If the effort succeeds, the state’s educator-evaluation system—which measures teachers’ impact on student learning—would become a primary component of school personnel policies. Teachers’ unions themselves collaborated with the state education department to create the evaluation system. But the unions oppose tying the evaluations to key staffing decisions. At present, seniority drives layoff and transfer policies in many districts.

Although Massachusetts is often hailed as a leader in public education, underachievement is common among poor and minority students. In a survey of the state’s schools, Stand for Children—the nonprofit leading the ballot-initiative effort—found that quality-blind staffing policies are more common in low-income districts. For example, the survey found that 58 percent of those districts have contract language establishing reverse-seniority layoffs for tenured teachers, compared to only 34 percent of wealthier districts.

Stand for Children made a prudent choice by taking this proposal to the ballot box. After all, the Democratic state legislature wouldn’t have enacted this law on its own. Yet most voters seem to agree that classroom effectiveness should motivate teacher-staffing policies. Ballot-initiative procedures—which are a Progressive Era reform—were designed for situations like this: Through the ballot box, the electorate can circumvent special interest-driven legislatures and directly enact popular laws. In reality, however, special-interest groups can be hugely influential in ballot-initiative campaigns.

The state’s largest teachers’ union, the Massachusetts Teachers Association, is taking a kitchen-sink approach to defeat Stand for Children’s proposal. The union filed a lawsuit earlier this year to prevent voters from even deciding the issue. The lawsuit—which raises three fairly technical claims based on the state’s constitutional requirements for ballot initiatives—alleges that the state attorney general erred by certifying the proposal to appear on this year’s ballot.

Experts predict that the union’s legal challenge will fail. “It strikes me as a Hail Mary lawsuit,” said Leslie Graves of the website Ballotpedia. Similarly, Professor Jonathan Matsusaka, who is president of the Initiative and Referendum Institute at the University of Southern California, said that the union’s claims amount to a “big stretch.”

Even Peter Enrich, a Northeastern University law professor who opposes the initiative on policy grounds, said that the lawsuit is weak. “I understand why the plaintiffs don’t want this question on the ballot,” he said. “But when you look at the claims with an eye to the state constitution, they are reaches.”

The Massachusetts Supreme Judicial Court heard oral arguments in the case earlier this month. A decision is expected by mid-July.

If its legal claims are losers, why did the union ever bother filing suit?  Ms. Graves of Ballotpedia has a few explanations. For starters, judges can be unpredictable and so seemingly weak claims sometimes succeed. And it may have been worth rolling the dice when the lawsuit’s costs will amount to little more than the union’s lawyers’ time. In comparison, a full-blown advertising campaign against the initiative could carry a price tag in the millions. Thus, the potential savings may be worth the effort of drafting some papers and making a few court appearances. Finally, lawsuits attract media attention and create public-relations opportunities, which may serve as a cheap way for the union to launch its broader campaign against the proposal.

Teachers’ unions have some advantages going into the campaign. “The electorate is sympathetic to teachers,” said Professor Matsusak, “and teachers have proven to be highly effective politically as a result.” Thus, teachers’ unions may jam local media with ads of educators encouraging voters to oppose the initiative. And this strategy may work: In Oregon, teachers’ unions ran an aggressive campaign to help defeat a 2008 proposal that would have required schools to pay teachers based on merit, not seniority. Similarly, the largest teachers’ union in California spent millions to crush a 2000 proposal that would have created a statewide voucher system.

But the Massachusetts initiative still has promise. Public-opinion surveys suggest that the proposal—which ties hiring, firing, and transfer decisions to teacher effectiveness, while still giving some consideration to seniority—may be more popular than the merit-pay or school-voucher proposals. Also, Stand for Children recently kicked off an ambitious advertising campaign, which could rival the unions’ own outreach efforts.

However, status-quo bias is another hurdle for the initiative. “Voters hesitate to upset the world as it is, unless they’re confident that the alternative is going to be better,” said Professor Matsusak, who estimates that nationally about 60 percent of initiatives have failed over the past century. Bias against change could be strong in Massachusetts, where the schools are widely considered to be some of the country’s best.

Voters are particularly hesitant to embrace complex initiatives, said Professor Enrich, who considers Stand for Children’s 16-page proposal “awfully complicated.”  Merit-based staffing is a simple idea. But the reality is that few voters will understand the particulars of the initiative on Election Day. And ads against the proposal will likely stir up voters’ fear of the unknown.

Regardless of the outcome, the Massachusetts proposal could offer a way forward for education reform in other states. About half of the 50 states allow for ballot initiatives. If proposals are tailored to public opinion, the ballot box could be a tool to improve this country’s schools in states where legislatures disappoint.

Mark Osmond, who holds a master’s degree in economics and public policy from Columbia University, is a law student at the University of Michigan. He can be reached at mark.a.osmond@gmail.com.

Filing in 2008, the plaintiffs in Lynch alleged that Alabama underfunds education in violation of Title VI of the Civil Rights Act, which forbids racial discrimination in federally assisted programs, and the Fourteenth Amendment’s Equal Protection Clause. Essentially putting Alabama’s history on trial, the suit maintained that racist motivations color every aspect of the state’s school-funding system. While most litigants contend that school finance relies too much on local property taxes, the plaintiffs in Lynch argued that localities should be able to rely more on property taxes. Alabama raises only 5 percent of its school revenue from property taxes, with the rest coming from income and sales taxes.

According to the plaintiffs, Alabama’s constitution of 1901, and amendments in the 1970s and 1980s, placed racially motivated limits on property taxes that prevent poor, primarily black communities from raising sufficient revenue to adequately fund education. In addition to capping the millage rate, the state created differential assessments for different categories of property. This meant, for example, that forested land, which comprises 70 percent of the state, was taxed at a significantly lower rate than other property. The plaintiffs asked the court to eliminate all limitations on property tax rates and all differential assessments.

The state contended that its constitution, as amended in the era of civil rights, is not racially motivated and that the current tax regime does not unfairly burden black students. It also argued that if granted, the plaintiffs’ remedy would all but destroy the real estate market and lead to economic “calamity.” Alabama’s forest industry, taking a keen interest in the case, said that taxes on forested land would increase 1,000 percent without differential assessments.

After a trial in 2011, district court judge Lynwood Smith issued a sprawling 854-page opinion that agreed that Alabama inadequately funds education but nevertheless concluded that “like it or not,” because of Supreme Court precedent, Alabama’s property-tax system is constitutional. In Rodriguez, Smith said, the Court “faced similar facts” and found no constitutional violation. Even though the 1901 constitution was a “misbegotten spawn” obviously “perverted by a virulent, racially discriminatory intent,” he concluded that amendments from the 1970s and 1980s modifying the offending portions of the constitution were not obviously motivated by racial animus. Smith also asserted that the funding system does not have a racially discriminatory effect, pointing out that “Alabama’s black students actually fare better in terms of yield per-mill per-student than do white students.” As a result, the plaintiffs had proved only that there are disparities but not “along racial lines.”

Smith went out of his way to show displeasure at having to rule against the plaintiffs. Alabama’s education system, he said, is hamstrung by “two unfortunate realities”: “mankind’s self-serving nature” and “Supreme Court jurisprudence.” Because of the first, a majority of the state’s voters are unwilling to vote for services that do not directly benefit them, leaving rural black and white students to suffer. As to the second, he argued that the “Court’s rulings on education since the 1970s mirror its decisions [such as Plessy v. Ferguson] from the late nineteenth century” and have “allowed unequal and inadequate school funding to evolve.”

Such tendentious moralizing aside, Smith’s opinion indicates that Rodriguez poses a high, but perhaps not insurmountable, hurdle for school-finance advocates in lower federal courts. A less-conflicted judge confronting similar facts might find a way to side with the plaintiffs. But the Supreme Court, which has expressed increasing skepticism about the desirability of judicial oversight of schools, seems unlikely to overturn well-established precedent and thrust lower courts into the quagmire of school funding and tax policy.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

Initially filed in 2007, the case raised the now boilerplate claims that Washington state insufficiently funds education.  The trial court judge sided with the plaintiffs and instructed the state to “proceed with real and measurable progress.” But the judge left it to the state to establish both the cost of an adequate education and how to fund it.  The state appealed directly to Washington’s Supreme Court, setting the stage for last week’s decision.

The Supreme Court agreed with the trial court that the state underfunds education, but then said the trial court went too far in trying to dictate “the precise means by which the state must discharge its duty.”  In other words, the Supreme Court was not even going to ask the state to meet the trial court’s very minimal command to do another cost study.  The Court noted that “finding the appropriate remedy” in education clause cases “has always proved elusive.”  The Court decided that, instead of ordering a specific remedy, it would just retain jurisdiction over the case to monitor the implementation of reforms that the legislature had already adopted on its own.

The takeaway is that the Court has said that it will maybe think about possibly doing something at some point in the future, but it can’t say what.  Implicitly the Court was just recognizing the reality that it lacks the capacity to determine what constitutes an appropriate system of school finance, the power to generate billions of dollars of new revenue, and the legitimacy to dictate how the legislature is to do its job.  The Court just couldn’t bring itself to explicitly say so, and seemed to desperately want to assert its institutional relevance.

The response from the state legislature only confirmed that the Court’s decision is going to be largely irrelevant.  The Seattle Times reported that, after the Court’s decision, “lawmakers on both sides of the aisle made clear that when the Legislature convenes Monday to address a $1.5 billion budget shortfall, education cuts will still be on the table,” despite the Court’s decision.  Washington, like most states, has faced declining revenues, and funding education at the level desired by the plaintiffs would require drastic cuts to other essential government services.

If McCleary counts as a victory for school finance advocates, then states facing these lawsuits should hope for similar defeats in the future.

-Joshua Dunn

LAUSD is being sued by a group that includes Alice Callaghan, a member of the Episcopalian clergy and the manager of Las Familias del Pueblo, a community center for the poor and homeless in downtown Los Angeles. Back in 1996, Callaghan organized 70 Spanish-speaking immigrant parents, who boycotted the Ninth Street Elementary School — calling for an end to failed bilingual-education methods and instead demanding that the school system teach the children of immigrant garment workers academic English as soon as possible.

Callaghan and this different group of parents are suing to enforce the Stull Act. The law goes back four decades and says that the board of trustees of each school district shall evaluate teachers, at least in part, by their student’s performance on the state’s standards-based tests. The law says “shall,” not “may.” It is mandatory that each district do this.

(The law is named for its sponsor, now-deceased Republican Assemblyman John Stull of San Diego, who received bipartisan support at the time for this statutory requirement that teachers be held accountable for the academic achievement of their pupils.)

The attorneys for the plaintiffs are Kyle Kirwan, a prominent Los Angeles litigator, and Scott Witlin, both partners at the law firm of Barnes & Thornburg. Their request for a court order was drafted in consultation with EdVoice, a Sacramento-based education-advocacy group. Before going to court, the plaintiffs sent a letter on Oct. 26 asking the district to comply. The letter stresses that for years the district has engaged in wanton lawlessness. In the letter, the plaintiffs’ attorneys say that the district “refuses to implement the Stull Act in complete abdication of its responsibility to its students, their parents, and the taxpayers of the district.”

