Standards, Testing, and School Finance Litigation

Abstract

This Article addresses the intersection of two reforms that currently dominate the world of education law and policy: the standards and testing movement and school finance litigation. All states, with the prodding of the federal No Child Left Behind Act (NCLB),1 have established academic standards that describe what students are expected to know and be able to do at various stages in their K-12 education.2 All states have also instituted a series of tests to assess whether those standards are being met and to sanction schools, and sometimes students, who fail to reach the designated goals.3 At the same time, nearly all states have been subject to lawsuits, based on state constitutions, challenging the way they fund their schools.4 According to the conventional account, most school funding suits over the last fifteen years have focused on as opposed to equity.5 Instead of pursuing equal resources for all schools, school finance litigants supposedly seek recognition of a right to an adequate education and the resources necessary to provide it. The basic approach of adequacy cases, at least in theory, is to define the outcomes that constitute an adequate education and then to work backward to determine the resources necessary to reach those outcomes. One obvious difficulty is how to define an adequate education. This task is not only conceptually difficult; it could also strain the institutional capacity and perhaps integrity of courts.6 Enter the standards and testing movement. There is an emerging consensus among commentators, which is hardening into conventional wisdom, that academic standards have been and will continue to be a big help to school finance plaintiffs. The existence of standards, it is argued, can relieve courts of the difficult task of defining an adequate education because academic standards themselves define adequacy. Better still, the definition comes from the legislature rather than the courts. To be sure, courts that rely on standards would still have to determine whether schools are meeting the standards and what remedy to order if schools are falling short. But at least the knotty definitional problem would be solved. This would help school finance plaintiffs, so the conventional wisdom continues, because courts would be less reluctant to enter into and more likely to remain in school funding disputes if they could rely on a legislative benchmark for adequacy.7 Commentators have high hopes for the marriage of standards and school finance litigation. Peter Schrag, author of a recent book on school finance litigation, nicely captures the mood of optimism: [T]he effort to raise academic standards and accountability in the public schools ... and then use those standards to calculate the resources needed to achieve them is both a radical idea in American education and probably the most hopeful step for poor kids since the Brown decision a half-century ago.8 As Schrag's statement suggests, he and most other commentators believe not only that standards could help school finance plaintiffs but that they already have helped them.9 I believe that the nascent conventional wisdom about the relationship between standards and school finance litigation is wrong not just once but twice. It is inaccurate as a matter of description, and it is wrongheaded as a matter of prescription. A close reading of the cases indicates why, and studying the actual cases also indicates a more fruitful direction for litigants and courts to follow. To preview the argument briefly, there is a divergence between the commentary on school finance cases and the actual cases themselves. The first and narrowest goal of this Article is to document that discrepancy. Contrary to almost all accounts, whether written by fans or opponents of school finance litigation, standards have not yet proven especially attractive to courts in school funding cases.10 Indeed, I found only a single decision from a state's highest court (the Kansas Supreme Court) that relied on legislative standards. …