock" between wealthy and poor parts of the state with the result that no legislation is able to be passed to increase funding for the schools.
This is a rather pessimistic hypothesis, and essentially assumes that one cannot make gains on both "adequacy" and "equity" at the same time. To explore this hypothesis percentage change in expenditure per pupil (1978-1993) was regressed upon percentage change in the coefficient of variation of expenditures per pupil within the several states. This last dimension is a little confusing since there are negative percentage changes (reductions in disparity) at the lower end of the scale and positive percentage changes (increases in disparity) at the upper end of the scale. For the Benson/Ward hypothesis to hold, one would need to find a positive relationship between the two variables. That is, low increases in expenditure per pupil would need to be related to reductions in disparity and high increases would need to be related to increases in disparity. However, the data we have indicates not a positive, but rather a negative relationship. High increases in expenditure per pupil are related to reductions in disparity and low increases in expenditure per pupil are related to increases in disparity between school districts. Granted the relationship is not strong, being merely a Pearson product-moment correlation of - .l5. A more cautious finding might be that no significant relationship exists between the "adequacy" goal, (increasing expenditures) and the "equity" goal (decreasing disparity). Since they do not seem to be related, "adequacy" and "equity" may well have different determinants.
Figure 2 and Figure 3 constitute a Chi Square test of the significance of the state supreme court decisions. In Figure 2 winning and losing decisions are arrayed against high and low increases in percentage change in expenditure per pupil. There appears to be little effect of the decisions upon the percentage change in expenditure per pupil. The contingency coefficient is only .12 and not statistically significant. By contrast, when the winning and losing decisions are arrayed against decreases in disparity or, at best, small increases in disparity and large increases in disparity, there is an easily ascertained relationship. Winning decisions are associated with reduction of disparity and losing decisions are associated with increasing disparity. The relationship as stated by the contingency coefficient is .38 which is significant at the .02 level. Thus, the evidence in this study supports the notion that the state supreme court decisions help to reduce expenditure disparity between school districts within states, but are not necessarily related to increases in average expenditures per pupil in those states.
Anecdotal Evidence
In addition to the statistical analysis, anecdotal evidence was gathered to shed more light on the claim that litigation has been effective in obtaining increased financial support for a state's schools. To be included in this part of the study, a state needed to meet two criteria. First, it needed to be one of the 14 states in Categories I and II on the status report (Appendix A). Since the data analysis included the 1990s, it was decided that, with the passage of time, intervening conditions might have adversely affected the earlier gains, so the survey should be directed toward the more recent cases, thereby eliminating California (1977), Connecticut (1977), Washington (1978), and Wyoming (1980). The second criterion was that the statistical analysis gave evidence of either an increase in per pupil spending, a reduction in disparities between school districts, or both conditions. Table 3 lists the rankings among the 11 states in which anecdotal materials were collected.
Since the data placed Connecticut among the highest on both criteria, it was included in the interviews. The influence of the landmark decisions in California are reflected in the later cases in the analysis, so a brief comment about Serrano is included.
CALIFORNIA: The impact of Serrano v. Priest (1971) in the early 1970s has had a profound effect upon school funding systems in many states besides California. During the so-called "first wave" of litigation, even states which did not have lawsuits pending were awakened to the fact that their finance systems might be in jeopardy and there was an upsurge of reform. The Serrano dicta (which essentially stated that educational funding was a function of the wealth of the state, not the wealth of a district) became an important part of many plaintiffs' cases. In the earlier suits, however, the judiciary played a less active role in developing guidelines or deadlines which were incumbent upon the legislatures.
ARKANSAS: In the fall of 1994, the court declared the state's school-funding formula unconstitutional and the legislature was given two years to correct it. Based on past experience, some feared that, without more guidance from the court, inequities would not be remedied. After the finance system was ruled unconstitutional in 1978, the legislature enacted revisions to the state's complex formula. Despite these changes, financial disparities actually rose between 1979 and 1993. In the more recent decision, the court was more directive in expediting its rulings.