The letter says that the district has never evaluated the teachers using student test scores, and, as a consequence, has never told teachers where they stood and counseled them on how to improve in terms of increasing their students’ learning – all of which are required by the law. “In short, the district has never complied with the Stull Act.”

The letter also points to the involvement of the teachers’ union United Teachers Los Angeles (UTLA) in this lawbreaking. Compliance with the law, the letter says, has been “deliberately evaded” through a series of “complicitous” collective-bargaining agreements between the LAUSD and UTLA, at the expense of students — who deserve effective teachers.

Specifically, the district has been pretending that it can avoid compliance with the Stull Act by making collective-bargaining agreements with the teachers’ union that overrule a statute (the Stull Act) passed by the state legislature. It doesn’t work that way. Valid contracts are written under and within the law, not in violation of the law. The lawsuit seeks to end this make-believe in the service of lawbreaking.

In their Nov. 1 petition for a court order, the plaintiffs’ attorneys say that the UTLA has treated the public school system in Los Angeles as “a taxpayer-funded jobs and entitlement program” for adults, even when a teacher‘s performance would be considered “demonstrably unsatisfactory” when judged by pupil results.

The petition described how the teachers’ union adopted a strategy of “stonewalling” when it came to putting the Stull Act into effect. “In collusion with the District‘s governing boards and superintendents,” the petition says, the teachers’ union has blocked lawful evaluation of teachers and the “corrective action” needed to ensure that students get effective teachers.

As a consequence, “the adults‘ collective employment and political interests” are turning the children’s opportunity for learning while in school “on its head” and instead the system is providing job guarantees to teachers as well as “preserving the political power of the Board and the Superintendent.” All of this comes at the expense of children — particularly the “socio-economically disadvantaged.”

These shenanigans by the district and the union have been presented to the public in a way that is designed to pull the wool over people’s eyes: “The result has been a perversion of the evaluation system and a knowing effort to deceive the public using educational jargon.”

Witlin, one of the attorneys, told education policy analyst and blogger RiShawn Biddle: “The school district is supposed to exist for the benefit of the children and not for the adults.”

The teacher evaluation program that is in place in Los Angeles, according to the petition, “does not comply with the Stull Act” and “perpetuates a fraud on the community” by letting teachers get high evaluation ratings whether or not their students are learning the material listed in the curriculum-content standards.

The petition cites damning statements from LAUSD Superintendent John Deasy in which he condemns his own evaluation program for teachers. For example, he recently said: “I would argue that nobody has told me that the current system of evaluation, which is performance review, helps anybody. It is fundamentally useless. It does not actually help you get better at [your] work and it doesn‘t tell you how well you’re doing.”

Superintendent Deasy also stated: “One would have to argue: ‘So … there are schools where 3 percent of the students are proficient at math and 100 percent of the teachers are at the top rating performance.’ That doesn‘t make sense to me whatsoever. And it doesn‘t make sense because the rating performance does not actually help teachers get better.”

In terms of what actually happens, the district is condemned out its own mouth.

Back on March 13, 2011, retired Los Angeles school district teacher Doug Lasken and I wrote an opinion column for the San Francisco Chronicle about non-compliance with the Stull Act in Los Angeles and other California districts – so I could not be happier about this lawsuit, which may finally bring some justice for Los Angeles schoolchildren after years of the district’s deliberate dodging of the law. Success in Los Angeles will mean that districts across California will have to begin evaluating teachers properly and getting struggling employees the extra help they need to become effective teachers.

LAUSD has been negotiating with UTLA to try to put in place a pilot program with three percent of district teachers, who would be evaluated in part on student performance on the state’s standards-based tests. But these negotiations are deadlocked because of the refusal of UTLA to even study the idea of complying with the law.

The plaintiffs in this case reject the proposed pilot program, which has no guarantee of ever having meaningful evaluations that actually count, even for the volunteer participants in the pilot. They point out that LAUSD has a record of “years of non-compliance” with the Stull Act and that there is no reason to believe that the pilot would even expand to the other 97 percent of teachers. “Sadly, the District has abdicated its duty to the children.” The plaintiffs demand instead that LAUSD comply with the Stull Act as soon as practically possible “in its entirety.”

-Bill Evers

The Georgia’s governor, state charter school commissioners, and parents all react to the May 16th decision.

Visit Education Next’s Charter School and Vouchers Archive to read more opinion, research, and news pieces on charter schools.

Failing schools may not only diminish the life prospects of young people, but also violate their constitutional rights. While the U.S. Supreme Court has held that education is not a “fundamental interest” under the federal constitution, most state constitutions promise children access to an adequate education. And these constitutional provisions – which most courts interpret as creating a right to instruction that equips students to compete in the global economy – could provide a means for families in substandard schools to demand reform.

In a blow to the local teachers’ union, last January a California Superior Court judge in Reed v. State of California approved a class-action settlement that halted “last hired, first fired” layoffs in up to 45 Los Angeles schools. Parents, on behalf of their children at three largely Hispanic and African-American schools, had sued the district, arguing that these layoffs created an unstable learning environment, and thereby violated students’ constitutional right to “equal and adequate educational opportunity.”

Research shows that reverse-seniority layoffs, which are a hallmark of collective-bargaining agreements and union-backed laws in many states, hit inner-city schools the hardest. Because less experienced teachers tend to aggregate in high-poverty schools, these schools are more prone to layoffs during cutbacks. In turn, the instability associated with high rates of teacher turnover falls disproportionately on poor students. Such was the case in Reed where between 51% and 72% of teachers at the plaintiffs’ schools were pink-slipped before the 2009-10 academic year. Dedicated teachers, many of whom were recruited specifically for their interest in educating underprivileged children, were replaced by rotating groups of short-term substitutes who were often not licensed for their assigned classes. And teachers called off the rehire list were frequently not motivated to work in impoverished neighborhoods, leading many to quit after only a few days.

The Los Angeles Unified School District agreed to a settlement that halted seniority-based layoffs at dozens of vulnerable schools, including the plaintiffs’. The local teachers’ union, United Teachers Los Angeles, which the court had ordered to join the suit as a co-defendant, rejected this resolution as a violation of the union contract. But the court wrote, in its approval of the settlement, that “[u]nder no circumstances can [the school district] bargain away students’ constitutional rights.”  In mid-August, the union filed an appeal.

Especially when compared to comprehensive reforms that some state legislatures have recently enacted, the immediate gains from Reed may seem too limited and localized to warrant much attention. After all, Los Angeles is merely one city and help only reached 45 of the district’s nearly 800 traditional public schools. Moreover, the protection offered to these struggling schools came at the cost of more “last in, first out” layoffs in other schools.

However, some legal academics have predicted that Reed will have sweeping, national effects – one calling the case “a shifting of the tectonic plates.” The decision has already influenced other California school districts, including San Francisco and Sacramento, to stop blindly laying off teachers – and the lawsuit could be a model for more ambitious legal action in other states. Besides challenging seniority-based layoffs, the shortage of experienced math and science teachers in inner-city districts – a problem that single salary schedules make worse – could inspire a lawsuit. Plaintiffs could also contest the quality of instruction available in their schools generally. Such a lawsuit could pressure districts to make efforts to attract and retain talented pedagogues as well as to dismantle excessive protections that can make it prohibitively expensive to fire tenured, yet ineffective teachers.

But others expect Reed’s influence to be narrower. “The impact on other states is likely to be quite limited by the fact-oriented nature of the case,” said Michael Rebell, executive director of the Campaign for Educational Equity at Columbia University’s Teachers College and author of “Courts and Kids: Pursuing Educational Equity through the State Courts.” He explained that, in Reed, “the impact of the layoffs was overwhelming – more than half of the teachers at these schools lost their jobs – and so the plaintiffs’ case could be very strongly made.” Though Rebell doubts whether the factual basis for a similar lawsuit could be as compelling in other districts, he found it “interesting and surprising” that the case came out of California, given that its constitutional protections in education have often proved weaker than other states.

Mark Rosenbaum, a law professor at the University of Michigan who worked on the case as chief counsel of the ACLU of Southern California, foresees Reed-inspired cases coming down the pike. “Reed is a reminder that collective-bargaining agreements have to yield to the constitutional rights of children,” he said. In fact, Rosenbaum noted that he was contacted by a number of intrigued school-board members, lawyers, and parents after the settlement was approved.

State constitutional provisions guaranteeing an adequate education are not a novel basis for litigation, but other cases have largely focused on deficiencies in school financing. Beginning in the late 1980’s, civil rights lawyers challenged the constitutionality of several state school systems, arguing that some schools were too underfunded to be adequate. Those cases often resulted in court orders requiring states to provide additional funding to poor schools.

Al Lindseth, an expert in school finance law and coauthor of “Schoolhouses, Courthouses, and Statehouses,” has sharply criticized these judicial remedies on the ground that they only throw money at broken systems. Further, he has argued that, by hearing these cases in the first place, state courts usurp the legislature’s policymaking role and interfere with political issues that are not suited for judicial fact-finding.

Lindseth still contends that “adequacy” cases do not belong in court, but he considers Reed more justifiable than school-finance lawsuits. Reed, he wrote in an email, marks the first time that a court “has addressed an underlying problem in the education delivery structure – the teacher transfer provisions of the union contract – as opposed to leaving in place the underlying problem and instead ordering more money in the hope that increased spending will make up for the inefficiencies caused by the underlying problem itself.”

Reed is also less troublesome to Lindseth to the extent that the court’s decision was based on students’ equal protection rights under the state constitution rather than on the guarantee of an adequate education. In fact, the plaintiffs made both adequacy and equal protection arguments, and the judge did not spell out which legal basis drove his decision. Columbia professor Rebell insisted that the judge recognized students’ right to an adequate education, while Rosenbaum of the ACLU stated that a “hybrid” of equity and adequacy concerns seemed to propel the judge’s reasoning.

These statements followed another recent California Superior Court’s holding that dismissed entirely the notion that students are entitled to an adequate education under the state’s constitution. Just as well for Lindseth, who argues that adequacy provisions – which use inexact words like “adequate,” “suitable,” or “thorough and efficient” to set standards for state schools – are “hopelessly vague” and should not be “an invitation for a court to order more spending or, for that matter, to change provisions in collective bargaining agreements.”

Rightly or wrongly, most courts have assumed jurisdiction over adequacy cases, and judges may be even more likely to do so in non-school finance cases where concerns about infringing on the legislature’s appropriations power are absent. Thus, Reed-inspired plaintiffs outside of the Golden State seem likely to have their day in court. Rebell maintains that families of schoolchildren should be afforded this right. “Without the active involvement of the courts, the national goal of closing the achievement gap will never be achieved,” said Rebell, who favors a collaborative effort between the judicial, executive and legislative branches to solve education problems. “The legislature cannot be expected to act in a principled way without judicial oversight.”

