By now the list of a half-century of half-tried and discarded educational remedies seeking to honor the promise of Brown v. Board of Education fills volumes: attendance-zone redistricting, busing, magnet schools, compensatory education, bilingual education, ebonics, military schools, year-round schools, single-sex schools, Head Start and multiculturalism, plus scores of other curricular reforms. While gaps between the academic achievement of white and minority children were reduced in the first decades after the end of legal segregation, they were never eliminated. By almost any educational measure, the average black or Latino child continues to lag behind her white or Asian counterpart. In 1973, with its decision in San Antonio v. Rodriguez that public schooling was not a right guaranteed under the Constitution, the Supreme Court itself effectively gave up its cause.
That threw the issue back to the states, where it has remained ever since, but where, in an accumulation of crucial state Supreme Court decisions and associated legislative reforms, the drive for decent schools for poor and minority children has taken a new, unexpected–and perhaps encouraging–set of turns.
At the heart of those cases is the principle of adequacy, a legal idea, rooted in variously worded state constitutional provisions, that’s as promising as it is awkward. Many state constitutions require the state to maintain “thorough and efficient” schools or (as in New York) “free common schools wherein all the children of this state may be educated,” or (as in North Carolina) to establish the “right to the privilege of education.”
Most such provisions have been in state constitutions for generations. But in the past fifteen years, as state after state has adopted tougher academic standards, tests and accountability measures, those standards have become both the drivers and the gauge for new demands from parents, school districts, civil rights groups and others for better resources, especially in schools serving the neediest kids: If students are required to meet higher standards for promotion, or to pass exit exams to get a diploma, or if teachers or principals face sanctions if their schools don’t measure up, the state has a commensurate responsibility to provide the resources–in trained teachers, materials and facilities–to enable them to succeed. In this way, advocates of educational equity have attempted to turn the “standards” movement–which has been championed by conservatives–into a lever for progressive change.
The list of states where this is happening continues to grow: Arkansas, Kansas, Kentucky, Massachusetts, Montana, New Jersey, New York, North Carolina, Ohio and Wyoming, among others. The courts have ordered these states to establish systems that base school funding not on the customary political sausage machine that allocates money according to local wealth and the relative clout of competing legislative interest groups but on the closest possible determination of what it actually costs to educate each child. In some of them the judges have ordered even more specific remedies–preschool for at-risk children, for example, or wholesale curricular reforms.
In others, like California, major lawsuits are still pending. Former Governor Gray Davis, a Democrat, hired high-priced corporate lawyers to fight a California suit first brought by the American Civil Liberties Union along with other civil rights groups. The state argued, among other things, that lousy schools weren’t its responsibility. After the state spent some $18 million on its lawyers, Davis’s Republican successor, Arnold Schwarzenegger, is now trying to negotiate a settlement.
The most influential model for the adequacy cases has been Kentucky, which until the late 1980s had one of the most underfunded, inequitable and often corrupt school systems in the nation. In a sweeping 1989 decision (Rose v. Council for Better Education) the Kentucky Supreme Court struck down that whole system–“all its parts and parcels”–as a violation of the state Constitution and ordered the legislature to start over. Among the standards the court set was a requirement that Kentucky provide every child with seven “capacities”–oral and written communication skills, “sufficient knowledge of economic, social, and political systems to enable the student to make informed choices…sufficient training…in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently,” plus several others. Within a year, the state legislature, with the support of a business community that badly needed a better-educated labor force, enacted a major education reform law, complete with significant new funding, tougher academic standards, a new testing program and other measures.
The reforms hardly produced miracles, but they quickly improved teacher salaries and qualifications, improved facilities and produced substantially better scores on national tests, where Kentucky moved from near-bottom to roughly average. In the years since, and particularly because of tight budgets brought by the recession that began in 2000, Kentucky’s school funding, like that of many other states, has eroded, and now new negotiations as well as another suit based on the state’s alleged failure to maintain adequate resources are under way. Still, the Rose case testifies more to the success of the principle than its failure.
Defining adequacy is hardly a simple process. Resources that are adequate for middle-class kids may not be adequate for those coming to school speaking little English or those who are educationally handicapped. Nor is it clear what level of schooling the respective state constitutions require. In a New York State case last year, a lower appellate court decreed that an eighth-grade education was enough. But the Court of Appeals, New York State’s highest court, rejected that crimped standard. It would require a great deal more, the court effectively held, for a person to become a fully functioning citizen and member of contemporary society.
