«The legal fight over school finance systems dates back to the late 1960’s starting in the federal court system.1 This initial “wave” of ...»
Overview of Education Finance Litigation
Tristan D. Greene*
Arkansas Policy Forum on Education Finance
November 18, 2002
Little Rock, Arkansas
The legal fight over school finance systems dates back to the late 1960’s starting in the
federal court system.1 This initial “wave” of litigation ended with the seminal case of San
Antonio Independent School District v. Rodriguez,2 which declared that education was not a right
protected by the United States Constitution. The second wave of litigation shifted the fight to state courts where the challenge was based on the individual-state’s constitution.3 These cases, beginning in New Jersey with Robinson v. Cahil,4 concentrated on a school finance concept known as equity. Originally, an equitable school finance system was one in which the money was distributed in a fashion that gave every student substantially equal resources. Today, an equitable school finance system is one that allows for all students to have an equal opportunity to an education no matter what the student’s circumstance is.5 To determine whether a state school system offered an equal educational opportunity, courts still most often look at the * Special Assistant to the Director of Education, State of Arkansas. The opinions expressed by Mr. Greene in this presentation are the author’s alone and do not necessarily represent the views of the State of Arkansas, her officers, or her agencies. Parts of this document are taken from a larger work in preparation entitled The History of School Finance Litigation in Arkansas. This document is not to be copied or cited without the permission of the author.
See Parker v. Mandel, 344 F. Supp. 1068 (D. Md. 1972); Burruss v. Wilkerson, 310 F. Supp. 572 (W.D. Va.
1 1969), affirmed 397 U.S. 44 (1970); McInnis v. Shapiro, 293 F. Supp. 327 (N.D. Ill. 1968), affirmed sub nom.
McInnis v. Ogilvie, 394 U.S. 322 (1969). See also William E. Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model, 35 B.C. L. Rev. 597 (1994) [hereinafter Judicial Analysis].
411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) 2 See Judicial Analysis, supra; John Dayton, An Anatomy of School Funding Litigation 77 Educ. L. Rep. 627 3 (1992); William E. Thro, The Third Wave: The Impact of Montana, Kentucky, and Texas Decisions on the Future of Public School Finance Reform Litigation, 19 J.L. & Educ. 219 (1990) [hereinafter The Third Wave]. See also, William Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977); J.E.
Coons, W.H. Clune, and S.D Sugarman, Educational Opportunity: A Workable Constitutional Test for State Financial Structures, 57 Cal. L. Rev. 305 (1969).
303 A.2d 273 (N.J. 1973) 4 See Judicial Analysis, supra, at 601-603 and the cases cited therein.
5 Arkansas Policy Forum Page 1 November 18, 2002 disparities in the amount of revenues available to school districts or the expenditures of those revenues by the school districts.6 The first major school finance case in Arkansas was part of this second wave.7 The early stage of the Lake View litigation was also a second wave case. 8 The third wave of litigation truly began in the late 1970’s with the West Virginia case of Pauley v. Kelly9 but this legal theory did not become popular until 1989.10 These new cases brought in a new legal concept that is called adequacy.11 Adequacy shifts the argument to one in which the quality of the education provided means more than the availability of an equal educational opportunity.12 Or, to put it another way, “[a]n ‘adequacy’ claim does not complain about disparities in funding among school districts per se, but instead alleges that one or more districts lack the resources necessary to provide students with adequate educational opportunities.”13 This is more than what courses are taught and at what level they are taught.
The quality of the education extends into the realms of the quality of teachers and the quality of facilities.14 Adequacy usually goes beyond the quality of the education provided to the question Michael Heise, State Constitutions, School Finance Litigation, and the “Third Wave”: From Equity to Adequacy, 6 68 Temp. L. Rev. 1151 (1995).
DuPree v. Alma School District No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983) 7 8 Lake View School District No. 25 v. Tucker, No. 92-5318 (Pulaski County Chancery Court November 9, 1994); Lake View School District No. 25 v. Huckabee, No. 92-5318 (Pulaski County Chancery Court August 17, 1998); rev’d. Lake View School District No. 25 v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000).
225 S.E.2d 859 (W.Va. 1979) 9 Three cases truly kicked off the third wave. They were in Montana: Helena Elementary Sch. Dist. No. 1 v.
10 State, 769 P.2d 684 (Mont. 1989); Kentucky: Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky.
1989); and, Texas: Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex. 1989). See also, The Third Wave, supra.