One benefit of pursuing education reform through the judiciary is that the power of special interest groups – namely, the teachers’ unions – is drastically diminished in courtrooms, where political lobbying and campaign contributions are far less influential. Yet Lindseth argues that the autocratic nature of the courts, which are generally less accountable to voters, is one of the chief reasons to reserve education policy matters for the elective branches of government.

However, the courts provide an attractive alternative when the political process fails. “I think we have demonstrated that the executive and legislative branches are not going to be responsive to kids,” said ACLU attorney Rosenbaum. “They do not come through when they are elected into office.” He recounted his participation on Governor Arnold Schwarzenegger’s Committee On Education Excellence, which included a diverse array of education experts, among them economist Eric Hanushek, who were tasked with recommending steps to improve California’s public schools. Despite two years of work that culminated in a 278-page report, none of the group’s proposals were adopted.

If Rosenbaum’s experience is foretelling, lawsuits like Reed may provide a more productive avenue for education reform in states where elected officials disappoint.

Mark Osmond, who holds a master’s degree in economics and public policy from Columbia University, is a law student at the University of Michigan. He can be reached at mark.a.osmond@gmail.com.

Like some other states, such as Vermont and Texas, Kansas has responded to school finance litigation by limiting how much school districts can spend. Following a 1991 trial court decision in Mock v. State invalidating an existing plan, the legislature under a state judge’s supervision enacted a sweeping reform that met his standards for equity yet made a concession to wealthier districts with provision for a local-option budget. The state would provide a base level of funding per pupil but allowed districts to levy additional local taxes up to a cap of 25 percent of their base. By 2010 the cap had risen to 30 percent or, with approval of district voters, 31 percent.

In the wake of the recent economic downturn, the state reduced its base payment to all districts. Noting Shawnee Mission’s nearly $20 million in budget cuts over two years and plans for school closures, the plaintiffs asked the court to enjoin the local cap.

The plaintiffs asserted that the cap violates several constitutional guarantees. Citing Supreme Court decisions in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), which held that the liberty guaranteed in the Fourteenth Amendment’s Due Process Clause includes a right of parents to control the education of their children, the plaintiffs charged that the local cap infringes on that right. As well, by forbidding additional taxes it limits their right to use their property as they wish. Still more inventive, they invoked the First Amendment right of assembly, saying that the cap prevents voters from expressing their collective wishes at the ballot box. These violations together, they contended, constitute a denial of equal protection of the law.

In the 2008–09 school year, at $4,701, Shawnee Mission was 265th out of 296 districts in state funding, receiving $2,643 less per pupil than the average. At $12,174 per pupil, the district’s spending was almost $500 below the state average. That a rich district could perversely become poor is explained by the fact that the base amount provided by the state is subject to complicated weighted increases that favor sparsely populated western and urban eastern districts while disfavoring suburban eastern ones such as Shawnee Mission. The local cap prevents districts from closing the difference.

In making their novel legal claims, which they summarized with the phrase “collective political freedoms,” the plaintiffs were assisted by high-powered legal talent from Kansas City’s Shook, Hardy & Bacon, famous for cutting its teeth in defense of cigarette makers; Washington, D.C.’s boutique firm Massey & Gail; and Harvard Law School’s Laurence Tribe, who as special consultant to Massey & Gail signed the district’s brief. This talent, however, could not secure a favorable decision. In March 2011, U.S. District Court Judge John Lungstrum dismissed the case. The school district, as an entity of the state, he said, has no right to tax beyond what the state allows. Nor could the local cap be severed from the rest of the school funding statute. Striking it down would require striking down the entire school finance structure, an option Judge Lungstrum was unwilling to entertain.

The parents have said that they will appeal. But if the local cap cannot be severed, federal courts will likely remain reluctant to wade into the state’s school funding choices. Given the problems generated in Kansas and elsewhere by school finance litigation, federal judges might reasonably doubt whether courts are suitable venues for resolving such disputes. Late in 2010, 63 Kansas districts, including Kansas City, filed a class action against the state charging that it is violating the state constitution by failing to fund schools adequately. It remains to be seen whether the Kansas courts will embrace one more round of battle in a state with a long history of finance litigation and growing signs of legislative resistance, including a revived interest among the Republican majority in amending the state constitution to discourage future school-finance litigation.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

At a 2003 party, Swanson and other school officials took away a student’s gift bags because they contained candy cane–shaped pens with an attached card explaining the religious origins of candy canes. Swanson also forbade students from writing “Merry Christmas” on cards sent to retirement homes. At another school in 2004, the principal, Jackie Bomchill, prohibited a student from giving tickets to a Christian drama to her friends. She threatened to call the police when the same student asked to distribute pencils with “Jesus Loves Me This I Know, For the Bible Tells Me So” during her class birthday party. The principal also threatened to expel the young girl if she attempted to distribute “Jesus pencils” again. The principal did allow her to give out pencils embellished with a moon design. As a result of these incidents, parents sued, claiming that their children had been subject to unconstitutional viewpoint discrimination.

The school district responded in 2005 by defining when such materials could be distributed: 30 minutes before and after school, at three annual parties, during recess, and throughout school hours, but only passively, at designated tables. This policy, except for a prohibition on distribution during lunch periods, survived in court, but the larger issue, officials’ claim of qualified immunity, remained to be decided.

The Supreme Court’s free-speech doctrine is relatively clear. The Court has said that government must be viewpoint neutral when regulating speech, meaning that it cannot restrict speech because of the motivating ideology of the speaker. Such restrictions are almost always found unconstitutional. But the complicating question here was, what free-speech rights do elementary school students have? The officials argued that the Supreme Court has never held that the Constitution prohibits viewpoint-based discrimination in elementary schools and they were therefore entitled to qualified immunity, which would free them from personal liability. School officials under this view could engage in all the viewpoint-based discrimination they wanted. Zoroastrian speech could be allowed, while Mormon speech could be suppressed. Pencils saying “Jesus Does Not Love Me This I Know” could be distributed, while those contending that he does could be confiscated.

Federal courts, so far, have not been sympathetic to this broad claim of arbitrary authority. Over the past two years, the Plano officials have lost their request for qualified immunity at trial and on appeal. A Fifth Circuit panel ruled that they should have known that under Tinker v. Des Moines (1969) and other cases like Good News Club v. Milford (2001), elementary school students have speech rights. Plano’s counsel apparently detected more ambiguity in these precedents than did the Fifth Circuit. Tinker, the court explained, allows for nondisruptive student speech, while Good News Club applied the free-speech clause to elementary-school-age students and prohibited viewpoint discrimination in the use of school facilities. Summing up, the court said that the officials had consistently argued “that qualified immunity should be granted because elementary school students do not have any First Amendment rights. No law supports Appellants’ novel proposition.” The Fifth Circuit has agreed to hear an en banc appeal of the officials’ claims, but we suspect they will not fare any better. Even if the school officials do manage to win qualified immunity and escape personal liability, courts will almost certainly never sanction the kind of discrimination alleged in Plano, leaving school districts solely liable for the conduct of their employees.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

According to an Associated Press report on the Kansas decision,  allowing individual jurisdictions to set their own tax “could bring down the state’s entire school financing system.” The parents in Shawnee Mission wanted just the right to ask local voters if they wanted to pay more. The court said No. (Read the 21-page order here.)

As the pressure to hold down school costs mounts, property tax caps have become a favored option because they remain a favorite form of funding local government agencies, including school districts.  But the objections from wealthier communities, which can afford to pay more, are also mounting.  Twelve towns in New Jersey have announced plans to have votes on exceeding the Garden State’s new property tax cap, a local opt-out option that the new cap law allows.

Though there is more to learn about this case and its legal implications,  if the press reports are accurate, the Kansas ruling appears to mean that there can be no opting out of the cap, even if local voters wanted to.  This hits hard at some core American principles. “The local option tax is capped so wealthy districts do not have an unfair advantage over poorer ones,” reports the A.P.  In the battle to get poor school districts adequate or equitable funding, at least there seemed a moral purpose to the argument.  But the Kansas case seems to issue a different kind of challenge,  especially as more states opt for centralized funding mechanisms.  Will we allow the kind of inequity which allows for excellence?  I predict a new Lake Wobegon, where  all the children and their teachers are average.

–Peter Meyer

The Supreme Court’s near-unanimous decision allowing protests at military funerals is getting a lot of attention this week, raising questions about the limits of free speech. In the education realm, buzz is building about an Arizona charter school teacher who got fired for refusing to remove a bumper sticker from her car. (It reads, “Have you drugged your kid today?”)

From 3,000 feet away, the school’s decision to terminate her contract strikes me as highly questionable. (Supposedly some parents were upset with the anti-Ritalin, anti-anti-depressants message, which I guess they found unfair or mean.) But regardless, the bigger question is whether her free speech rights were violated. On that score, it seems to me (not a lawyer, mind you) that it’s not a hard call: if she was parking her car on school grounds, then there’s little question: she had no broad right to free speech.

The courts have long held that employers can limit the expression of their employees. That’s doubly true for schools, which can regulate the speech of their teachers, at least while they are working in their official capacity. To rule otherwise would be preposterous–to say that teachers have the right to teach whatever they’d like, for instance.

If the teacher wanted to keep the bumper sticker, all she had to do was to park her car off school grounds. But just as federal employees don’t have the right to park a car with a political bumper sticker in their office garages, neither do employees have the right to park a car with a message their employers disagree with in their employers’ lot.*

Still, the irony is this: Supreme Court decisions indicate that if this teacher had been a student, she would have indeed enjoyed the right to park her bumper-sticker-laden car on school grounds. Under the “bong hits for Jesus” ruling, schools can’t regulate the content of student expression unless it is disruptive or promotes a pro-drug-use message. (A brand-new federal court decision just found that students have a right to wear “Be happy, not gay” tee-shirts to protest gay tolerance initiatives.) Particularly since this bumper sticker offered an anti-drug use message (different drugs of course!) it seems like it would sail right through the Constitutional gauntlet. (Schools could, I suppose, outlaw all bumper stickers from cars parked in their lots, since such a policy is content-neutral.)

This crazy outcome–whereby students enjoy more rights than their teachers do–is the result of free-speech confusion going all the way back to Tinker and its declaration that students don’t abandon their rights “at the schoolhouse door.” That’s preposterous and, as this example shows, increasingly untenable–unless we want to continue making teachers second-class citizens in their own schools.

-Mike Petrilli

* Actually, I’m assuming that schools are allowed to limit teachers’ speech anywhere on school grounds, including parking lots, though I’m not totally sure any court has actually ruled on that. And federal employees’ speech rights are regulated by the Hatch Act, which wouldn’t apply here.

As standards of qualification, the law names possession of a bachelor of arts, subject-matter competence, and certification or licensure by the state. Importantly, it leaves standards of certification to the states.