With the enactment in 2002 of the No Child Left Behind Act, President Bush’s school accountability law and his prime claim to “compassionate” conservatism, the Administration has perhaps unwittingly given the adequacy movement additional steam. In the past year a number of states have considered rejecting a major chunk of federal funds in the belief that NCLB represents unfunded mandates, and thus costs them more than they were getting from the Feds. Districts in Nebraska, Missouri and North Dakota filed adequacy suits against their states, complaining that NCLB, in combination with state tests and proficiency standards, was asking them to achieve levels of proficiency beyond the resources provided. The threat of such suits has also added steam to the spreading political backlash against NCLB, even in legislatures dominated by Republicans.
Perhaps the most significant thing about the adequacy argument is that it goes beyond the simple equity principles–essentially, equal funding for every child–that have been a prime legacy of Brown. The remedy sought in Rodriguez, a remedy ordered by a number of state courts in the 1970s and ’80s, was for states to provide enough money to low-property-value districts–districts that didn’t have enough resources of their own–so that each child in the state had roughly the same funding behind her as all other children. But what seemed equitable in theory often wasn’t equitable in practice. Many poor children went to school in the ghettos and barrios of property-wealthy districts, where their schools were still run-down, the roofs leaked, the rats played, the books were out of date and sometimes not available at all, and their teachers were disproportionately underqualified. Many of those teachers doubted that their students could ever achieve real academic proficiency.
In states like California, moreover, which had been a model for the equity-funding cases of the 1970s, the ultimate outcome of a pair of state Supreme Court decisions ordering the state to equalize per-pupil spending, combined with the tax-cutting mandated by Proposition 13 (1978), was to equalize school funding down. Which is to say that nominal equity brought not better schooling for children but worse. Given the structure of the American federal system, moreover, no court has the authority to equalize spending among states. New York and New Jersey, for example, now spend more than half again as much per child as California and twice as much as Utah.
Most important, the pro forma equity ordered by courts like California’s did not in fact equalize resources–even between schools in the same district–much less provide resources that gave poor children a shot at a decent education. Studies in Seattle, Cincinnati and Houston conducted by a group of University of Washington researchers have shown that because the most capable and experienced (and thus the highest paid) teachers cluster in schools with better conditions, real per-pupil spending in different schools within the same district ranged between as little as $4,000 per child and as much as $10,000 per child, with the gap almost always disfavoring the schools serving poor and minority children.
Economists and educational experts disagree about how much sheer money matters. While Washington, DC, for example, spends more than almost any other large urban district, its student achievement levels are among the poorest in the nation. And, as many conservatives contend, some low-wealth districts that allocate resources effectively do better than high-wealth districts that don’t. Nonetheless, in most places the strong correlation between the poverty levels of students, the paucity of decent resources they get in the classroom and their low achievement is reflected in almost every measure of school quality there is: student test scores and graduation rates, the test scores and college rankings of the teachers, the crowding and physical condition of the schools, the availability of books and materials, class size and all the rest. A study done in New York State by Hamilton Lankford, an economist at the State University of New York at Albany, showed an almost perfect correlation between the percentage of teachers who had failed certain standard state teachers’ exams at least once and the concentration of poor children in the schools where they taught. The poorest kids, in other words, tend to get the least-experienced and least-qualified teachers.
For the most part, and despite concerns about local control and the limits of judicial authority under constitutional separation of powers, the courts have accepted the adequacy arguments, even inviting them in states where they rejected the equity cases. Writing the adequacy formulas–some based on what “successful” schools spend, some on the judgment of education professionals–is hardly an exact science. But it’s almost certainly more precise than conventional interest-group politics and backroom deals (as in New York, where it was “three men in a room in a room,” the governor and the leaders of the Assembly and Senate). And as Michael Rebell, who heads the Campaign for Fiscal Equity in New York, points out, it gets beyond the zero-sum (and often self-defeating) equity argument under which additional money for poor schools comes from schools attended by more affluent kids. This has happened not only in California but in Texas, where an equity-based court decision led to a state rule ordering wealthy districts to share funds with low-wealth districts.
The political response to the adequacy decisions has varied according to the politics of the respective states. In New Jersey a series of court decisions spanning more than twenty years (all designated Abbott v. Burke) have slowly succeeded in getting the state to fund its biggest urban districts at the same level as the highest-funded suburban schools–though so far with unclear results in student achievement. While major reforms– preschools, curricular changes, smaller classes–have been instituted in Newark, Camden, Jersey City and the almost thirty other urban “Abbott” districts, many of which now spend some $15,000 per child, far more than the national average, test scores have yet to show commensurate results.
