Josh Dunn and Martha Derthick says that there is a big difference between adequacy and equity lawsuits: “As political events, equity cases compelled the redistribution of spending for education, inciting a strong reaction from those property-rich school districts with the most to lose. Adequacy cases have the clear political advantage: they aim to enlarge the educational pie. “
Many in the education world like to complain about No Child Left Behind. But it has become the key to riches:
The standards-and-accountability movement—which spread nationwide through the 1990s and reached a climax with passage of the No Child Left Behind Act (NCLB) in 2002—has provided a political stepstool to adequacy suits.
Why haven’t separation-of-powers arguments gotten further in Kansas, and elsewhere? The incentives aren’t there for the people who have the power to do something, and those who have the power are divided:
Legislatures per se are not normally defendants in the lawsuits, and so cannot mount their own defense in court. State officials who are in charge of the defense do not necessarily have strong incentives to conduct it vigorously. No attorney general has yet won a large following by opposing more spending on schools or supporting the constitutional principle of separation of powers. State superintendents of instruction, who often have a great deal of influence in shaping the defense, have even less incentive to oppose increased spending on schools.
Dunn and Derthick turn their attention to objections to court intervention are handled: “the political question doctrine does not have much force of its own. Courts deploy it or ignore it as they wish and use it only if they are predisposed not to enter into a controversy.” But “Adequacy tied to standards solves the legal and political problems of justiciability.”
Here’s what the pair have to say about Kansas:
On close inspection it becomes clear that there is no evidence of inadequacy without evidence of inequity. Two prominent and recent adequacy cases—from New York (Campaign for Fiscal Equity v. New York) and Kansas (Montoy v. State)—show that when courts attempt to overcome the problem of justiciability either they will founder trying to establish what an adequate education actually is or they will retreat to the legally safe but politically dangerous standard of equity.
[snip]
In Montoy v. State, the Kansas Supreme Court blurred the line between equity and adequacy even more. The Kansas legislature allowed a variety of different taxes based on local circumstances such as high cost of living, low enrollment, and extraordinarily declining enrollment. But the state supreme court struck all of these down because of their “disequalizing effects.” Normally such accommodations would be allowed under rational basis scrutiny, but the court objected because they could possibly lead to unequal amounts of spending. The supreme court did state that “once the legislature has provided suitable funding for the state school system, there may be nothing in the constitution that prevents the legislature from allowing school districts to raise additional funds for enhancements to the constitutionally adequate education already provided.” However, the court gave no indication at what point “suitable funding” would be reached such that some school districts could spend more than others. For the time being, the court is demanding more spending alone to equalize expenditures across school districts.
What about clauses in the state constitution, along the lines that the state must provide for a thorough and efficient, or sound education?
The Kansas constitution (Article 6) is equally vague: “The legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools, educational institutions and related activities which may be organized and changed in such manner as may be provided by law.” As far as finance, “The legislature shall make suitable provision for finance of the educational interests of the state.”On constitutional language generally, the authors are harsh: “Since education clauses provide little textual substance, it is unsurprising that their analysis by courts is occasionally nothing more than a bald assertion obscured by fallacious reasoning.”
They turn to Kansas:
An example of judicial action with inadequate information is to be found in Kansas, where a willfully blinkered court chose to rely on one consultant’s study, by the firm of Augenblick & Myers (A&M), in ordering how much the legislature should appropriate. In Montoy v. State, the Kansas Supreme Court said it would be guided by the A&M study because 1) it was “competent evidence presented at trial”; 2) the legislature “maintained the overall authority to shape the contours of the study”; 3) it was “the only analysis resembling a cost study” before the court; and 4) the state board of education and department of education had concurred with the results. The implication of this reasoning—other than that legislatures must follow the recommendations of studies that they commission—is that the court was unwilling to seek as much information as possible. The court assumed the reliability of the study and impugned the motives of members of the legislature who disputed its findings. It repeatedly said that it must make its decision “based solely on the record before us,” an artificial but convenient standard peculiar to litigation.
The raising and spending of taxpayer dollars is inherently a political act. That is true whether the money is to be spent on welfare programs, roads, economic development schemes, health programs … or education.
Political actions should be taken by politicians. The place for politicians in our system of government is in the executive and the legislative. One result of these lawsuits, using No Child Left Behind, may be the nationalization of education.
Source: Judging Money, Education Next, 2007 Volume 1.