California, like many states, has relied heavily on interns, such as members of Teach For America (TFA), to staff schools in poor areas. Public Advocates claims that it has been able to do this because a Department of Education (DOE) regulation fails to implement the law faithfully. The offending regulation provides that teachers enrolled in “alternative routes” to certification—which is government-speak for Teach For America and similar programs—may be found qualified if they are making satisfactory progress. Public Advocates, on behalf of Californians for Justice, the California chapter of ACORN, and individual parents of children in Title I schools, says that this creates an impermissible loophole in the law: that to be certifiable, enrollees must have completed their alternative route. About 10,000 teachers in California fall short of the standard that the lawsuit seeks to enforce.

The suit has followed a quixotic path. Initially, in 2008, a district judge held for the U.S. secretary of education, ruling that the department’s regulation did not violate the discernible intent of Congress. The plaintiffs appealed. On appeal, the federal government introduced the argument that they lacked standing because their case failed a test of “redressability.” Even if the court ruled in their favor, the secretary could not tell California how to define certification.

At first, the appellate court embraced the government’s claim, and remanded the case with instructions to dismiss for lack of standing. But one of the judges evidently had second thoughts, because the court granted the plaintiffs’ petition for a rehearing, and in September 2010 reversed both its own decision about standing and the district judge’s ruling about the validity of the department’s regulation. It found that the regulation does violate the intent of Congress.

Much of the discussion within the court centered on how California would respond to a decision for the plaintiffs, and how the  federal government might induce a response that would redress the alleged injury.

The court majority did not dispute that NCLB leaves certification to the states, but said that even if the secretary could not dictate California’s standards, he could threaten to withhold grants-in-aid from a state that is not in compliance with the law. The court seemed to think that this would be a viable course of action.

Beyond the federalism question lies the deeper issue, seemingly of less concern to the court majority, of where to find highly qualified teachers to staff classrooms in poor and minority areas. Even when reinforced by a court, Congress cannot solve this problem by decree. As Judge Richard Tallman said in dissent, California cannot order highly qualified but unwilling teachers into schools where they don’t want to teach. Teachers, he averred, “are human beings…not pawns on a chessboard that can be distributed at will.”

We very much doubted that the secretary of education would threaten the country’s most populous state, which teeters on the brink of bankruptcy, by holding back funds. Congress, under pressure from TFA and perhaps taking account of the severe disruption of schools that could result from the 9th Circuit’s decision, resolved this judicially created imbroglio by writing the DOE’s regulation into law. In typical congressional fashion, it added language to December’s continuing resolution to fund the government until March. The 9th Circuit, which is routinely overturned by the Supreme Court, can add Congress to the list of institutions dissatisfied with its legal judgment.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

Unfortunately we did not have space in our article to address how the case exposes one of the glaring pathologies of judicial policymaking.  The lawsuit was brought by Public Advocates, which claimed that students were being harmed “nationwide” by the Department of Education’s policy of allowing teachers seeking alternative certification to count as highly qualified.  If Public Advocates and its attorneys had their way, they would have imposed their own preferred policy on the state of California through the courts.  But one has to ask, how would Public Advocates and its motley assortment fellow litigants ever have the capacity to really know the interests of those who would be affected by their lawsuit?  The obvious answer is that they could not.

The adversarial legal system, combined with peculiar features of American law like class actions, allows a single group or individual to claim to speak on behalf of millions of people that they do not, and never will, know.  Elected institutions, however imperfect, do a far better job of sorting the various interests and needs of the public.  What, after all, would parents of children in schools with large numbers of TFA teachers think about Public Advocates’ claim to be helping their kids? When informed of the massive loss of teachers in their schools, I suspect that they would tell Public Advocates to put their allegedly good intentions back where they belong.  After all, the interests of these parents are already represented on school boards, in state legislatures, and in Congress.

Hence, the other lesson of Renee v. Duncan is that just because a special interest group grandiosely styles itself a “Public Advocate” hardly means that it is one.

-Joshua Dunn

In March 2010, to Mayor Michael Bloomberg’s and Chancellor Joel Klein’s chagrin, a New York State trial judge stopped the planned closure of 19 chronically failing schools in New York City. As a result, 19 demonstrably dreadful schools will remain open for at least another school year.  Yet the case and its aftermath show that school districts can, with sufficient effort and creativity, partially maneuver around such judicially imposed obstacles.

Klein, who has sought to close underperforming schools as part of his effort to improve the lagging district, had announced that he would seek to both close the schools in December of 2009 and to recycle some of the facilities as charter schools. The United Federation of Teachers (UFT) attempted to manufacture a political controversy over the closures by renting 50 buses to transport protestors to hearings before the city’s Panel for Educational Policy. In the final hearing, which lasted nine hours, the panel approved Klein’s recommendations. The UFT promptly sued and was joined by the local branch of the NAACP, which claimed, despite the dreadful education that the schools inflicted on pupils, that children’s rights had not been considered.

The lawsuit centered on the state legislature’s 2009 revision and reauthorization of mayoral control of the school district. The revised law set out the conditions that the city must follow when closing or significantly changing the use of a school. The requirement under dispute is that the city must provide an “educational impact statement” (EIS) for each school slated for closure. The UFT claimed that the city’s impact statements were insufficient. Naturally, the city thought that it had provided the requisite information, including the budgetary implications, effects on administrators and teachers, and the schools’ progress reports and graduation rates.

Judge Joan Lobis sided with the union. While admitting that “the statute does not specify the information that an EIS should include,” she nevertheless ruled that the city’s impact statements contained “boilerplate” and insufficient details. Significantly, Lobis’s ruling failed to explain what information the city would need to provide to satisfy the law. The city appealed but fared no better. In July, an appellate court, echoing Judge Lobis, ruled that the city had failed to meet its obligations by providing only “obvious” information.

While the city vowed to eventually close all 19 schools, Klein appears to have found a less controversial, if still partial and delayed, route around this judicial roadblock. The city announced in June, prior to the appellate ruling, that it was going to “transform” 11 of the district’s schools and dramatically overhaul or close 23 others under a $300 million federal School Improvement Grant (SIG) program. Eight of those 23 were on the original list of schools the district wanted to shutter. Under the grant program, the options for the 23 schools are established by the federal Department of Education. The district can impose one of three plans: turnaround, restart, or closure. The turnaround plan requires firing the principal and at least 50 percent of the teachers. The restart plan replaces the district school with a charter school. The closure plan’s consequences are self-evident. These reforms, though, will not be implemented until the 2011–12 school year. The transformation model, reserved for the 11 “least-worst” schools, involves replacing the principal, bringing in more support services, and making curricular changes. Opposing these measures would put the teachers union in an uncomfortable position since it would mean rejecting the federal money. So far the UFT has not announced plans to sue in the event that the district chooses to close or restart any schools, the two most likely options for the schools previously slated for closure.

In addition to sidestepping litigation, this grant program has helped the city convince the teachers union to accept a limited form of performance pay for teachers. Schools scheduled for transformation will be able to hire teachers with two new designations, master teacher and turnaround teacher. Teachers at both levels will receive 30 percent more in their base salary. To receive this designation a teacher must have demonstrated the ability to raise student test scores.

Since students in 19 schools will be subjected to at least one more year of educational mediocrity, this outcome is hardly optimal. But the city’s response shows that school districts and their long-suffering students do not have to be completely victimized by litigation.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs.

The patio of my local coffee bar in Washington, D.C., is as good a place to think about truancy as any other. A high school with 1,500 students is two blocks away; a middle school with 900 students is a block beyond that.

Between 9:30 a.m. and 2:30 p.m. every school day, two police officers in a white Ford van sweep the neighborhood. Armed with a gun and dressed in blue fatigues, a curly-haired officer hops out of the van, marches through the coffee shop, glances into a shoe store next door, peers down the subway escalator, hikes to a bus stop, and then retraces her steps to take in a drugstore and a Best Buy.

Typically, the two-officer patrol, one of seven full-time truancy patrols in D.C., picks up four or five youngsters at lunchtime and returns them to their schools. Another four or five “runners” take off, knowing that the officers aren’t allowed to give chase into the neighborhood’s busy streets.

As the officer makes her way through my Starbucks, some youngsters produce cell phones with parents on the other end to corroborate excuses. Others hand over school-issued passes. A few flash identity cards from Maryland schools. The D.C. officers haven’t any authority over youngsters from across the state line, a mile away; as it turns out, Maryland police haven’t much authority, either. By the end of the school year, D.C.’s truancy officers are on familiar terms with a circle of regulars. “You got your hair cut,” one officer remarked to a girl named Ashley, who produced a pass that gave no explanation for her absence from school.

Next, she checked the ID of a Maryland 9th grader named Clyde, who explained that he had missed so much school already it wasn’t worth attending for finals. How do you get away with skipping school, I asked the boy, who wore a Metallica ski cap despite the warm weather. “I just do,” Clyde said. And what do your parents say, I persisted. “They can’t force me to go to school,” he said.

School is the center of social life for most youngsters. It’s the necessary step to a good job and income, a message these kids have been hearing since kindergarten. Taxpayers spend almost $600 billion a year on public education, an average of more than $10,000 per student.

So, why are so many kids willing to dodge traffic, hide out in shoe stores, and risk apprehension by an armed officer to skip school?

Counting Kids

States and school districts vary in how they define truancy, which means that nationwide truancy statistics don’t exist. In Maryland, a truant is someone who has 18 unexcused absences per semester. In Texas, it’s 10 unexcused absences within six months. In Florida, it’s 15 in 90 calendar days.

Complicating any attempt to compare statistics are divergent state compulsory-education laws. In D.C., youngsters must attend school until age 18, in Maryland until age 16, and in Pennsylvania until 17.

No Child Left Behind lets states use attendance as an additional indicator of adequate yearly progress, and 37 states do that. But attendance is measured differently from truancy: Attendance is a daily average, and a few youngsters with perfect attendance can hide the absences of those who stay away for days at a time. Attendance tends to hover at about 95 percent in most state reports.

Where states do report truancy, the numbers are staggering. California reported that 24 percent of its 6.2 million public school children, some 1.5 million kids, were truant (missing more than 30 minutes of instruction without an excuse at least three times) in 2008–09. Wisconsin disclosed that 15.4 percent of its high-school students were truant (absent without an acceptable excuse for part or all of five or more days during a semester) in 2008–09, including 62 percent of its African American students.

The New School calculated that 24 percent of New York City’s 350,000 high schoolers had 38 or more absences in 2007–08 (the report didn’t distinguish between excused and unexcused absences). Washington, D.C., reported that in 2008–09, 20 percent of its students were truant, that is, absent 15 days without an excuse. But the district also said that it missed counting about 10 percent of its youngsters, so the true number could be higher.

Even a simple calculation suggests that adds up to a bad deal for taxpayers. If 20 percent of D.C.’s 46,000 students miss 15 days each, that’s the equivalent of 766 full school years. The U.S. Census Bureau calculates that the D.C. schools spent an average of $14,594 per pupil in 2007–08. That adds up to $11 million spent by the district on no-shows.