Conversely, in Ohio, legislators asserting their authority as a co-equal branch of government have largely ignored the state Supreme Court’s orders. In Alabama, where a series of court decisions ordered the state to revise its blatantly inadequate school-funding formula, the Supreme Court, after a set of judicial elections that radically changed the balance of the court, made a 180-degree turn and, on its own motion, decreed that the courts had no authority to meddle in school finance–only the legislature could do that.
The future of those cases–indeed, of the whole adequacy principle–remains unsettled. What is adequacy anyway, and who determines it? Is it an eighth-grade education, as the one New York court ruled? Is it high school graduation? Is it admission to college? Can the courts ever accomplish real reform without public (and thus political) willingness to provide decent resources to all children? How much are affluent taxpayers willing to spend for poor, minority and immigrant kids? What difference does money make, and if it makes a major difference, how should it be spent?
Yet some things are clear. Even conservative economists like Eric Hanushek of Stanford’s Hoover Institution agree that good teachers make a critical difference in enabling poor and minority children to overcome the economic and cultural disadvantages they come to school with. That means creating the conditions that will attract and keep good teachers in the classrooms that most need them. It also means writing “weighted student formulas” that provide the additional resources essential for English-language learners, children from poor homes and learning-disabled students.
Notwithstanding its many flaws, NCLB has reinforced the push for adequate resources. From the start, its prime intent was to force schools that received federal Title I money–the biggest part of the Feds’ K-12 funding–to improve the education of the poor kids it was designed for. For many states that had largely written off black and Latino kids, and that under NCLB are now being rated not just on average student achievement but on that of all major economic and ethnic subgroups, this was an enormous change. It began to address at least part of the great issue that Brown raised and Rodriguez effectively abandoned.
NCLB, written and passed with the strong support of congressional liberals like Edward Kennedy and George Miller, also linked funding to accountability as no other federal program had ever done. That the Administration is now funding it at some $9 billion a year less than it had promised, and that its enforcement of the NCLB provision requiring districts to have a “highly qualified” teacher in every classroom borders on the farcical, doesn’t vitiate the link.
By the same token, the Administration’s failures may well jeopardize the noble objective that the bill proclaimed. For if accountability and high standards can leverage funding up, so can the lack of funding allow standards to slip. It would not be all that hard for states and districts to return to the convenient rationale, common in the post-Brown decades, that poor and minority kids and immigrant Latinos who come to school speaking little English are so disadvantaged that it would be unjust–and, in any case, futile–to ask them to achieve at a high level. Bush, in one of his few memorable phrases, called it “the soft bigotry of low expectations.”
A few weeks ago, a researcher for a PBS program on the Brown anniversary called to ask where she could find latter-day examples of tracking–the practice of moving poor and minority kids into unchallenging, dead-end programs. Those practices may be less blatant today, but they are still with us. And as Harvard’s Gary Orfield points out, US schools are now as segregated as they were thirty years ago–in the case of Latinos, more segregated than ever. But all over America, the biggest form of tracking and segregation these days is not the old system, where some kids are automatically enrolled in relatively demanding college-prep programs while others are consigned to shop and business math, but the massive de facto tracking of black, Latino and other poor kids into schools that don’t begin to have the qualified teachers, textbooks, counselors, lab equipment, clean and safe spaces, working toilets and vermin-free classrooms that honor their work and that of their teachers, and that make them want to succeed. Desegregating schools can’t alleviate that problem, because housing patterns, white flight and sheer politics make it difficult to find anyone with whom to integrate. The only remedy is to make the schools serving poor kids vastly better.
Although it’s now almost a cliché, it’s truer than ever that education is the biggest–and maybe the ultimate–frontier in the battle for civil rights. Brown (and, to a slightly lesser degree, the civil rights acts of the Johnson era) contributed mightily to the progress that’s been made in that battle over the past half-century. But it is hardly finished. For all its flaws, adequacy may be the most promising legal strategy to move it to the next stage.
Peter Schrag, who writes frequently on education, is the author, most recently, of Final Test: The Battle for Adequacy in America’s Schools (New Press). A new edition of his Paradise Lost: California’s Experience, America’s Future (University of California) is due out this summer.