Forty-five years ago, the California Supreme Court in the landmark Serrano v. Priest decision declared that education is a fundamental right and struck down the state’s grossly inequitable school funding scheme. Since then, more than thirty state supreme courts have interpreted their state constitutional Education Articles and Equal Protection provisions to determine whether their states are providing a constitutionally equitable or adequate education to their states’ children. In many of those states the judicial decisions prompted significant school finance reform and improvement in the educational opportunities of students. Yet there remains a yawning achievement gap between low-income and more affluent children and many children are not being prepared to participate in our twenty-first century economic and civic life.
Recognizing the complexity of reforming our school systems and their own institutional obligations and limitations, the courts remain concerned about educational resource inequity, but they are also beginning to look beyond money to reconsider their role in reforming public schools. Two decisions from the past three weeks—one from the California Supreme Court and another from a Connecticut trial court—signal this new and, perhaps, more cautious approach that courts may be taking to modern “adequacy” finance litigation.
Closing the Courts’ Doors (for now) in California
On August 22, 2016, in a disappointing 4-3 vote, the California Supreme Court declined to review a decision of the California Appellate Court that upheld the dismissal of a lawsuit that challenged the constitutionality of what I believe is an irrational, insufficient, and unstable school finance system in the state. (Full disclosure: I serve as co-counsel for 64 individual students and families who are plaintiffs in the litigation.) The litigation, which includes the two companion cases of Robles-Wong v. California and Campaign for Quality Education v. California, began in 2010 when an unprecedented coalition of students, families, grassroots organizations, school districts, teachers, administrators, and school board members brought a suit against the state and governor, alleging that the state had failed its duty under Article IX of the California Constitution to provide a “system of common schools” that provides all students with an educational opportunity that would allow them to participate fully in the modern economy and the state’s civic institutions.
In 2011, the trial court dismissed the plaintiffs’ claim that the state’s school funding scheme denies California’s children that fundamental right. And on April 20, 2016, the California Appellate Court upheld that dismissal on a 2-1 vote, finding that “sections 1 and 5 of article IX do not provide for an education of ‘some quality’ that may be judicially enforced by [plaintiffs].” Those provisions, the majority explained, “do not allow the courts to dictate to the Legislature, a coequal branch of government, how to best exercise its constitutional powers to encourage education and provide for and support a system of common schools throughout the state.”
Plaintiffs sought review of that decision and three weeks ago, a 4-3 majority of the California Supreme Court declined to review the decision and declined to determine whether the state’s Education Article has any substantive meaning. Because the majority did not provide reasons for its refusal to take review, we are left to speculate why the California Supreme Court let the Appellate Court decision stand, but we do know that the majority is taking a more cautious approach than its Serrano predecessors and most other state high courts.
From plaintiffs’ perspective, the silver lining in the decision is that the door to California courts may only be temporarily closed, as the impassioned dissents penned by Justices Goodwin Liu and Tino Cuellar suggest that the issue may return to the courts should the conditions in the state’s public schools fail to improve. As the dissents point out, California schools are ranked near the bottom nationally in cost-adjusted per-pupil spending, staff-to-student ratios, and academic performance. This, the dissents argue, may not be resolved by the political branches. Justice Liu wrote, “It is regrettable that this court, having recognized education as a fundamental right in a landmark decision 45 years ago (Serrano v. Priest), should now decline to address the substantive meaning of that right. The schoolchildren of California deserve to know whether their fundamental right to education is a paper promise or a real guarantee.” Justice Cuellar opined that “[i]t is especially important for California’s highest court to speak on this issue. Our state educates one-eighth of all public school students in the country. . . . Many of those kids who come from low-income families find themselves concentrated in particular schools or districts that, despite the best intentions, fail to deliver an education remotely worthy of the students they are serving. These realities make it all the more critical that the representative branches play the crucial role that belongs to them, but with greater clarity about the scope of the right to education –– clarity only this court can provide.”
From a national perspective, the California Supreme Court’s refusal to intervene is a setback for school reformers, but that setback may only be temporary.
It’s not Just the Money in Connecticut
On September 7, 2016, Connecticut Superior Court Judge Thomas G. Moukawsher held that many aspects of the state’s educational system were so “irrational” that they were denying children their state constitutional right to an education. The case, Connecticut Coalition for Justice in Education Funding v. Rell, was filed over a decade ago and alleged that the state had failed to provide to children in poor school districts (such as Bridgeport) sufficient resources to ensure that those children received their “fundamental” right to an education. Sending the case back to the trial court in 2010, the Connecticut Supreme Court concluded “that article eighth, § 1, of the Connecticut constitution guarantees Connecticut’s public school students educational standards and resources suitable to participate in democratic institutions, and to prepare them to attain productive employment and otherwise to contribute to the state’s economy, or to progress on to higher education.”
After a lengthy trial, Judge Moukawsher issued a forceful, 89-page opinion in which he noted that although many Connecticut children enjoy ample educational opportunities, children in 30 low-wealth towns are deprived of the constitution’s guaranteed opportunity to succeed. The current system “has left rich school districts to flourish and poor school districts to flounder,” Judge Moukawsher wrote, denying poor children a “fair opportunity for an elementary and secondary school education.” In the high-poverty city of Bridgeport for instance, “Administrators, clerks, guidance counselors and technicians are being shed. Kindergarten and special education paraprofessionals are being let go. Some schools have no extras [sic] like music and athletics left to cut. The school year is to be shortened. Class sizes are increasing in many places to 29 children per room—rooms where teachers might have a class with one third requiring special education, many … speaking limited English, and almost all … working considerably below grade level.”
The deprivation in those towns is so severe, Judge Moukawsher wrote, that the state did not even pass muster under the “low constitutional threshold” set by the Connecticut Supreme Court.
While Judge Moukawsher eloquently recognized the extreme inequities in Connecticut’s education, he stopped short of ordering the state to increase funding to its poor school districts or even establishing a level of educational funding that would ensure an “adequate” education as courts have done in many modern school finance cases. Rather, the court took aim at the irrationality of many aspects of the state’s educational system, including the state’s academic content standards and graduation requirements, its teacher evaluation and compensation systems, and its provision of special education. To remedy the situation, the court ordered the state to submit within 180 days a reform plan that establishes higher educational standards for graduation, a funding formula that is aimed at achieving those standards, a teacher evaluation and compensation system tied to student success, and a special education system that ensures children with disabilities access to an appropriate education. Notably, the order does not establish any specific funding goals or even suggest that more money is necessary (though additional money may be necessary to fund the new programs).
Is there anything we can learn from California and Connecticut? Perhaps one lesson is the further maturation of what we have historically called school finance litigation. Courts in many states, having participated in the difficult task of improving educational outcomes for children, may be getting more cautious and more focused on where educational deprivation is the greatest. Another lesson may be that money is necessary, but it isn’t sufficient. Almost paradoxically, if courts take Judge Moukawsher’s lead, they might wade into the very complex and politically charged arena of educational policy-making such as establishing standards for what it means to be career and college ready or determining how teachers should be paid and evaluated. This isn’t Serrano’s focus on dollars per pupil. While money matters, courts may be recognizing that how the money is spent matters as well. This makes sense. Money matters. It can attract and retain high quality teachers and provide up-to-date curricular materials and technology. But it may not be enough. State legislatures must ensure that the money is spent wisely, and on the children most in need, so that all children will have an opportunity to realize the American Dream.
William Koski is the Eric and Nancy Wright Professor of Clinical Education and the founding director of the Youth and Education Law Project (YELP) at Stanford Law School.