California, like six other states, funds its schools based on average daily attendance rather than on the once-a-year or once-a-semester headcount that many states and Washington, D.C., use. Some 16 percent of the Los Angeles Unified School District’s 272,000 students were truant in 2008–09. That means the district lost at least 130,000 student days of funding.

State and federal data indicate that truants tend overwhelmingly to be African American and Hispanic. About as many girls as boys are truant. Almost half live in single-parent households, and about one-third live in poverty. Truancy spikes at about age 15, when most youngsters enter 9th grade and the less-supportive atmosphere of high school.

Diane Groomes, an assistant Washington, D.C., chief of police, whose responsibilities include the truancy patrol, said she is noticing that truants are getting younger. This year, her officers picked up more 12-year-olds than in the past, and even a growing number of 10- and 11-year-olds. Why? “Unfortunately, they’re growing up fast,” she ventured.

What’s the Problem?

Back at my coffee shop, I fell into conversation with a 10th grader who said her name was Devora. She had a school pass to keep a medical appointment, although she seemed to be settling into her patio chair for the day. Devora had big plans to study political science or philosophy in college, but she admitted she was absent “a lot,” and she put the blame on—how’s that?—her high school.

“If classes showed more relevance to life—not equations and stuff,” she might attend, she said. A chemistry teacher “yells a lot,” she added. A math teacher has “missed more school than I have. We don’t learn anything.” An English teacher is assigning “3rd-grade work.” Kids “feel trapped in school. The only thing on their mind is they want to get out.”

I read Devora’s indictment to Edward Deci and AnneMarie Conley, who study achievement motivation—Deci at the University of Rochester and Conley at the University of California, Irvine—and they knew all about it.

Deci, a psychologist, co-authored self-determination theory, which holds that we’re motivated to complete a task when we feel we’re competent to do the work, have autonomy in how we go about it, and feel some “relatedness” to the situation; we have friendly teammates or a supportive boss, for example. For lots of kids, school offers none of that, Deci says, and waves of school reforms are only making things worse, he adds.

“Kids know if they can’t do the work. They’re attuned to ‘these people are pushing me around.’ They know if teachers are relating to them in a warm kind of way or a demeaning kind of way,” Deci told me.

Middle schools, desperate to keep order in a hothouse of surging hormones, slap on tighter rules at the very time that kids crave more independence. They also tend to be larger and have many more students per grade than elementary school (see “The Middle School Mess,” features). Kids can have a tough time finding a caring adult or a circle of friends in a big school, and the pressure on teachers to boost achievement may add to that lack of relatedness. “When teachers get pressured on accountability, they get more authoritarian with kids. What kids need is autonomy and support, not control,” Deci said.

Conley, an education professor, studies expectancy-value theory, which doesn’t contradict Deci but says that we’re also motivated by what we expect to get out of a task: what do I gain vs. what do I give up by going to class, for example? Most kids see a social cost in playing hooky: They’d miss being with friends, their peers would think less of them, or they’d suffer a wound to their self-image.

But the calculation comes out differently for other kids. Going to school may mean they can’t hang out at the mall or use drugs. They might miss some serendipitous fun with truant friends or could lose some of their cool, if being truant is cool among their peers.

One morning near the end of the school year, I sat in on a string of meetings between students at Francis Scott Key middle school in Silver Spring, Maryland, and a group of adults—a family-court judge, a district attorney, a school social worker—who are part of a truancy project sponsored by the University of Baltimore School of Law.

At one point, the mentors congratulated a chubby 7th grader for his improved attendance and asked him to explain his success. The boy said his family couldn’t afford to pay for cable television any more. “I get bored so I do my homework and go to bed” instead of staying up late and missing school the next day, he added. What would he do if the family got cable again, Montgomery County judge Joan Ryon asked, hoping for lightning to strike. “I’d probably do the same thing again,” he said.

“Costs really matter,” Conley said when I told her the story. School and homework cost TV time, and that’s a price some kids won’t pay.

Who’s to Blame?

While the kids were telling me that truancy is a result of dysfunction in the schools, adults were telling me that it’s the result of dysfunction in the home. Both are probably right.

In late June, I sat in a Montgomery County courtroom, just outside Washington, D.C., as two criminal misdemeanor cases were called against three parents for failing to send their children to school. The first case was against 30-year-old Stephanie Terrell and Alexander Norris, who spoke up only to correct the court’s misimpression that he had fathered all eight of Terrell’s children or that he lived with the family. He did neither.

Attendance records showed that Terrell and Norris’s oldest child, a middle schooler, missed 14 percent of his school days in September 2009, 45 percent in October, 50 percent in November, and 71 percent in December. Four siblings did no better: two missed half of November, when the family was homeless; a third missed 44 percent; and a fourth missed 94 percent because he lacked immunizations.

Montgomery County had clearly tried to help. The schools scheduled parent-teacher conferences, home visits and, finally, three Truancy Review Board hearings, where a panel of school and social workers hoped to get Terrell and Norris to sign an attendance contract (the couple skipped two of the hearings). Social services found the family a seven-bedroom house, and produced a grant to send the children to summer camps so Terrell could attend a job-training program. “She really does want these children to go to school. She’s just overwhelmed,” Terrell’s lawyer told the judge.

Minutes later, the court called the case of Mayra Yesenia Argueta, a worried-looking woman, dressed for work, who explained that she awoke her 14-year-old daughter for school before hurrying off to her job. The state’s attorney said the girl didn’t show up.

Judge Stephen Johnson, visibly saddened by the Terrell-Norris case, admonished all three parents on the importance of education for their kids. “They need it as much as food and clothing,” he told Terrell and Norris, who—oh, the irony—works in an elementary school. But Johnson has few tools to deal with these parents, and he seemed to admit it.

He put Terrell and Norris on probation so the court can monitor their children’s school attenda nce. Court supervision is “a big stick…that’s all it is,” he told them. “Do the best you can,” he told Argueta, as he put her case on hold for six months while ordering her to see that her daughter attends summer school, the same girl who had failed to attend so much of the regular school year.

Truancy laws generally target parents because, the reasoning goes, they have violated the state’s attendance laws by not getting their kids to school. Educational neglect, the legal term in many jurisdictions, is a misdemeanor that generally carries the threat of jail time and a fine. But enforcement is typically lax: Washington, D.C., is one of only three or four cities with dedicated truancy patrols. Other jurisdictions depend on beat patrols or the occasional citywide sweep. Prosecutions are rare because schools see truancy as an issue for social services rather than the courts.

Under Maryland law, police can’t pick up truants, even to return them to school, because it is the parents who are committing the offense. Montgomery County counted 5,000 “habitual truants” between 2005 and 2010, but prosecuted the parents of just 55 of them. Sentences are minimal—10 days in jail and a $50 fine in Montgomery County—and penalties are seldom imposed. What judge is going to risk sending children into foster care while their mother cools her heels in jail?

The courts generally deal with the truants themselves only when children who already are under its jurisdiction fail to go to school: Attendance is usually a condition of probation for young offenders. The courts also can declare a child to be “in need of supervision” for missing school. But in inner cities, truancy takes a backseat to serious offenses. Some 3,752 juvenile cases were filed in D.C.’s family court in 2009, including four rapes and three armed robberies by children aged 10 to 12. The 135 child-in-need-of-supervision petitions seem almost trivial by comparison.

A few states that have aggressively enforced truancy laws have come to regret it. In 1995, Washington State passed a law that, among other things, required schools to file court actions when youngsters have seven unexcused absences in a month or 10 in a year. Students face up to seven days in juvenile hall and parents are subject to fines. The law overwhelmed the courts: 15,000 truants went to court in 2005. Lawmakers now are trying to amend the law to make truancy reporting discretionary.

School districts often have elaborate protocols for dealing with truancy. An automated call system in Fairfax County, Virginia, made 625,014 calls to parents about attendance issues between July and May, or almost four per Fairfax student. In D.C., an automated call notifies parents whose kids were absent that day and, for high schoolers, which class periods they missed. A teacher calls or sends a letter after a third unexcused absence. After the fifth absence, the school dispatches a certified letter asking for a parent conference.

After the 10th absence, the school attendance committee is convened to devise an intervention. After 20 absences, the city’s social-service agency is called in and, after 25 absences, the case is referred to family court. If the truancy patrol picks up a youngster, the process fast-forwards to the 5th day, the certified letter and parent conference.

But that all supposes that youngsters don’t erase telephone messages or destroy letters, and that they don’t slip out the back door of the school after attendance is taken. “It’s one thing to say we’re getting kids back in school; it’s another thing to know they’re back in class,” said Curtis Watkins, the director of LifeSTARTS, which works with youngsters in two Washington, D.C., middle schools. His counselors check classrooms three times a day to be sure that students who are targeted by the program are still in class.

It also supposes that parents want to and can get their children to school. Hedy Chang, who heads a research project called Attendance Counts, has calculated that children living in homes without enough food missed two days more than better-fed kids, children whose mothers are unemployed missed two more days than those whose moms had jobs, children whose mothers had less than a high-school education missed 1.5 more days, and those whose mothers are in poor health missed two days more.

Chang’s research was on kindergartners, but it would also seem to apply to older children. At the Francis Scott Key middle school meeting, the mentors told a 7th grader who had been tardy 58 times in three months that her attendance hadn’t improved enough for her to graduate from the program and receive the promised reward, an MP3 player. The girl shrank sullenly into her hooded sweatshirt and said she’d been “too tired” to come to school one day the previous week because she had had to watch a three-year-old niece who “screamed all night long.”

On other weeks, the girl had explained that another family had moved into the house and disrupted things, that she was tired because boys came around to visit her at night, and that her mother takes medication for a chronic illness and can’t awaken herself to get the girl off to school.

Truancy is never the problem, school staffers, social workers, prosecutors, and police officers told me over and over. Truancy is the symptom.

Promising Efforts

When Mel Riddile took over as principal of Fairfax County’s J. E. B. Stuart High School in 1997, he said, average daily attendance for the year was 89 percent, which means there were 19 absences per student. Within three years, Riddile says, average daily attendance was up to 96 percent. There were some easy victories: early on, Riddile linked a computer to Stuart’s phone system, which made autodial wake-up calls to youngsters with the worst attendance records. One youngster thanked him, Riddile said: No one had ever cared whether he came to school.

But mostly, cutting truancy was a hard slog. Some Stuart parents from Central America and the Middle East weren’t interested in having their daughters complete school. Teacher absenteeism was high, Riddile said, which seemed to some kids to validate their own absences (the daily absentee rate for teachers nationwide is about 5 percent, according to some studies, compared to about 1.7 percent for private-sector workers).

Riddile, now associate director of the National Association of Secondary School Principals, held parent conferences aimed at forging “partnerships” with families. He referred 70 youngsters to court for child-in-need-of-supervision hearings: That was enough to jolt all but 12 into coming to school. And to avoid diffusing staff energy, he kept his focus on just two or three outcomes. They’re reflected in the name Riddile chose for his reform efforts: RAGS, for Reading Plus Attendance Means Better Grades and a Safer School.

