School Equity Lawsuits Face Setbacks: Have Judges Closed the Courthouse Door to Students?

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Using the courts to bring sweeping change to schools — from challenging teacher tenure to arguing over how much money is spent on education and how fairly it is distributed — has proved increasingly difficult in recent years.
Some states, including Tennessee and Pennsylvania, have school funding cases pending; earlier this year, Chicago Public Schools filed a suit against the state of Illinois for alleged unfair funding. Kansas plaintiffs just won a judgment that the state’s schools aren’t receiving enough money.
(The 74: Race & Class — Chicago Schools Sue State, Claim Minority Kids See 78 Cents Per Dollar Sent to White Schools)
Despite that, a larger trend has emerged: A string of state courts have simply rejected lawsuits that argue state funding systems are unconstitutional.
“In the last eight years or so, courts appear to be becoming wary and weary of the large-scale [school funding] adequacy-style litigation,” said Bill Koski, a Stanford University professor who represented the losing plaintiffs in a California funding case.
“Even in … jurisdictions where there’s a plaintiff win, the story is more complicated,” he said. Victories haven’t always led to new infusions of money, but rather to drawn-out battles over how to carry out the decision. This comes even as a raft of new research shows that favorable funding decisions resulting in more money for poor districts can help students in the long run.
At the same time, a new breed of lawsuits — like cases challenging teacher tenure — have developed. They have also been dealt several losses.
Two new cases were filed in federal court last year arguing that students in Connecticut and Detroit, respectively, are not getting an equal or decent education. Those cases are long shots, partly because they go up against a well-established holding that students claiming a poor education have little recourse in the federal courts.
Koski has floated the idea of a new path, one that combines challenges to school funding with cases arguing for substantive policy changes to things like teacher tenure. Such a marriage would require players in the education world that are typically opposed, namely teachers unions and some education reform activists, to join forces.
Taking on a ‘constitutional crisis’
Recent losses have piled up for those suing for better-resourced schools. Just in the past few years, courts in Texas, California, Colorado, and Florida1 have rejected constitutional challenges to their state’s funding systems. In California, the high court refused to even hear an appeal of a lower court decision. Funding advocates also lost in supreme courts in Missouri and Indiana several years ago.
Even when plaintiffs have won in court, those wins have not easily translated into funding gains for schools. That’s because policymakers often drag their feet or even outright disregard judicial orders.
In Washington, the state legislature has been held in contempt of court and fined $100,000 a day for not heeding the court’s ruling that a substantial pot of new money be put into the schools. (The legislature has simply ignored the fine, not paying any of it.) The case was filed a decade ago, and decided in 2012. Since then, lawmakers have feuded over how to come up with the additional revenue needed to meet the court’s demand, with the debate still going on in the current session.
In Kansas, the judiciary first ruled the state’s funding system unconstitutional in 2004, which led to years of give-and-take between the legislature and the courts. Last year, it was back to the state Supreme Court, which warned that it might shut down schools if the state didn’t ensure that low-income schools were funded equitably.
“Today, the Supreme Court finally said enough is enough,” House Democratic leader Tom Burroughs said in a statement, agreeing with the ultimatum. “Kansas school children deserve better. The Legislature should take whatever action is necessary to keep our schools open …”
Lawmakers eventually passed a funding fix to avoid school closures. Signaling another showdown, however, the court recently ruled that the school system as a whole is underfunded.
New York has followed an even more circuitous path. The Campaign for Fiscal Equity filed suit all the way back in 1993 and eventually won a number of judgments before the state’s top court. A formula was put in place in 2007 to meet the decision’s requirements, but advocates say the 2008 recession derailed that, leaving schools drastically underfunded since then, to the tune of billions of dollars. Because of that, the lawsuit ended up having little or no impact on resource equity, according to one study.
Now, Gov. Andrew Cuomo’s proposed budget would ditch the court-prompted formula altogether, causing Michael Rebell, an attorney in the original lawsuit, to write in a recent op-ed that it “flouts the constitutional right of all students in New York State to the opportunity for a sound basic education.” Stripping out the formula appears unlikely to make it into the final budget, but it will continue to be underfunded.
Lawsuits like those in Washington, Kansas, and New York may lead to some additional spending — but at best they have been protracted and politically tortuous, and have fallen short of advocates’ hopes.
Kimberly Robinson, a law professor at the University of Richmond, said that’s because legislators are often beholden to politically powerful suburban voters who don’t want to see their taxes raised or funding diverted from their schools.
You have lawmakers who are being pushed by those who are benefiting from the current system to keep it the way that it is,” she said.
Koski thinks the difficulties of implementing decisions in certain states have deterred judges elsewhere from ruling for the plaintiffs.
“Courts are looking at those kinds of cases and worrying, ‘Are we putting our institutional credibility on the line? Are we essentially provoking a constitutional crisis by taking on these really big cases?’ ”
Vergara-style lawsuits take root, face their own challenges
Meanwhile, a controversial set of lawsuits have been filed in several states, pushed by those who focus not on money but on specific policy reforms. Stanford’s Koski refers to these suits as “efficiency” cases — meaning they’re based on the idea that policies should change in order to use existing dollars more effectively and efficiently.
Most prominently, the Vergara v. California case argued that state law made it too difficult to fire bad teachers, that tenure was granted too early, and that layoffs should be based on performance, not seniority. The plaintiffs claimed that these policies disproportionately harmed poor students of color. They won at trial, but the decision was overturned on appeal; a divided state Supreme Court declined to hear a second appeal.
