Every state Constitution in the United States includes a right to education.172 Constitutional clauses include in their descriptors the right to an ‘adequate’, ‘thorough’ or ‘efficient’ education.173 Judicial decisions from the 1980s in many states referred to ‘adequacy’. The majority of state courts have determined educational ‘adequacy’ claims as being
justiciable.174 These decisions have referred to educational adequacy in terms of both educational standards and funding systems.
The state of Kentucky became the ‘birthplace’ of the adequacy movement175
with the case of Rose v Council for Better Education (‘Rose’).176 Rose held that, under §183 of the Kentucky Constitution ‘[e]ach child, every child, in this Commonwealth must be provided with an equal opportunity to have an adequate education.’177 The Court held the education clause to guarantee a certain quality of education. It stated:
172
Robynn K Sturm and Julia A Simon-Kerr, ‘Justiciability and the Role of Courts in Adequacy Litigation: Preserving the Constitutional Right to Education’ (2008) Yale Law School Legal Scholarship Repository 3<http://digitalcommons.yale.edu> at 10 August 2012.
173
Ibid 14.
174
See eg Alaska: Moore v State, 262 P 3d 217 (Alaska Sup Ct 2007); Arkansas: Lake View School District No. 25 v Huckabee, 189 SW 3d 1 (Ark 2004); Colorado: Lobato v State, No 06CA0733 (Colo App 2008); Connecticut: Sheff v O'Neill, 678 A 2d 1267 (1996), 678 A 2d 1267 (1996); Kansas: Unified School District No 229 v State, 885 P 2d 1170 (Kan 1994); Kentucky: Rose v Council for Better Education 790 S W 2d 186 (Ky 1989); Board of Education of Boone County v Bushee, 889 S W 2d 809 (Kentucky 1994); Montana: Columbia Falls Elementary School District No 6 v State, 109 P 3d 357 (Mont 2005); Massachusetts: McDuffy v Secretary of Executive Office of Education, 615 N E 2d 516 (Mass 1993); New Hampshire: Claremont v Governor, 794 A 2d 744 (2002); New Jersey: Abbott by Abbott v Burke, 693 A 2d 417 (N J 1997); New York: CFE v State of New York, 801 N E 2d 326 (2003); Board of Education, Levittown Union Free School Dist v Nyquist, 57 NY 2d 27 (1982); North Carolina: Leandro v State, 488 S E 2d 249 (N C 1997); Ohio: De Rolph v State, 728 N E 2d 993 (Ohio 2000); South Carolina: Abbeville County Sch Dist v State, 515 S E 2d 535 (S C 1999);
Tennessee: Tennessee Small School Systems v McWherter 894 S W 2d 734 (Tenn 1995); Texas: Neeley v West Orange-Cove Consol Indep Sch District 176 S W 3d 749; Wyoming: Campbell County School District v State, 907 P 2d 1238 (Wy 2001) 19 P 3d 518; Claims have also been heard in Delaware, Idaho, Maryland, New Mexico, North Dakota, Rhode Island, Vermont and West Virginia: see<http://www.schoolfunding.info/states/state_by_state.php3> at 10 August 2012; However other states have found the educational obligations set out in their constitutions non justiciable; see eg in Illinois: Committee for Educational Rights v Edgar, 672 NE2d 1178, 1183 (Ill 1996).
175
Sturm and Simon-Kerr (2008) 14.
176
790 S W 2d 186 (Ky 1989).
177
[A]n efficient system of education must have as its goal to provide each and every child with at least the seven following capacities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient
understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-
knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.178
Rose was followed in seven other states.179 In New Hampshire the Supreme Court held in Claremont School District v Governor180 that the existing statutory scheme had deficiencies that were inconsistent with the state’s duty to provide a constitutionally adequate
education.181 The trial court had dismissed the action and the plaintiffs appealed. In
Claremont School District v Governor182 (‘Claremont I’) the Supreme Court had examined the meaning of the words used in the Encouragement of Literature Clause at the time the state Constitution was adopted in 1784 and historical evidence of the significance of education to the constitutional framers. The Court also considered the interpretation of almost identical language in the Massachusetts Constitution by the Massachusetts Supreme Court in McDuffy v Secretary of Executive Office of Education.183 Claremont I concluded that Part II, Article 83 of the New Hampshire Constitution required the state to ‘provide a constitutionally adequate education to every educable child in the public schools in New Hampshire and to guarantee adequate funding.’184
In the third Claremont case, Duggan J, Brock CJ and Broderick J concurring, held:
178
790 S W 2d 186, 212.
179
See eg Lake View Sch Dist No 25 v Huckabee, 91 S W 3d 472 (Ark 2002); McDuffy v Secretary of Executive Office of Educ, 615 N E 2d 516 (Mass 1993); Claremont Sch Dist v Governor, 703 A 2d 1353 (N H 1997); Carrollton-Farmers Branch Indep Sch Dist v Edgewood Indep Sch Dist 826 S W 2d 489 (Tex 1992); Opinion of Justices No 338, 624 So 2d 107 (Ala 1993); Unified Sch Dist No 229 v State, 885 P 2d 1170 (Kan 1994); Leandro v State, 488 S E 2d 249 (N C 1997); Abbeville County Sch Dist v State, 515 S E 2d 535 (S C 1999). 180 147 N H 499 (N H 2002), 794 A 2d 744. 181 147 N H 499, 500. 182 138 N H 183, 635 A 2d 1375 (1993). 183 415 Mass 545, 615 N E 2d 516 (Mass 1993). 184 138 N H 183, 184.