The challenge is even harder in tumultuous inner-city schools, although no-excuses charters seem to be making headway. KIPP DC says that from 3 to 8 percent of the students in the five grade schools that it operated last year had 15 or more unexcused absences, the D.C. definition of truancy. KIPP operated just one high school, and it enrolled only 9th graders, which likely skewed the truancy rate downward compared to the city’s district schools. But KIPP also takes a tough stand. Parents and students sign an attendance contract during a lengthy home visit. Kids can be dropped from the rolls after 20 unexcused absences, and a handful have been, says Irene Holtzman, the director of accountability, although the school is “still willing to have a conversation” with youngsters who pile up more absences.

Sick days require a doctor’s note at KIPP. Social workers provide wake-up calls, go-to-bed calls, and bus passes, if necessary, as well as the occasional McDonald’s lunch as a reward for good attendance. “It’s helpful to frame expectations up front,” Holtzman adds.

What to Do?

A generation of school reforms has aimed at making school a place that youngsters should want to be. Districts are slowly breaking up megaschools and weeding out teachers—hopefully the yellers and those missing in action that Devora complains about. They’re adding dual-enrollment programs that allow high-school youngsters to take some college classes. A few are setting graduation requirements that are based on learning rather than “seat time,” and that could move youngsters through high school more quickly. Fairfax County, like many districts, no longer flunks a youngster for missing class if he otherwise earns a passing grade.

But critics also say that the No Child Left Behind focus on testing has narrowed and standardized curricula, and discouraged teachers from experimenting with lesson plans that do more than get kids past a test. Deci proposes a vast reform of all this reform in an effort to motivate kids. Abandon standardized testing and curricula to give teachers and students more autonomy, he says. Create more small schools where youngsters can develop relationships with teachers and peers. Individualize instruction so it accommodates youngsters who are behind and challenges those who want to race ahead.

Conley proposes finding out what kids feel they give up by being in school. “We can’t just tell them to go to school; we have to increase the costs of not going to school,” she says.

Those costs already seem extraordinarily high to taxpayers, employers, the police, the schools, social workers, college admissions officers, and most parents. Truancy seems a dumb choice and a lousy bargain to us. Still, on a spring afternoon at Starbucks, teenaged customers were sitting with me in the sun.

June Kronholz is a former foreign correspondent, bureau chief, and education reporter for the Wall Street Journal. She lives in Washington, D.C.

The Supreme Court declared in 1954 that “separate educational facilities are inherently unequal.” Into the 1970s, urban education reform focused predominantly on making sure that African American students had the opportunity to attend school with their white peers. Now, however, most reformers take as a given that the typical low-income minority student will attend a racially isolated school, and the focus, under the banner of “No Excuses,” is to make high-poverty, high-minority schools effective. What role should racial desegregation play in 21st-century school improvement? In this Education Next forum, Susan Eaton, research director at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, makes the case for refocusing school reform on creating integrated schools. Steven Rivkin, professor of economics at Amherst College, questions whether desegregation efforts fulfilled their promise and points out complexities to the issue that researchers have barely begun to examine.

EN: In which ways did the school desegregation movement succeed? Fail?

Susan Eaton: The school desegregation movement improved educational opportunities for students of color, particularly for black students in the South. It also created a generation of people for whom diversity was the norm.

The movement did not fail. Rather, government failed to actively support desegregation and, during the Nixon and two Bush administrations, actively worked against it. Not long after Brown, the courts began backing away from desegregation as a means toward equal educational opportunity. The rollback started with the Milliken v. Bradley decision in 1974, which prohibited the incorporation of suburbs into urban desegregation plans. This meant that in the North and Midwest especially, exclusive white suburbs were exempted from desegregation, even if their zoning and other housing policies had contributed to segregation in the region.

Desegregation’s critics hold it to too high a standard, implying that unless desegregation solves all educational challenges, it is not worth the trouble. No policy could survive such a test. Desegregation was never meant to be a remedy for low test scores. Rather, it was and is one underlying condition with the potential to engender higher-quality schooling, improved race relations, and, in the long run, a more democratic, more equal society.

Diverse schools committed to equal opportunity hold vast, often untapped potential, but it is up to teachers, parents, administrators, and other sectors of society to harness it. When diverse schools institute rigid academic tracking that places students of color in low-level classes or employ harsh discipline policies that exclude students rather than providing support, they are not truly integrated. The success of today’s diversity movement hinges on our ability to move diverse schools closer to true integration.

Increasing linguistic and cultural diversity enriches our society. A modern integration movement must incorporate immigrant students and English language learners. The sharp segregation of these groups from mainstream opportunity limits their chances for social mobility and encourages prejudice against them.

Steven Rivkin: Desegregation efforts did improve the racial balance of public schools. Although demographic changes tempered the effects somewhat, school enrollment data show substantial changes in the racial makeup of schools after 1968. The South experienced the largest increase in school integration and the Northeast the smallest. Nationally, the share of African American students’ schoolmates who were white rose from 22 to 36 percent between 1968 and 1980 before falling to roughly 30 percent in 2000. The decline in this measure during the 1990s resulted from the continued decline in the white enrollment share.

The most striking changes occurred at the bottom of the distribution, as the share of African American students attending schools with fewer than 5 percent white students fell by more than 50 percent after 1968.

Other effects are difficult to identify with certainty. Desegregation programs in some cities prompted “white flight,” although over the long run it appears to have had only a small effect on housing patterns in most communities. The evidence on academic, labor market, and social outcomes is sparse.

What I believe can be said is that desegregation failed to be the panacea some believed it would be. The expectation that desegregation would dramatically reduce or eliminate racial achievement gaps was unrealistic given the myriad differences in family, school, and community circumstances. The persistent education and earnings gaps are all too visible, as are the higher rate of incarceration among young black men compared to white men and the much higher rate of teen childbearing for young black women compared to white women.

The key question is whether specific desegregation programs brought improved outcomes for African Americans. Unfortunately, there is little good evidence to bring to bear on this question. The persistent, large outcome gaps and waning support for desegregation do provide grounds for exploring other policies, including enriched early-childhood education and substantially different models for delivering elementary and secondary education.

EN: Is desegregation even politically and legally feasible in 2010? Why not focus on integrating schools by class rather than by race?

SR: The legal impediments to desegregation by race are formidable. Desegregation advocates may ask state courts to impose desegregation orders based on constitutional guarantees for an adequate education, as has been the case in Connecticut. But the extent to which state constitutions provide support for desegregation by race is unclear.

The political climate also shows declining support for race-based remedies. A number of states, including California, have passed referenda that prohibit the use of race by schools and other public institutions to distinguish among applicants. In addition, African American and Hispanic support for desegregation appears to be declining.

Many large cities and their systems of neighborhood public schools are extensively segregated by income. The expansion of charter and magnet schools, along with private school options, does provide some opportunities for children in high-poverty areas to attend schools that are more mixed in terms of class and income. Yet the decision by a small number of children to opt out of neighborhood schools may adversely affect the academic and social environment in those schools, as the remaining children are likely to have less-involved families on average. An income desegregation program that involves all students may avoid the concentration of children with fewer family resources in particular schools.

A number of districts across the country have moved to equalize across schools the share of poor students, as measured by eligibility for subsidized lunch. Although African American and Hispanic children are more likely than whites to be eligible for a subsidized lunch in most communities, poverty crosses racial and ethnic lines, and desegregation by income produces a very different result than would a policy of racial desegregation.

Evidence on the achievement effects of desegregation by income is limited by both an absence of detailed information on family income (including indicators for severe poverty or high income) and the difficulty in separating the effects of students’ own circumstances from the influences of peers. It is not surprising therefore that findings are mixed. The landmark 1966 Coleman Report highlighted the importance of peer environment along a number of dimensions, but work by Caroline Hoxby and Gretchen Weingarth in 2006 suggests that the share of poor students has only a modest effect on achievement once differences in the prior achievement of students have been accounted for. However, lower peer achievement is a potentially important channel through which a high poverty rate could affect the educational environment, and from a policy perspective what matters is the total effect of a high poverty rate. That includes any effect of student poverty on teacher quality; in a 2004 study, Eric Hanushek, John Kain, and I found that poverty contributes to teacher turnover and to schools having a higher share of teachers with little or no prior teaching experience.

In comparison to poverty rate, measures of socioeconomic status (SES) and parental education appear to be more closely related to achievement and other outcomes. In a 1991 study at the high-school level, Susan Mayer found that attendance at a high-SES high school reduces teen pregnancy and the probability of dropping out. And in a 2002 study that accounts for observed and unobserved school and family influences, Patrick McEwan found that achievement appears to be more strongly related to the average education level among the mothers of children in the school or classroom than to average income. It may be that parental education provides a better proxy for the level of parental support or student engagement than the available poverty measures.

Importantly, even if these or other studies succeed in isolating the causal effects of peer SES, they do not provide direct evidence on the effects of specific income desegregation efforts. Exposure to higher SES peers, accomplished through school busing, may produce very different effects than exposure through family choice of neighborhood. Just as is the case with racial integration, it is imperative to gather additional evidence as part of any efforts to desegregate by income or SES more generally defined.

SE: Secretary of Education Arne Duncan recently stood at the Edmund Pettus Bridge in Selma, Alabama, and said, “I think Dr. King would have been disheartened to see that 56 years after the Supreme Court decided Brown v. Board of Education, many schools are still effectively segregated in America. Everywhere we go, people want to know how we can best help children. We often get asked, ‘How can we better integrate our schools, promote a healthy diversity, and reduce racial isolation?’”

In Parents Involved in Community Schools v. Seattle School District No. 1 (2007), the U.S. Supreme Court reaffirmed as compelling government interests both the attainment of racial diversity and the avoidance of segregation in schools (see “Affirmative Action Docketed,” legal beat, Winter 2007). In his controlling opinion, Justice Kennedy laid out several means through which educators could reach those goals. These included siting schools so that they might draw from demographically distinct neighborhoods and recruitment in neighborhoods of color or in white neighborhoods to create a diverse mix of students, among other possibilities.

If the goal is to provide truly equal educational opportunities to all children, then opportunity is what we should measure and lack of opportunity what we should seek to remedy. Each community needs an accurate assessment of who does and does not have access to high-quality education. Inequality in access goes far beyond socioeconomic status, and reliable measures would incorporate a more granular understanding of what limits educational opportunities. To this end, the Kirwan Institute for the Study of Race and Ethnicity at the Ohio State University has developed a system of “Opportunity Mapping” that assesses the access people have to conditions that either support or undermine economic and educational opportunity. They often find that people of color are still disproportionately locked out. Findings like this demonstrate the need to keep race and past and present racial discrimination an explicit part of conversations and policy efforts related to schools, transportation, health, and housing.

EN: In a world of limited resources, what’s the argument for trying to create racially or socioeconomically integrated schools, rather than making high-poverty, high-minority schools more effective?