ARIZONA: A headline in Education Week stated, "Judge orders lawmakers to fix Arizona finance system." The reliance on property tax to pay for education was found to be unconstitutional because it produces disparities, especially in the qualities of school facilities. Several remedies have been suggested, but the finance issue was delayed until the 1995 session of the legislature.
CONNECTICUT: The threat of litigation in other states in the early 1970s may have caused the legislature to "start the ball rolling" on school finance reform, but the supreme court decision in Horton v. Meskill (1977) brought it to a climax. The flat grant system was dropped and an equalization formula was initiated. The formula took into account the personal incomes of the various communities and targeted money toward those where the need was greatest, thereby decreasing the disparity between districts. The strong economy of the state in the 1980s fostered increased funding. When the economy "took a nose dive" in the early 1990s, the legislature was committed to increased funding. A personal income tax was enacted, the sales taxes were decreased, but the property taxes remained about the same. The continued strong support, in spite of an economic slump, might be attributed to the somewhat unique political climate in this state which has been described as its "consensual nature of politics."
KENTUCKY: The Kentucky Education Reform Act has been called the "national model of school reform." The decision in Kentucky was the beginning of a trend in which courts began playing a more prominent role in school finance litigation and legislative solutions. As a result of the court's findings, a new formula was established. Each district was guaranteed a specified minimum amount of money per pupil. State funding was provided for mandated programs. Local districts must contribute a fair share by taxing at a specified minimum rate and may raise additional funds, with matching state funds provided in some situations. While those elements of the reform which deal with other than fiscal matters are still debated, there is no question that the funding increased. Of the states surveyed, Kentucky ranks first on reduction of disparities and among the highest in increases in per pupil expenditure.
MASSACHUSETTS: The Supreme Court's ruling emphasized that the state has primary responsibility for education. The education reform plan sets a foundation level which is to be reached by the year 2000. The state will play a greater role in making up for differences between wealthy and poor districts and the state has specified a minimum amount that local governments must appropriate to participate in the state's education funding system.
MONTANA: In 1989, the Supreme Court found, among other things, that the funding system was forcing an over-reliance on property tax levies. The legislature responded by rewriting the funding system, but it was also found to be unsatisfactory. During the 1993 session, a radically revised finance system was enacted. It provides for an "optimum" funding level and requires all districts to spend between 80 percent and 100 percent of that level. To meet this requirement, some districts are restricted from spending more than the standard and some districts will be forced to increase property taxes.
NEW HAMPSHIRE: Historically, this state's role in education has been limited. The court ruled that education is a state function. While there have been proposals to increase the level of state support, the legislature has been slow to respond in part because the state has no sales or income taxes and the political climate is un-supportive of enacting new taxes. One possible option is to collect and distribute some property taxes on a statewide basis. The court remanded the tax-equity question to the trial court.
NEW JERSEY: Repeatedly, the Supreme Court has ordered the legislature to remedy the inequities among its school districts. This failure to implement a funding reform reflects the "complexity and political contentiousness of school finance in New Jersey, where the issue has long preoccupied state lawmakers and judges." (Education Week, April 6, 1994) In 1994, the finance system was ruled unconstitutional for the third time. This time, the court specified that the legislature must make substantial equivalencies in per pupil spending by the 1997-98 school year.
TENNESSEE: The court provided general guidelines and left the details to the legislature. The Basic Education Program and a half cent sales tax increase were enacted in 1992. There has been a scheduled increase of 15 to 30 percent in overall state funding which will be phased in over a period of six years. The formula requires little additional effort from local government; however, many local governments have increased their support. The reduced disparity between high and low spending districts has been noticeable, but the major declines in disparity will occur in the next three years. (Data do not show this, probably because the effects of the suit are more recent than the data used.)
TEXAS: Texas has seen tremendous equity gains in the past five years. Most of the gains have been achieved through "leveling down." The court decisions of 1989, 1991, and 1992 did not mandate an increase in state funding. Every year since the Edgewood v. Kirby decision, there has been an increase in school funding, but the source of this has come largely from local revenues. The school finance formulas reward increased tax effort and increased the required local share tax rate. The local revenues are shared with other school districts in substitution for state aid.