[T]he State has not provided a sufficient mechanism to require that school districts actually achieve this goal. We hold that because of deficiencies in the system as set out in this opinion, the State has not met its constitutional obligation to develop a system to ensure the delivery of a constitutionally adequate education.
…
It is for the Governor and the legislature to choose how to measure or evaluate whether a constitutionally adequate education is being provided and what action to take if a school is determined to be deficient.185
Similarly in Hoke County Board of Education v State186students from rural counties in North Carolina brought an action against the state alleging the system used to fund public schools violated their constitutional right to educational opportunities. They alleged that there was a disparity between the educational opportunities available to children in their districts and those offered in more wealthy districts of the state. They led evidence demonstrating that a large number of Hoke County students failed to achieve a minimum proficiency on
standardized tests and that Hoke County's student retention rate was nineteen percent lower than the state average. They also led evidence that local employers found that Hoke County students who did graduate did not possess the basic skills needed for available jobs, and that Hoke County graduates ‘fared poorly when it came to grades in core courses’ at the State's universities.187
Justice Orr on behalf of the Supreme Court of North Carolina stated:
In order to determine whether a child is obtaining [a sound basic] education, a court should consider the child's performance on standardized tests, the degree to which students have met the educational goals and standards adopted by the state, the level of the State's general expenditures and per pupil expenditures, and any other factors relevant for considering adequacy issues under the state constitution.188
185
147 N H 499, 518 (N H 2002).
186
Hoke County Board of Education v State, 599 S E 2d 365, 373 (N C 2004).
187
Ibid 384-385.
188
The Court upheld the trial court’s finding that such evidence showed clearly that Hoke County students had failed to obtain a constitutionally conforming ‘sound basic’ education.189
By 2012, plaintiffs had litigated constitutional adequacy cases in 45 states and many of the judicial decisions served as catalysts for education reform.190 Educational obligations have been enforced both through court ordered reforms and court-compelled legislative
deliberation and action.191 Overall, plaintiffs have succeeded in 67% of the
decisions.192Although contained in constitutional rather than private actions, educational adequacy definitions similar to the Rose formula are used as a yardstick by applicant groups.193 Hence in this respect the ‘efficacy of the course of instruction’194 has indeed been a matter for court consideration across the United States. However, the limitations of the adequacy actions lie in the remedies available to the courts. For example in Hoke County the trial court entered an order compelling the State to:
(1) assume the responsibility for, and correct, those educational methods and practices that contribute to the failure to provide students with a constitutionally- conforming education; and
(2) expand pre-kindergarten educational programs so that they reach and serve all qualifying 'at-risk' students.195
Plaintiff groups may seek declaratory and injunctive relief whereby the court compels the state to observe its constitutional obligations but they may not obtain personal damages, thus making their remedies ‘more symbolic than real’.196
189
Ibid 386.
190
Michael A Rebell, ‘The Right to Comprehensive Educational Opportunity’ (2012) 47 Harvard Civil Rights-Civil Liberties Law Review 80, 80.
191
Emily Buss, ‘The Gap in Law between Developmental Expectations and Educational Obligations’ (2012) 79 University of Chicago Law Review 59.
192
Ibid 81.
193
Claremont School District v Governor, 142 N H 462, 474-475 (1997) (Claremont II).
194
Paladino et al v Adelphi University 454 NYS 2d 868, 873 per Brown J.
195
Hoke County Board of Education v State, 599 S E 2d 365, 373 (N C 2004). The Supreme Court of North Carolina affirmed the first order but reversed the second, not wishing to intrude on ‘the province of the legislative and executive branches by prescribing the “nuts and bolts” of the reassessment’: 390-9 1 per Justice Orr on behalf of the Court.
196
Note, ‘Recent Cases: School Finance – North Carolina Supreme Court Finds the State in Violation of its Constitution for Failing to Provide Students an Opportunity to Obtain a Sound Education. - Hoke County Board of Education v State, 599 S E 2d 365 (N C 2004)’ (2004-2005) 118 Harvard Law Review 1753, 1757.
2.5
Conclusion
This chapter set out the attempts to mount the action of educational negligence in the United States and the adequacy litigation brought under the states’ constitutions. The action of educational negligence has been consistently rejected across the states. However there are several distinguishing factors in the states’ jurisdictions. The role of the jury in deciding matters of breach and proximate cause may have contributed to the United States courts keeping the private action back from the ‘floodgates’ of potential jury generosity by refusing to find a duty of care. In addition, the adequacy litigation under the states’ constitutions has at least served to permit regular discussions of educational standards before the courts. Although there are no personal remedies available to them, parents of educationally underdeveloped students are thus not without opportunities to address the courts. Chapter 3 examines the contrasting regime in the United Kingdom, where the House of Lords has accepted the private action of educational negligence at least in cases of failure to remedy congenital learning defects.