A similar lawsuit in Minnesota was quickly thrown out last year, though one in New York made it through initial attempts to dismiss it. A suit has also been filed in New Jersey challenging the use of seniority to make layoff decisions; it is still pending.
A case in Massachusetts arguing that the state policy capping charter schools is unconstitutional was dismissed by a state judge in October, a few weeks before Massachusetts voters defeated a measure to lift the cap.
To date, these lawsuits have not yielded any clear victories, but Koski said it’s too early to say how successful they will be as a whole.
Ironically, perhaps the biggest success for “efficiency” advocates was a case in Connecticut that started as a straightforward funding suit, backed by groups, including teachers unions, that traditionally support directing more money to schools.
But in a surprising and highly publicized decision, the judge demanded dramatic policy changes, including in the way teachers are evaluated and paid. It was a mixed ruling for school funding advocates: The court said additional money wasn’t necessary but that poor districts needed to get more from the existing pot.
The case — which was filed in 2005 — is now before Connecticut’s Supreme Court.
Koski said he’s skeptical it will survive appeal.
“It was far too sweeping to stand up — special [education], to teacher evaluation, to standards,” he said of the decision, which in some instances mandated changes that few if any other states had successfully implemented, like a differentiated teacher evaluation system or high school graduation standards aligned to college readiness.  
Recent efforts by the Connecticut governor to shift funds from wealthier areas to high-poverty city schools has, predictably, faced a fierce backlash.
Arguing for federal intervention
In San Antonio v. Rodriguez, a 1973 case, a closely divided U.S. Supreme Court ruled that because it’s not spelled out in the constitution, education is not a federal right. That allowed the court to uphold funding inequities between districts and schools. Since then, advocates have turned to state courts, where state constitutions almost always do provide some sort of right to education.
Now, though, two new federal lawsuits are premised on the idea that the federal judiciary should have a greater role in ensuring school quality. In one case, Detroit students are suing in federal court based on a constitutional “right to literacy,” which they say has been denied to them by the city’s schools, among the lowest-performing in the country.
“The abysmal conditions and appalling outcomes in plaintiffs’ schools are unprecedented. And they would be unthinkable in schools serving predominantly white, affluent student populations,” the suit claims. “In short, the schooling afforded to plaintiffs is both separate and unequal.”
Another federal case, filed by the same group that spearheaded the Vergara suit, argues that Connecticut unconstitutionally restricts charter and magnet schools from expanding, and stops students from enrolling in other districts.
“By forcing Plaintiffs and thousands of other students to attend public schools that it knows are failing, while impeding the availability of viable public educational alternatives,” the complaint states, “Connecticut is violating students’ federal due process and equal protection rights.”
Both cases were filed last year and are still pending.
Robinson, the University of Richmond professor, and Harvard professor Charles Ogletree have argued that the Rodriguez case should be overruled, and replaced with a more active approach by the federal judiciary. In an essay for Education Next, they point out that few states provide substantially more money to poor schools.
“Although the Rodriguez court trusted states to ensure equal educational opportunity, this trust has proven misplaced,” they say.
A response piece by three lawyers at the law firm Eversheds Sutherland contends that federal courts are neither equipped nor empowered by the constitution to ensure equity in schools.
“Proponents of a federal right to education presume that federal judges would succeed where local policymakers have supposedly failed,” they write. “But the federal judiciary lacks the capacity and expertise to solve entrenched problems like the achievement gap from the bench.”
It is a likely a wholly academic debate.
With the election of President Trump — who has nominated conservative judge Neil Gorsuch to the Supreme Court — reversing Rodriguez may have turned from difficult to nearly impossible.
A Trump appointee, Robinson said flatly, “will not overturn Rodriguez.”
A new frontier: “reforms plus money” lawsuits?
The differences in lawsuit approach — traditional school funding cases versus the new breed of efficiency suits — fall along education’s usual battle lines, with teachers and public school advocates typically on one side and choice and accountability supporters on the other. These camps are often rivals in court as well.
Koski sees a potential middle ground in cases that blend both perspectives.
“I’m not necessarily endorsing this position right now, but I wonder aloud … if there’s a grand bargain to be struck — where you move for reform plus money, as opposed to one or the other,” he said.
It’s an open question whether judges — much less teachers unions and school reformers — would be amenable to this strategy.
To some, courts turning away from setting education policy and funding levels is a victory, a triumph of the wisdom of judicial restraint.
“By limiting judicial intervention into education policymaking, the court not only remained true to the intent of the state constitution but it also saved itself from having to make determinations on a litany of in-the-weeds issues that it would almost certainly get wrong,” Lance Izumi, of the conservative Pacific Research Institute, wrote in the wake of the California funding decision.
But a wave of new research has shown that past judicial interventions that led to infusions of new money in schools produced big gains for students. Three recent national studies have come to this same conclusion.
“That is the irony,” said Koski. “What can I say? We lost in California. We never got our day in court. We would have loved to have shown that [research].”
Disclosure: The lawsuits challenging teacher tenure in New York and Minnesota and the seniority rules governing teacher layoffs in New Jersey are supported by the Partnership for Educational Justice, a nonprofit that was founded by Campbell Brown. Brown is the co-founder and board chair of The 74. She had no role in the editing or reporting of this story.
1. The Florida case is currently being appealed.

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