WEST VIRGINIA: The decision in the 1980s has been "hailed as a revolutionary step toward ending funding disparities." (Education Week, Feb. 15, 1995) Unlike some of the earlier cases in other states, the court was very specific about the task of the legislature. As the preceding data indicate, great strides were taken to provide an equitable and adequate education, but the legislature was unable to sustain these strong beginnings. Therefore, new compliance legislation was filed in 1994.
SUMMARY: These gleanings from the media and from telephone interviews with knowledgeable persons in the states bear out the observations of those who have followed activities in the state legislatures. Mary Fulton (1994), Policy Analyst of the Education Commission of the States, has stated that "Court play a bigger role in finance." In an article of that title, she says that in more recent cases, "courts now are taking a deep interest in the problems with and solutions to school finance...In addition, many court decisions are presenting state leaders with `recommendations' for rewriting funding systems...Courts are sending legislators back to the drawing table and plaintiffs are refiling lawsuits until acceptable solutions are presented."
Some Unanswered Questions
Every empirically-based piece of research raises more questions than it answers and this is no exception. It was known before beginning this effort that some states (California) had reduced their disparities between school districts dramatically, in recent years. It was also known that some states (Illinois) had experienced great increases in those disparities. In this and related research, it has been established, at least to some degree of satisfaction, that the constitutional litigation is one factor in explaining these differences between states. No claim is put forth, however, that the constitutional litigation is the only factor operating to distinguish betweens states with regard to educational disparities. With the notable exception of the Moskowitz study, there is simply not enough longitudinal research on disparities within states to draw firm conclusions.Logically, one knows that economic development within states is not uniform; some states have experienced much more unequal economic development than have other states. This is a complicated subject that takes one rather far outside the world of school finance and into urban and regional economics. If educational researchers wish to follow the equity river down to its very sources, that is the direction in which they will have to head their expedition.
Neither is it known to what extent large micro-forces operating throughout the entire country have influenced these long term trends in disparities between school districts. A seminal study by the Twentieth Century Fund, Edward Wolf's Top Heavy: A Study of Increasing Inequality of Wealth in America (1995), reveals the disturbing fact that wealth concentrations are now nearly twice as great in the United States as they are in Great Britain- exactly reversing a situation that held before World War II. Wolf's study supports other evidence of income inequalities that have grown rapidly in the United States since roughly 1976. What the connections are between these large national trends toward greater income and wealth inequality and school finance is unknown. Very likely this relationship will remain unknown as long as school finance research continues to be as parochial as it has been in the past. Hopefully, the Twentieth Century Fund or some other private foundation will become sufficiently interested to explore these matters. It does not appear likely at the moment that the federal government will be willing to follow this research lead.
Conclusion and Policy Implications
Is it worth challenging the system of funding K-12 education through the courts? On purely empirical grounds, the answer is probably yes. The weight of the evidence provided in this study certainly suggests that progress can be made in reducing expenditure disparities between school districts by court action. Much less certain is the evidence that increases in funding for all school districts can be improved; that is, that adequacy as well as equity is served by this type of litigation. In some states, Kentucky and Tennessee come immediately to mind, progress can perhaps be made on both goals, equity and adequacy, by the litigation route. In other states, only one or the other of the goals may be served.However, before rushing to the court house with constitutional complaint hotly in hand, there are a number of very sobering considerations to keep in mind. In the first place, this legal process can take a very long time and can be quite expensive. It is not at all unusual for this litigation to last a full decade and take well over a million dollars in legal fees in any given state. Further, the chances of losing the case are quite high. At present, l7 states have successfully defended their statutes against constitutional challenges and more will likely do so in the future. Traditions of court deference to legislative bodies in this area are quite strong in a number of states. What must be considered especially carefully is the effect of an adverse ruling. While evidence of beneficial effects of a ruling for the plaintiffs is extant, the effects of a strong ruling for the defendants is not so well known.
