September 2011 Bar Bulletin
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September 2011 Bar Bulletin

Education Finance Litigation: Adequacy v. Equity

By Lara Lebherz


It was 1896 when the U.S. Supreme Court put forth the infamous "separate but equal" doctrine in Plessy v. Ferguson. Fifty-eight years later in 1954, Chief Justice Earl Warren explained in Brown v. Board of Education that separate educational facilities were inherently unequal and perpetuated a sense of inferiority that affected the motivation of children to learn.

In 2012, another 58 years will have elapsed since Brown paved the way for integration and the Civil Rights Movement. The current system remains distant from the realization of public education as, in the words of educational reformist Horace Mann, "the greater equalizer of the conditions of men, the balance-wheel of the social machinery." The end of segregation was a victory, but we are still far from a fair educational system.

The decades since Brown have given rise to significant litigation around how to achieve Mann's vision of education as a democratizing force. Rightfully, these efforts often come down to funding debates. At the hearing of McCleary v. State before the Washington Supreme Court in June of this year, Justice Charlie Wiggins asked, "How do you really determine whether the legislature is amply providing for the education of all the children in the state without looking at dollars? I don't understand that." Tom Ahearne, lead attorney for the Network for Excellence in Washington Schools, simply responded that you cannot. "You have to look at dollars. Dollars [are] the key. Resources [are] the key."

Educational finance is central to any effort toward equal educational opportunities for all children. The proper way to frame that examination is a question of strategy, which can make or break litigation-driven reform efforts. "It's really easy to get people to rally around the idea that ‘schools serving poor kids need more money,'" explains Sarah Yatsko, research analyst at the Center for Reinventing Public Education (CRPE). "It's much more difficult to talk about how to more equitably use the money that we already have."

A distinction exists between education finance litigation from an adequacy perspective versus one of equity. "Adequacy lawsuits seek to add more money to the pot, while equity lawsuits address splitting the existing pot in more or different ways," says Yatsko. "There's not a lot of room to talk about adequacy in our current budget climate, although a lot of litigation is still about adequacy and not equity."

Equity lawsuits could be a more effective approach to achieve concrete results for educational justice, although adequacy lawsuits are generally brought on behalf of disadvantaged students served by urban public school systems. In Courting Failure: How School Finance Lawsuits Exploit Judges' Good Intentions and Harm our Children (Hoover Institution Press, 2006), Marguerite Roza and Paul Hill, executive staff at CRPE, address adequacy versus equity lawsuits in a chapter entitled "How Can Anyone Say What's Adequate If Nobody Knows How Money Is Spent Now?"

They write, "Though a lot of money is at stake in school finance disputes, the claimants usually ignore the biggest pot of money available to support schools: current school funding. As has become evident in recent years, there is very little clarity on exactly how this money is spent, who receives what, or how effective alternative uses of funds are."

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