See The Third Wave, supra. See also, William Clune, The Shift from Equity to Adequacy in School Finance, 8 11 The World and I 389 (1993).
Heise, 68 Temp. L. Rev. at 1163. See also Judicial Analysis, supra; The Third Wave, supra; Rose 790 S.W.2d 12 at 211, 212.
Paul A. Minorini and Stephen D. Sugarman, School Finance Litigation in the Name of Educational Equity:
13 Its Evolution, Impact, and Future in EQUITY AND A DEQUACY IN EDUCATION FINANCE: ISSUES AND PERSPECTIVES (H.F. Ladd, R. Chalk, and J.S. Hansen, eds.) (Washington, DC: National Academy Press,
1999) at 47.
For the former proposition see Tennessee Small School Systems, et al. v. McWherter, et al. No. M2001SC-R3-CV (Slip Op. October 8, 2002) and for the latter proposition see Roosevelt Elementary School District No. 66 v. Bishop, 877 P.2d 806 (Ariz. 1994); DeRolph v. State of Ohio, 78 Ohio St.3d 193, 677 N.E.2d 733 (Ohio 1997).
Arkansas Policy Forum Page 2 November 18, 2002 of whether the education is funded at a level at which the quality education can be provided to the students – a question not easily answered.15 It is this last aspect of adequacy that this paper is most concerned.
Arkansas did not enter this third wave of litigation until very recently. Even though Lake View was filed in 1992, the case did not transmogrify into an adequacy case until very late in its history.16 This came as a shock to most, if not all, of the parties involved in the case. 17 Nevertheless the case proceeded on schedule.
In 1992, a small school district in Eastern Arkansas and its patrons filed a case currently entitled Lake View School District No. 25 et al. v. Mike Huckabee, Governor, et al.18 The initial complaint broadly alleged that the school funding system in Arkansas violated the Equal Protection and Education Clauses of the Arkansas Constitution19 as well as the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.
The case originally went to trial and judgment in 1994.20 The trial court in 1994 declared the then-existing school finance system to be unconstitutional under provisions of the Arkansas Constitution but that it did not violate the United States Constitution.21 The majority of the 1994 15 Peter Enrich, Leaving Equality Behind: New Directions in School Finance Reform 48 Vand. L. Rev. 101, 171 (1995). See also, Judicial Analysis 35 B.C. L. Rev. at 605, et seq.
16LakeView School District No. 25 v. Huckabee, No. 92-5318 (Pulaski County Chancery Court September 13, 2000). This Order was issued orally from the bench ten days prior to the start of the hearing on the merits, which was scheduled to begin September 18, 2000.
Lake View School District No. 25 v. Huckabee, No. 92-5318 (Pulaski County Chancery Court) Hearing of 17 September 8, 2000 at pages 3786 to 3877 of the Trial Record filed in Ark. Sup. Crt. No. 01-836.
No. 92-5318 (Pulaski County Chancery Court) 18 The Equal Protection Clause can be found at Ark. Const. art. 2 §§ 2, 3, and 18. The Education Clause 19 can be found at Ark. Const. art. 14 § 1.
Lake View School District No. 25 v. Tucker, No. 92-5318 (Pulaski County Chancery Court November 5, 20 1994) [hereinafter the 1994 Order]. For a more extensive discussion on the 1994 Order, see Tristan D.
Greene, Arkansas School Finance in LEGAL FOUNDATIONS FOR ARKANSAS EDUCATORS (L.R. Dickerson, A.
Greenland, R. Henderson, eds.) (Little Rock, AR: Center for Applied Studies in Education, 2000).