Reading recent briefs of attorneys general from around the country reveals a strong pattern in defense strategy that also needs to be taken into consideration by plaintiffs. If case precedent is poor for plaintiffs, and it is in many states, it is almost a certainty that plaintiffs will face a motion to dismiss based upon prior cases which give great presumption of legitimacy to the legislative bodies in these areas of public policy. This will mean a long struggle all the way up the ladder of judicial review to even get into court with the evidence. A trial on the merits- on the facts, that is- will often have to be sorely won in the courts since this is not given as a matter of right. Even if a trial on the facts takes place, it is almost a certainty that defense will argue that the current foundation level provides a minimally adequate education; therefore, any amount of disparity above the foundation level is irrelevant. The state will argue that, if the poorest-funded school district in the state is adequately funded, then no one's constitutional rights have been harmed. It may even be admitted, very grudgingly by the state, that education just might be a fundamental right under the constitution, but it is a right only to enter the playing field, it does not constitute a right to a level playing field.
At best, the constitution may require the state to provide an education which is adequate to meet the needs of basic participation in the representative governmental processes of the state. The individual has a right that is only to the minimum education necessary to be a good citizen. Plaintiff then faces the steep challenge of showing that education at the foundation level is not adequate for voting, freedom of speech, etc. It is very difficult in a court of law to determine just how much needs to be spent to arrive at minimally prepared citizens who are capable of exerting their civil rights.
So we ask again, is it worth fighting all those years and spending all that money? On ideological grounds rather than empirical grounds, the answer is a strong "Yes." In the first place, this matter of inequalities between school districts is an old, old wound that lies festering in the body politic of the United States and must some day be excised. In 1823, when Thomas Jefferson was only three years away from death, he described as a failure his own "Bill for the Greater Diffusion of Knowledge," which he had gotten through the Virginia legislature in l777. \2\ It failed said Jefferson because the Virginia legislature would not tax at the state level to support the system, but insisted on raising the funds for public education at the local level. That would not work said Jefferson, "because the rich will not pay for the education of the poor." Unfortunately, not much has changed since Mr. Jefferson's day.
Another reason to persist in addressing the problem is because, quite frankly, it is dangerous to defer abjectly to legislative bodies in matters as central to the health of the Republic as is education. Thomas Paine (1995) reminded us of this, in the early days of the Republic, when he noted that, while tyranny of the executive branch was more likely than tyranny of the legislative branch, the latter was not an impossibility. That was especially true, said Paine, when the legislature had been in the hands of a single party for some time. The fact of the matter is that, every once in a while, we need to be forcefully reminded that in the United States we do not have a British parliamentary system. The founding fathers intended that all three branches of government (executive, judicial, and legislative) be used for the solution of public policy problems. These cases are in the state courts because a significant part of the citizenry believes that their concerns have not been satisfactorily addressed by the various state legislatures. Many observers feel the "gridlock" on school finance matters is increasing not decreasing; therefore, the appeal to the courts is likely to continue.
Finally, these cases are needed as a means to re-examine and possibly reassert the "doctrine of unique function." Attributed to the late Charles H. Judd (1934) of the University of Chicago, that doctrine argues that public education is like absolutely no other public service. It is the only public function that has its own article in every single state constitution in this nation. The founding fathers of every state apparently believed that there was something very special about education that deserved this kind of unique legal treatment in the states' constitutions. For many decades, these education articles lay almost unlitigated, really almost forgotten. The education articles were occasionally used to justify taxation to support public education, but for little else. Now, citizens are engaged in asking the several supreme courts of the 50 states just what these education articles really mean. Why were they put there in the first place? Are they simply vague goals, or do they constitute real mandates upon the state governments to do something? Do they constitute fundamental rights and, if so, how do they relate to other rights in the constitution?
It is also true that many of the plaintiffs sincerely believe that education is not just "a" fundamental right among a number of others, rather they believe that it is "the" fundamental civil right. That is, it is not possible to have a meaningful right to vote, to free speech, to freedom of the press, etc. without an adequate education. For these individuals education goes to the very heart of the relationship between an individual and his or her government and, thus, qualifies as a fundamental right. Granted, it is mostly those on the liberal side of the aisle who press that particular line of argument, but conservatives are not at all left out in this doctrine. For conservatives, education is the source of an individual's ability to restrict the size and effect of government, because, without an adequate education, the individual citizen cannot effectively defend his or her liberties against the incursions of the state. Ultimately, the conservative sides with Jefferson who said, "a nation that expects to be ignorant and free asks what never was, and never will be." Paradoxically, it may be necessary to actually expand spending on education in order to restrict spending in other governmental functions. "Mr. Republican," the late Senator Robert Taft, used that argument in defending many of his pro-education spending votes in the U.S. Senate.
