Have Judges Overstepped Their Authority on Education?
Nearly every state has faced lawsuits over school funding. But only in Kansas have judges tried to quantify the quality of education.
Kansas politics has been consumed for the past 40 years by lawsuits over how to pay for elementary and secondary education. Kansas is not exactly alone in this category; all but five states have been sued over school financing at one time or another. But the level of obsession in Kansas is somehow different. No matter what the state’s legislators are talking about at a given moment, school finance hangs over them like a menacing storm cloud that won’t go away.
That’s certainly been the case this spring, as the legislature has scrambled to comply with a March state Supreme Court decision declaring that school funding levels overall were too low and that they varied too much from one school district to another. The court gave the legislature until July to fix the imbalance, a fix that will probably cost something in the neighborhood of $130 million. Within a few weeks of the court’s decision, lawmakers found enough money in the treasury to meet the deadline. But behind the court order lurks another case, one in which the entire state school system is being challenged as inadequate to the needs of Kansas children. That case, currently in state district court, has the potential to extend the Kansas school finance dispute for years to come.
It isn’t easy to make sense of all this, but let me try.
The history of educational spending battles in Kansas goes all the way back to 1973 -- before some of the state’s current legislators were even born. A district court in Johnson County ruled that school funding levels were unconstitutional because children in poorer counties didn’t receive as much aid per student as those in rich ones. The legislature responded by passing the School District Equalization Act, aimed at evening things out among the 105 counties around the state.
That kept the lid on for a while. By 1990, however, it had become obvious that the equalization act had failed to do much equalizing. In the wake of the law, per pupil funding still ranged from $2,700 in some counties to $12,000 in others. The legislature tried again. In 1992, it passed a law establishing a minimum level of state aid per student, and declaring that from then on, state funds would be the main ingredient in local school budgets.
By then, there was a new term in the school finance lexicon: “adequacy.” Education activists began filing suits charging that no matter how equal or unequal a state’s method of funding distribution, the whole system might be failing to provide an education sufficient to meet every child’s needs.
While most states already had some form of adequacy language written into their constitution, Kansas was especially vulnerable.
Its 1966 constitution declared that “the legislature shall make suitable provision for finance of the educational interests of the state.” In 2005, the state Supreme Court ruled that Kansas wasn’t doing that. The legislature agreed to spend another $140 million a year to fix the problem. The court said that wasn’t enough, so the legislature threw in $147 million more. That appeared to settle the issue.
But only for a few years. When the recession hit in 2008 -- and especially when Republicans took full control of state government in 2011 -- the legislature found other things it wanted to spend money on, especially tax cuts aimed at luring new businesses to the state. The state’s base formula for aid to school districts fell significantly, from $4,492 per pupil to $3,838.
Again the state found itself in court. Again it lost. This past March, a panel of district judges not only concluded that legislators needed to fulfill the requirements of the 2005 funding agreement, but suggested that the whole system of funding might be inadequate under the terms of the 1966 constitution. The state Supreme Court agreed on the funding question and sent the adequacy issue back to the district court for further adjudication.
So this is where Kansas stands now. It has found $130 million to comply with the July 1 deadline. But it may have to defend itself against legal arguments that it needs to establish an entirely different system of funding public education.
All of this raises two very interesting and important questions. One is whether equity in school systems can ever be measured by precise allocations of dollars and cents. The other is whether courts have the moral authority or pedagogical expertise to tell legislators how to run their political processes.
The dollars-and-cents approach to school equity remains alive and well in several state capitals around the country. Courts in Washington state have already ordered a massive increase in K-12 school spending by 2018; the legislature and governor have spent the past several years trying to figure out how to comply. The Texas Legislature is struggling with a court ruling from 2013 that the state was underfunding K-12 education by more than $5 billion.
The legislature raised $3.4 billion after the decision was issued; a state judge is considering the constitutional merits of that increase. In all, some 11 states are currently in court defending themselves against charges of unconstitutional funding levels.
On the question of whether equalizing district-to-district support within a state establishes a fair system of public schools, the tide is beginning to turn to the negative side. Over the past decade, an increasing number of courts have ruled that however a state’s educational funding is distributed, the ultimate constitutional question revolves around whether the system as a whole meets the standards of quality enshrined in the state’s constitution and not around how even per pupil spending is from district to district.
Which is right where Kansas sits at the moment. The Kansas Supreme Court decision in March warned the state’s lower court not to accept dollar amounts as prima facie evidence of school equality. Instead, the Supreme Court declared, the ultimate question of school fairness must take into account the results that schools achieve when it comes to statewide student performance.
Results-based school finance is not a new idea. It dates back in the legal system to 1989, when the Kentucky Supreme Court decided what has come to be called the Rose case, in which the court laid out a list of student learning goals that might serve to determine whether a school system was doing its job. Among the seven goals were oral and written communications skills; knowledge of economic, social and political systems; self-knowledge; grounding in the arts; and understanding of government processes.
As part of its March ruling, the Kansas Supreme Court declared that the adequacy component of the state constitution will be met when “the public education financing system provided by the legislature for grades K-12 -- through structure and implementation -- is reasonably calculated to have all Kansas public education students meet or exceed the standards set out in Rose.”
This is different from decisions that other supreme courts have imposed before. Numerous states, including Kansas, included the Rose standards in some form in their official statements of educational goals. But no court up to now has attempted to seriously quantify the Rose standards -- to use the numerical results to make a legal judgment as to which schools within a state are meeting their constitutional obligations.
It sounds reasonable on its face: Set a standard for what children should be learning and then hold the entire state’s education system accountable. But as a moment of intelligent consideration will make clear, these standards are utterly unworkable as an instrument of judicial or even legislative policy. The list of questions that they raise is practically endless.
Are the standards relative or absolute? Does a state that finishes 47th among its peers in imparting economic knowledge to high school students fail the Rose test simply by virtue of ranking near the bottom? Or is there some fixed number that constitutes a passing grade? If so, where are the tests supposed to come from? If more than one test is available, who chooses which one to use -- the state’s education officials or the court?
It gets worse. What about self-knowledge? As far as I know, no one has ever developed a standardized test to measure this, and I hope no one ever does. But it is out there as one of the standards schools have to meet or exceed. So is “grounding in the arts.” How deeply grounded in the arts will students have to be before the court declares the state is spending enough money on the effort?
Then there is the puzzling absence of math and science. These, arguably, are the two areas of study in which some form of standardized test might be useful in assessing a state’s school performance, but they are notably missing from the Rose standards. In retrospect, it’s easy to see how states and court systems get themselves into predicaments like this. An obvious inequity exists -- the richer counties in a state are giving their pupils several times as much educational support as the poorest ones. The court declares a violation of equal rights, and it imposes the only remedy it has available: equalization of funding across the state. After a few years it is clear that a more equal funding system doesn’t rectify the imbalance in school performance, and so the court goes searching for other options. The ultimate result is something impractical, like the Rose standards. Judges are usurping a function that ordinary common sense suggests belongs to the legislature and the governor.
This is how a state like Kansas becomes embroiled in a school finance debate that goes on for 40 years and lurches steadily further from any semblance of a solution. Barring an unlikely burst of workable consensus, it seems safe to predict that some version of the same debate will still be taking place in Topeka 40 years from now.
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