211994 Order at 45-51.
Arkansas Policy Forum Page 3 November 18, 2002 Order centered around three statistical measures of school finance equity used in the academic literature.22 The State appealed this ruling, but in 1996 the Arkansas Supreme Court dismissed the appeal stating that the 1994 Order was not a final appealable order and remanded the case back to the trial court for further proceedings. 23 Between 1996 and 1998 there were various motions and rulings in the case including certification of the case as a class action.24 These proceedings resulted in a 1998 trial court Order that dismissed the case as moot and denied attorneys’ fees to plaintiffs’ counsel.25 The trial court reasoned that since the last trial in the case, the General Assembly had enacted new school finance statutes that are presumed constitutional.26 Additionally, the trial court recognized that the citizenry of the State had passed Amendment 74, which materially changed the Education Clause of the Arkansas Constitution.27 Again, an appeal was taken to the Arkansas Supreme Court. In this instance, the Supreme Court ruled that the actions by the General Assembly and the citizenry did not necessarily make the case moot.28 The Court also ruled that Lake View was a unique case and attorneys’ fees should be awarded.29 Therefore, the Court reversed the 1998 Order and remanded the case back to the lower court for a trial on the merits and a determination of attorneys’ fees.30 Id. at 23-27. These statistics were the federal range ratio, the Gini index of inequality, and the coefficient 22 of variation. For a discussion of these statistics, see Allan R. Odden and Lawrence O. Picus, SCHOOL FINANCE: A POLICY PERSPECTIVE. (2nd Edition) (New York, NY: McGraw Hill, 1999); Robert Berne and Leanna Stiefel, THE MEASUREMENT OF EQUITY IN SCHOOL FINANCE: CONCEPTUAL, METHODOLOGICAL AND EMPIRICAL DIMENSIONS (Baltimore, Maryland: The John Hopkins University Press, 1984).
Tucker v. Lake View School District No. 25, 323 Ark. 693, 917 S.W.2d 530 (1996).
23 Lake View School District No. 25 v. Huckabee, No. 92-5318 (Pulaski County Chancery Court August 17, 24
1998) slip op. at 1-3; rev’d. Lake View School District No. 25 v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000) [hereinafter 1998 Order].
Ibid. For a more detailed discussion of the Supreme Court’s decision in the award of attorneys’ fees, see 30 Jack Druff, State Court Sovereign Immunity: Just When is the Emperor Armor-Clad? 24 U.A.L.R. Law Rev. 255 (2002).
Arkansas Policy Forum Page 4 November 18, 2002 Prior to the trial on the merits, the trial court dealt with a series of motions and requests.
The most important of these were the issues of: what kind of legal right education was under the constitution; the level of judicial scrutiny to be applied; and what the scope of the case was.31 In a September 2000 Order, the trial court concluded that in its opinion Lake View had always contained elements of equity and adequacy.32 Secondly, the trial court held that it would “review with strict scrutiny the constitutionality of the public school system.”33 While stopping short of declaring education a fundamental right,34 per se, strict scrutiny is usually used in cases involving fundamental rights.35 Therefore, because of the level of scrutiny applied, the trial court indirectly declared education a fundamental right.36 31 Lake View School District No. 25 v. Mike Huckabee, No. 92-5318 (Pulaski County Chancery Court September 13, 2000).
Id. at 3. See also discussion, supra, at notes 8-17 and accompanying text.
34 Id. at 5-6 (“The State of Arkansas has a compelling interest in having an educated electorate, and therefore, strict scrutiny will be the standard by which compliance will be measured.”) See, e.g. Williams v. Pryor, 240 F.3d 944, 948 (11th Cir., 2001) 35 Whether a statute is constitutional is determined in large part by the level of scrutiny applied by the courts. Statutes that infringe fundamental rights, or that make distinctions based upon suspect classifications such as race or national origin, are subject to strict scrutiny, which requires that the statute be narrowly tailored to achieve a compelling government interest. See, e.g., Reno v. Flores, 507 U.S. 292, 301-02, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1 (1993); Adarand Constructors v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 2113, 132 L.Ed.2d 158 (1995). Most statutes reviewed under the very stringent strict scrutiny standard are found to be unconstitutional. But see United States v. Virginia, 518 U.S. 515, 532 n. 6, 116 S.Ct. 2264, 2275 n. 6, 135 L.Ed.2d 735 (1996) ("strict scrutiny... is not inevitably fatal in fact") (quotation omitted). On the other hand, "if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the [law] so long as it bears a rational relation to some legitimate end." Romer v. Evans, 517 U.S. 620, 632, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996); see also, e.g., Washington v. Glucksberg, 521 U.S.
702, 728, 117 S.Ct. 2258, 2271, 138 L.Ed.2d 772 (1997); FCC v. Beach Communications, Inc., 508 U.S. 307, 314, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993). Almost every statute subject to the very deferential rational basis scrutiny standard is found to be constitutional. Cf., e.g., Panama City Medical Diagnostic Ltd. v. Williams, 13 F.3d 1541, 1546th Cir.1994) (discussing "arguable" rational bases for statute).