Contexto español

In the last chapter, I charted the trajectory of the DeRolph v. Ohio school finance litigation. That case had a remarkably short “shelf life,” with the Ohio Supreme Court ending its jurisdiction of the matter after six tumultuous years. In 2006, Democrat Ted Strickland was elected to serve as Governor of Ohio. Working in conjunction with a Democratic State House of Representatives, Strickland fashioned an appropriation bill that would have increased the state’s share of education spending by over 7%. The bill passed the House in early 2010, and a watered-down version was then put before the Ohio State Senate. Before Strickland’s vision of school finance reform could come to fruition, he was defeated by former U.S. Representative John Kasich in a hotly contested 2010 election.¹ Kasich, who entered office with his own set of priorities, tabled discussion of Strickland’s reform legislation. Thus, school reform in Ohio, emanating this time from the branches of government that had traditionally handled such matters, once again became a “back burner” issue.

Two aspects of this scenario are relevant to the chapter that is about to unfold. First, school finance reform was reignited by a single, popularly elected individual. Strickland prioritized education reform and very nearly succeeded at implementing it in a short period of time. Second, this “moment” was much narrower and more tenuous than the outcome of a state

1 Access Network, “Ohio on Track for Constitutional Compliance?” Accessed at http://www.schoolfunding.info/news/policy/04-09-09Ohio.php3.

supreme court case: by changing executives, the people of Ohio effectively shifted the state’s priorities. One is left to wonder, then, what constitutes the most efficacious method for redressing school finance inequalities: via elections, or via the courts?²

I explore that question in the first section of this chapter. In the course of addressing it, I discuss how judicial decisions for plaintiffs have led, on the aggregate, to moderate, systemic funding increases. I proceed from there to a brief survey of the circumstances by which some of the state supreme courts discussed in chapter three—noted for their “landmark” decisions—came to terminate their jurisdiction of school finance litigation during the first decade of the 21^st century. I then evaluate concerns raised by some scholars regarding the continued viability of

“adequacy”-based litigation theories, in the process adverting to how there were so few notable state supreme court holdings on the issue of school finance during that decade. I close this section with a reflection on the lengthy Abbott v. Burke (1985) litigation, focusing my attention on the New Jersey Supreme Court’s twenty-first holding in that case and Republican Governor Chris Christie’s subsequent forceful response to it.³ Christie’s well-coordinated, if ultimately unsuccessful, campaign against the New Jersey Supreme Court suggests that some of the earlier

“advantages” the judiciary was believed to possess, such as insulation from the political process, may be effectively used against justices interested in attempting to mandate that the other two branches of government implement specific reforms.

2 Sol Stern puts it thusly in “The March of Folly,” his short, tendentious account of school finance litigation in New York: “While all that energy was consumed in the courtroom, and so many smart people wasted their time trying to answer an unanswerable question, the political process has, willy-nilly, moved along...[and] the amount of money going to the city’s schools has almost doubled. It happened through the give and take of democratic politics, as flawed as that politics is in New York, rather than by having a judge arbitrarily impose spending increases on unwilling taxpayers.” In Eric A. Hanushek (ed.), Courting Failure (Hoover Institution Press, 2006), p. 33. Stern’s take on the matter is quite obvious from this passage. The real answer, of course, is far more complicated than that.

3 Abbott v. Burke, 100 New Jersey 269 (1985); Abbott v. Burke, M-1293-09 (2011).

The second section of this chapter focuses on a curious moment in Alabama’s recent past where voters rejected an amendment that would have removed segregation-era language from the state’s education clause. In its place, the amendment would have opened the door to the drafting of a more modern education clause—one that might have stated that education was a

“fundamental right” or “fundamental value” of the state. However, a ferocious anti-tax campaign led by a former state supreme court justice and the president of the state chapter of the Christian Coalition, ensured that the measure was rejected by the slimmest of margins. This vote, one of dozens that take place every year as state constitutions continue through processes of constant revision and amendment, received modest national media attention even as its deeper implications passed unnoticed. Returning to the discussion of school finance inequities in the

“Jim Crow” South presented at the beginning of Chapter Three, I argue that this situation affords us many useful insights into American attitudes toward education, providing concrete evidence of how faith in educational equality “dims when held in the bright light of competing norms and conflicts, like localism, ideological differences, and racial divides.”⁴

The last section of this chapter concerns solutions to the challenges presented by the state-by-state school finance litigation that has occupied the attention of many state supreme courts during the past years. Although these jurists have not acted in vain, they have had to work within institutional constraints that have limited their effectiveness. I begin the section by gently critiquing the claim, advanced by Michael Rebell, that lengthy court oversight of these decisions is the best “practical” solution. From there, I evaluate a new litigation theory that may offer the possibility of reform through the federal courts. While this “federal turn” is promising in the abstract, it seems unlikely to sway the currently right-leaning federal judiciary responsible for

4 Douglas Reed, On Equal Terms (Princeton, 2001), p. 123. This was Reed’s conclusion after conducting extensive polling to determine voter attitudes toward educational opportunity.

such recent decisions as Parents Involved in Community Schools v. Seattle School District No. 1 (2007). Finally, I offer my own proposal: in light of data showing how uncompetitive the individual states are with regard to most industrialized nations, it seems that only an amendment to the federal constitution creating a unitary national public school system could possibly yield the results that most reformers desire. Since many of the nations that are “lapping” the United States in terms of educational performance have unitary or more highly centralized school systems, it behooves policymakers in the United States to consider endorsing such a radical solution.

5.1 HOW MUCH IS TOO MUCH? ABBOTT AND THE LIMITS OF JUDICIAL