SE: Educators have long testified and research has long demonstrated that schools with large shares of economically disadvantaged children become overwhelmed with challenges that interfere with education. Racially segregated high-poverty schools tend to be overrun with social problems, have a hard time finding and retaining good teachers, are associated with high dropout rates, and are less effective than diverse schools at intervening in problems outside of school that undermine learning. In a longitudinal study of dropout rates, researcher Argun Saatcioglu concluded, “desegregated schools likely played a more effective role in counterbalancing student-level nonschool problems than did segregated ones.” Generally, racially and economically diverse schools have been far more successful than segregated ones in improving achievement, graduating students of color, and sending kids to college. There are some successful high-poverty schools, certainly, but hardly enough to make “separate but equal” our education policy.

Not since the Johnson administration has the United States had a firm commitment, through rhetoric and action, to school integration. In 2007, 64 percent of African American and 63 percent of Latino students attended high-poverty schools. Only 21 percent of white children attended such schools. Government spends most of its education money trying to make “separate but equal” work. Separate but equal has never worked. Growing inequalities in the society are replicated in school hallways and classrooms.

We need to continue to spend money improving curriculum and conditions and providing teacher training and enrichment offerings in challenged high-poverty schools. A balanced, forward-looking education policy would also act on decades of research findings and the experience of educators on the ground, who know that children of all races and backgrounds tend to reap huge benefits from attending racially and economically diverse schools.

SR: This question posits a choice between two policies, when in fact a more nuanced approach that varies from place to place is likely to be more effective.

It is possible that assigning students to schools with an eye to equalizing the socioeconomic, rather than the racial, mix across schools may confer benefits on children that outweigh any additional transportation costs. Because educational needs are higher on average for children in low-income families, the concentration of poverty in particular schools tends to increase their financial and programmatic burden. There is also evidence that schools with a higher poverty rate experience more disruptive behavior among students. High-poverty schools may be at a disadvantage in hiring and retaining effective teachers as well.

Yet there may be education reforms such as expanded school choice that both increase segregation by income or race and improve the quality of education for minority and low-income children, particularly given the increasingly stringent limitations on government use of race or ethnicity in student assignment. The recent Supreme Court decision, Parents Involved in Community Schools v. Seattle School District No. 1, ruled unconstitutional the Seattle and Louisville school districts’ limited use of race in deciding which students got into overenrolled schools (Seattle) or which students could transfer schools (Louisville), limiting the scope of government intervention to preserve racial balance following the expansion of school choice. In the absence of race-based constraints, some reform efforts that aim to improve school quality, such as charter schools, open enrollment, magnet schools, and vouchers, may intensify segregation by income, race, or achievement (see “A Closer Look at Charter Schools and Segregation,” check the facts, Summer 2010). However, if the concentration of minority or low-income students in a school results from the purposeful choices of parents rather than from neighborhood segregation, the adverse effects may be fewer.

EN: What’s the evidence that desegregation leads to academic benefits for poor or minority students? Are these benefits large enough to justify the expense?

SE: Evidence from a variety of fields—education, public health, and economics—supports attaining and maintaining diversity and avoiding racial and economic isolation in schools. In the last decade, research on these questions grew more robust. As data and statistical methods improved, researchers were able to disentangle the intertwined influences of school, home, and neighborhood.

The weight of social science evidence demonstrates that racially diverse schools are associated with achievement in math and reading, better critical thinking, and increased intellectual engagement for students from all racial groups. A 2006 study by Douglas Harris used data from 22,000 schools to find that the Latino and African American gains in math were far greater in diverse schools than in segregated ones. A 2010 study by Mark Berends and Roberto Penaloza of longitudinal data over 30 years demonstrates a relationship between increasing segregation of black and Latino students and growth in math achievement gaps between these groups and white students. As for reading, a 2006 study by Shelly Brown-Jeffy found that diverse high schools (25 to 54 percent students of color) have smaller racial gaps in reading than schools with either extremely high or extremely low proportions of students of color. A robust 2006 study, by Kathryn Borman and colleagues, showed that, independent of other factors, racial segregation of black students in Florida was negatively associated with reading test scores, as early as first grade.

Some desegregation plans do incur increased transportation costs. In a time of budget constraints, it is vital that we think creatively about how to create and sustain racial diversity. For example, many states allow for “open enrollment” through which students may attend schools outside of the community where they live. Such plans could become tools for diversity, through recruitment in neighborhoods of color. Charter school developers could do more to create racially and economically diverse schools by enrolling students from more than one municipality. Educators could also collaborate with public transportation officials to coordinate routes and schedules, allowing parents and students to commute together to school and work in new job centers.

Maintaining dozens of small school districts in a metropolitan area, each with its own highly paid administrators and transportation budgets, is also extremely costly. Consolidation and regionalizing several demographically distinct communities could save money in the long run and create diversity.

SR: One of the unfortunate legacies of the desegregation efforts that followed the Brown v. Board of Education decision is a lack of understanding of the impacts of various types of desegregation programs in different settings. There was no evaluation component built into the desegregation effort. Although there were some small-scale random-assignment experiments of the effects of desegregation on test scores, most of what we know today concerns the relationship between a school outcome such as achievement on the one hand, and racial composition on the other. Research, including 2008 and 2009 studies by Eric Hanushek, John Kain, and me, and a 2000 study by Caroline Hoxby that account for both observed and unobserved factors that could affect outcomes and contaminate the results, suggests that African Americans, particularly higher achievers, do benefit from attending schools with a higher proportion of white students. It is likely, though, that the benefit depends on how school integration was achieved. The relationship between achievement and the demographic composition of the classroom is not well understood. What drives higher achievement? Is it peer influences? Better teachers? Teacher behavior?

Clearly, both the student population and the quality of instruction affect student outcomes, and policies should take both factors into consideration.

EN: What are the nonacademic benefits of desegregation, particularly for poor and minority students?

SE: In his seminal 1972 study titled Inequality, the Harvard-based sociologist and statistician Christopher Jencks wrote, “The case for or against desegregation should not be argued in terms of academic achievement. If we want a segregated society, we should have segregated schools. If we want a desegregated society, we should have desegregated schools.” This basic, blunt statement would hold true through the decades, while researchers repeatedly examined statistics and conducted research reviews and in-depth interviews to test something sociologists call “perpetuation theory.” Perpetuation theory posits that people who attend desegregated schools will continue to opt for racially diverse settings later in life and will use skills learned in school to more successfully navigate such settings.

Research has consistently found support for this powerful idea. In 2007, the National Academy of Education concluded that “early experience in desegregated schools tends to reduce expectations of hostility, improve skills and comfort with interracial settings, and create a tolerance for—if not a preference for—subsequent desegregated educational settings.” Reviewing research spanning 25 years, the Academy found a consistent association between early desegregated schooling experience and later working in desegregated work places, living in desegregated neighborhoods, and people’s perception that they acquired skills that made them more effective and able to persist in racially diverse settings.

For students of color, in particular, this means that attendance at a desegregated school tends to make them more likely to enter and persist in white-dominated or racially diverse settings when they perceive opportunity there. This was a basic finding from my interviews with adult graduates of Boston’s voluntary city-suburban school desegregation program, METCO (recounted in The Other Boston Busing Story, Yale University Press, 2001). In 2008, Columbia University professor Amy Stuart Wells and her colleagues published interviews with adults from a variety of backgrounds who had attended desegregated schools across the country. They concluded, “desegregation made the vast majority of the students who attended these schools less racially prejudiced and more comfortable around people of different backgrounds.”

SR: Potential nonacademic benefits include expanded access to job networks, more interracial friendships, and enhanced access to educational networks, including private schools and colleges. Although some research finds that such benefits exist, the available data have not permitted researchers to confirm the causal effects of desegregation on nonacademic benefits for the same reasons that it is difficult to produce convincing findings on academic benefits: the nonrandom sorting of students among school environments and the real possibility that forced busing may produce effects very different from those of living in a racially or socioeconomically mixed community.

EN: Is school desegregation dead? Either way, what do you foresee in school racial makeup when you look out a generation?

SR: Although any new efforts based on federal law are likely to be limited, it may be premature to pronounce school desegregation dead. Districts will no doubt continue to monitor school enrollment patterns and enact rules and programs designed to foster racial integration, even if indirectly.

At the root of school segregation is extensive residential segregation. Transporting students long distances to reduce segregation in schools is costly, time-consuming for students, and likely to reduce parental participation in the schools. Targeting additional resources to early childhood education, extended day, summer programs, prudent class-size reduction, or enhanced accountability structures is likely to have a higher return in these communities than racial desegregation efforts.

Over time, a number of forces will combine to determine the school enrollment landscape. The dismissal of court-ordered plans will likely increase segregation, though modestly; the expansion of school choice will likely have a similar effect. Residential segregation may decline somewhat in most regions of the country, but residential segregation by race and income will almost certainly remain a defining feature of the U.S. and a sizable impediment to greater school integration. Given this housing pattern and the declining share of elementary and secondary school students who are white, African American students are likely to have fewer white and more Hispanic and Asian classmates in the years to come.

SE: School desegregation is vibrant, alive, and also vulnerable. Through my work, I’m lucky to meet and collaborate with educators and families who are creating, sustaining, and improving racially diverse schools. For example, in Hartford, Connecticut, a legal decision created a system of regional magnet schools that attract students of color from the impoverished city and students from the working-class towns and affluent suburbs that surround it. In Boston, Palo Alto, and St. Louis, students from the city voluntarily board buses to attend suburban schools. In Louisville, Kentucky, educators employed Opportunity Mapping and decided to retain a school choice system that achieves racial diversity. In Omaha, Nebraska, cities and suburbs created a joint tax-sharing program to fund schools that bring together students from across the region. In Montclair, New Jersey, a racially diverse group of parents works to strengthen magnet schools that bring together students from varying racial and economic groups. In Montgomery County, Maryland, community members develop action plans to improve opportunity for students of color and to build community in their diverse schools. The stories are endless, but not widely known.

Unless our policies begin to support diversity and true, stable integration, I foresee continuing segmentation of our residential and educational space along racial lines. Oddly, this will happen even as diversity in the larger society increases.

The constitutionality of state school-finance systems has been under attack for nearly 40 years. Since the California Supreme Court’s 1971 ruling in Serrano v. Priest, finance-reform advocates have filed 139 separate lawsuits in 45 states. The specific language varies from state to state, but virtually all state constitutions contain education clauses that require the state legislature to provide an “adequate,” “basic,” or “thorough and efficient” education for all children. Plaintiffs have relied on these provisions to seek increases in the financial resources devoted to public schools, especially those serving disadvantaged students. Courts have in turn deemed school-finance systems unconstitutional in 28 states.

While school-finance lawsuits have attracted significant attention in the legal community and generated numerous state-specific case studies, nationwide analyses of the effects of school-finance judgments (SFJs) have been relatively few. This small pool of studies has produced some common conclusions, namely, that such judgments reduce funding inequality between districts by increasing spending in the poorest districts and that they do so by transferring responsibility for education funding from local to state governments. Some questions remain unanswered, however, such as why SFJs have substantially different effects in different states.