Educators often view the world through a very narrow lens. This constitutional litigation will continue because it swells up from the magma of this society, from public policy problems never solved from the very opening days of this Republic. Viewed in this light, the constitutional challenges are serving a very useful function. Just like volcanoes, they relieve the pressure beneath the surface that would otherwise tear the Republic apart. We should be thankful for them.
Notes
1/ Through the good offices of Stephanie Stullich, data from an unpublished study by Jay Moskowitz (commissioned by the U.S. Department of Education) was made available for the purpose of this investigation. Specifically, the coefficients of variation on state and local revenues per pupil for each state, 1980 and 1992, were used to compute percentage change in those coefficients. Since the most important findings in this report hinge upon the changes in those coefficients, the authors are properly appreciative of the efforts of both Stullich and Moskowitz.[Back]
2/ The Virginia legislature did not get around to final consideration of Thomas Jefferson's full educational proposals until 1817. On February 20th of that year, most of his design for public education in Virginia was defeated. The aging Jefferson expressed his disappointment both in his autobiography in 1821, and in a number of personal letters; for example, his letter to General James Breckinridge in that same year. See The Writings of Thomas Jefferson, 1984, The Library of America, NY, NY.[Back]
References
Fulton, Mary L. Fall 1994. "Courts Play Bigger Role in Finance." State Education Leader 13(2). Education Commission of the States.Heise, Michael. Fall, 1995. "The Effect of Constitutional Litigation on Education Finance: More Preliminary Analyses and Modeling" Journal of Education Finance 21(2): 195-216.
Hertert, Linda, Carolyn Bush, and Allan Odden. Winter 1994. "School Finance Inequities Among the States: The Problem from a National Perspective." Journal of Education Finance.
Hickrod, G.A., Edward R. Hines, Gregory P. Anthony, and John A. Dively. Fall 1992. "The Effect of Constitutional Litigation on Educational Finance: A Preliminary Analysis." Journal of Education Finance 18(2).
Hickrod, G.A., R. Arnold, R. Chaudhari, J. Meng, and G.B. Pruyne. December 1994. A Firebell Ringing in the Night: Increasing Inequalities in Illinois School Finance. Center for the Study of Educational Finance. Illinois State University. Normal, IL.
Jefferson, Thomas. 1984. The Writings of Thomas Jefferson. The Library of America. New York: NY.
Judd, Charles. 1934. Education and Social Process. Harcourt Brace.
Paine, Thomas. 1995. "On the Affairs of Pennsylvania, 1786." The Collected Writings of Thomas Paine. The Library of America, New York: NY.
Peternick, Lauri. 1995. "The Effect of Overturning Educational Funding Practices Through the State Courts on Overall Per Pupil Expenditures." Paper prepared for the 1995 annual meeting of the American Education Finance Association in Savannah, Georgia.
Riddle, Wayne and Liane White. Winter 1994. "Variations in Expenditures Per Pupil Within the States: Evidence from Census Data for 1989-1990." Journal of Education Finance.
Ward, James Gordon. 1990. "Implementation and Monitoring of Judicial Mandates: An Interpretative Analysis," The Impacts of Litigation and Legislation on Public School Finance. Ed. J.K. Underwood and D.A. Verstegen. Harper and Row.
Wyckoff, James H. 1992. "The Intrastate Equality of Public Primary and Secondary Education Resources in the U.S., 1980-87." Economics of Education Review 2(1). rendered a decision for the plaintiffs, but reserved many issues for a later hearing. The defendants appealed the trial court's decision, and on June 21, 1994, the Missouri Supreme Court dismissed that appeal on the grounds that the judgement below was not final.
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