A court’s ruling that an existing school-finance system is unconstitutional is only the first step toward funding reform. Some court orders provide instruction for how the legislature should fix the system, but most simply instruct state politicians to redesign the finance system themselves. In either case, the new finance system must garner the approval of the state legislature and governor. In other words, after the court ruling, the reform must pass through the state’s usual lawmaking process. States with similar court rulings may end up with very different reforms, depending on how the legislature and governor respond.

With this political process in mind, we decided to investigate how politics might influence the way an SFJ alters a state’s school-finance system. Our starting point was estimating the change in per-pupil funding that could be confidently attributed to an SFJ. We did this by comparing changes in funding in school districts where the state’s school-finance system has been ruled unconstitutional in a court challenge to funding changes in comparable districts in states where no SFJ has been issued. We studied district-level changes in school funding following 23 school-finance judgments issued between 1988 and 2005. The lawsuits were all related to general education funding, and each was the first SFJ in a state during our period of study. In total, we studied funding outcomes in more than 13,000 districts over 18 years.

What we were most interested to know is whether the change in funding differs if a state has unified Democratic control of the state legislature and the governorship at the time of the court decision, unified Republican control, or when control is divided between the two parties as, for example, when the governor is a Republican and the Democrats control one or both of the houses of the legislature. To find out, we compared the outcomes of SFJs issued in each of these circumstances.

We found that court-ordered finance reform alters district funding levels under each type of partisan regime. On balance, Democratic control results in across-the-board increases in state funding to local school districts, while Republican and divided-government regimes tend to produce funding increases targeted to poorer districts. SFJs in all three types of political environments lead to a shift in funding responsibility from local to state governments, although to differing degrees.

Which Party is Responsible?

As we began our study, we had to decide how to assign responsibility for school funding changes produced by an SFJ in the years following the judgment, especially when the party that controls the state government changed. We decided to focus on partisan control at the time of the court decision because the government at the time of the ruling is obligated to craft the policy response. Our approach, then, attributes the effect of the SFJ in subsequent years to the party in power when the judgment is made, even if there is a subsequent change in partisan control. We checked the validity of this decision by rerunning our analysis, attributing the funding associated with an SFJ in any given year to the party in control of the state government in that same year. With this method, our estimates of the relationship between partisan control and the effect of an SFJ, in dollars, were much less precise than when we used our preferred approach, although the substantive conclusions of our analysis remained the same. The better estimates lead us to conclude that party control at the time of the court decision has, on average, the most important role in determining the political response to an SFJ.

Table 1 lists the cases used in our analysis and the configuration of partisan control of the state government at the time of the court decision. Only three SFJs were issued during periods of unified Republican government: in New Hampshire, Ohio, and Wyoming. This suggests the need for caution in interpreting our results, especially about the patterns in school finance we see under Republican governments. There were seven judgments handed down during unified Democratic government (in Alabama, Kentucky, Maryland, Missouri, Tennessee, Vermont, and West Virginia) and 11 delivered when government was divided (in Connecticut, Idaho, Kansas, Massachusetts, Minnesota, Montana, North Carolina, New Jersey, New York, South Caroline, and Texas).

State, Local, and Federal Funding

While SFJs require a policy response from the state government, and therefore are expected to have a direct impact on state funding, they may also have an indirect effect on funding from local sources. Indeed, one concern over the efficacy of court-induced reforms is that local districts may reduce their own contribution to the schools in response to increases in state aid, thereby undermining efforts to increase total school spending. To provide a more comprehensive picture of the effect of SFJs, we look at the impact on both state and local funding.

Of course, because spending on schools also includes a small amount of federal aid, total funding is not simply the sum of state and local funding. Federal funds, which make up about 10 percent of total education funding, have until recently been limited to specific programs, such as the National School Lunch Program and special education. Thus, we would not expect a state court decision  to influence federal funding, an assumption that is borne out in the data.

Gauging the Effects

Our basic strategy was to compare changes in funding levels in districts where the state’s school-finance system has been ruled unconstitutional to funding changes in comparable districts in states where an SFJ has not been issued. We make these comparisons with groups of districts that had Democratic, Republican, or split-party control of the state government at the time the SFJ was issued. We allow for a one-year delay for the judgment to take effect because we assume that any changes in policy made as a result of the decision will be reflected in the next year’s budget, at the earliest.

Because most school-finance lawsuits are aimed at increasing funding for poor districts specifically, we designed our analysis to measure how the effects of SFJs, and of the party in control of the state government at the time of the decision, might be different for school districts with high rates of students in poverty and for districts where the students are better-off financially. To look for these differences, we divided each state’s districts into four quartiles based on the proportion of students living in poverty and allowed for the possibility that the effect of an SFJ, and of one under Democratic, Republican, or divided government, could be different in each quartile.

To isolate the effects of an SFJ on districts within each poverty quartile, we focus on changes in spending over time within specific school districts after taking into account changes from year to year in average education spending across all of the nation’s school districts. Thus we effectively control for unmeasured attributes of each school district that are constant over time and for national trends that affect all districts, such as economic conditions or changes in federal education policy that could have an impact on funding even in the absence of an SFJ. We adjust for inflation by converting all per-pupil funding figures to constant 2007 dollars.

Of course, there are other factors that likely influence changes over time in the level of per-pupil funding in a school district, including characteristics that change over time and influence either their receipt of state funding or the propensity of school districts to raise their own local revenue. We account for the variation in funding that should be directly attributed to the percentage of the student population living in poverty, independent of any change produced by an SFJ. We also include the total number of students in the district, to allow for the possibility that large districts operate differently from small districts. And we estimate the impact on per-pupil expenditure of the proportion of students in a district with Individualized Education Plans (IEPs), as students with IEPs generally have special needs that result in higher spending. Finally, we include the proportion of the student population that is African American and the proportion Hispanic. Although we have no reason to believe that these two variables directly cause changes in education funding, they may be correlated with other relevant factors, such as property values or population growth, for which we lack direct information.

In addition to district-specific characteristics, we take into account state-level characteristics that could influence state funding of education. In particular, we control for the fraction of the state’s population over age 65 to account for the possibility that the elderly oppose increases in school spending. We also control for the fraction of the population that is of school age, which captures aggregate demand for educational services. The final control variable in our analysis is per-capita income in the state, as the demand for government services may increase with income.

Annual district-level financial and demographic information comes from the Common Core of Data (CCD), available from the National Center for Education Statistics (NCES). For years in which CCD data are not available (1988–1992 and 2005), we use data from U.S. Census Bureau Elementary-Secondary Education Finance Survey (F-33). Our analysis considers only local school districts and parts of local supervisory unions with at least 100 students, as identified by the CCD. We exclude Hawaii and Washington, D.C., because each has only one school district.

Additional district demographic information, including the proportion of the population aged 5 to 17 and the proportion of school-aged children living in poverty, comes from the U.S. Census Small Area Income and Poverty Estimates for most years. For 1989 and 2005, the district demographic information comes from the School District Demographics System. Because district poverty information is not available for every year, we use the poverty estimates from the closest available survey year. For example, the district poverty estimates for 1996, 1997, and 1998 all use the data from 1997.

Partisan Patterns

A new and very clear picture about the impact of politics on SFJs emerged from our findings. The school-finance reforms implemented by Democratic state governments have substantially different effects on district funding than reforms produced by Republican or divided governments. When a Democratic state government implements an SFJ-induced reform, all districts, poor and non-poor alike, see increases in total funding. Under Republican and divided governments, districts with different levels of poverty fare quite differently.

Figure 1 represents our findings graphically. Each bar in the graph represents the effect of an SFJ, that is, the within-district change in spending after the decision, for each category of partisan control and district poverty. We present separate estimates for the change in total funding, in funding from state sources, and in funding from local revenues.

In Democrat-led reforms, our estimates show, districts in every poverty quartile see a shift from local to state funding after an SFJ. Local funding decreases, while state funding increases. This pattern of centralization of school funding is consistent with evidence from earlier studies, which also shows that localities partially offset state efforts to increase overall education spending after SFJs.

The upshot is a net increase in total funding ranging from roughly $750 to $1,000 per pupil—a sizable impact, given that total per-pupil funding in our sample is a little over $9,750 on average. While a few of the differences between quartiles are statistically significant, they are substantively small relative to the overall level of the funding increases. Indeed, if anything, the results indicate that the most affluent districts fare better than the poorest districts, in terms of total funding, when Democrats are in power, although this difference is not statistically significant. We should note here that high poverty does not necessarily imply low spending (in many states, high-poverty districts have the highest spending levels), so our findings here do not bear directly on spending inequality.

School-finance rulings handed down to divided governments produce decidedly different results. State funding increases across the board, but the changes in state funding differ markedly across the levels of district poverty: The poorer the district, the larger the increase in state funding. But, as in states with Democrat-led reforms, SFJs are not unmitigated wins for school-district budgets. All four quartiles see sizable reductions in funding from local sources. These reductions are large enough that the poorest quartile is the only one to see positive net changes in total funding. Overall, divided government reforms appear to represent a more or less straightforward redistribution of funding toward the poorest districts. The net effects on state education funding appear to be budget-neutral, as we estimate that there is little change in total education funding after an SFJ under a divided government. That said, the net increase of roughly $175 per student in total funding for poor districts is fairly modest when compared to total per-pupil funding.

Republican-controlled reforms present yet a third pattern of funding changes. Under Republican governments, funding shifts from local to state only for the poorest districts. Districts in the most affluent quartile face cuts in state funding, but they are able to more than compensate for these reductions by increasing local funding. In other words, Republican-led reforms involve centralization of funding for the poorest districts and decentralization of funding for the richest districts. The middle two quartiles are essentially unaffected. On net, both the poorest and the richest districts see increases in total funding, the former courtesy of state aid and the latter financed from their own tax base. Indeed, the richest half of districts in Republican states are the only group under any partisan regime to experience an increase in local funding following an SFJ.

Alternative Explanations

A lingering concern with our results may be that party control of the state government is related to the decision to file a school-reform lawsuit. Finance reform advocates may time the filing of their lawsuits to take advantage of what they view as particularly favorable political conditions. Another possibility is that advocates might resort to litigation only when the legislative and political process fails to provide reform. Either of these possibilities means that SFJs might have effects that appear to be associated with party control but are not actually caused by the response of the party in power.

We answer by first noting that because nearly all states—45 of 50—were subject to at least one education-finance lawsuit, the central issue is not whether a state would face a suit but when. Beyond that point, we believe that this is not a major concern for three reasons: 1) the amount of time between lawsuit filing and the court decision is often long and always unpredictable; 2) the party in control often changes between the lawsuit filing and decision; and 3) lawsuits do not appear to be precipitated by changes in political regime. Among the 23 cases included in our study, the length of time from the initial filing through the final appellate court decision ranged from less than a year to nine years. On average, the process took four years. Due to the length of time the suits take and the variability of the speed of the adjudication process, advocates could not effectively time their lawsuits to specific political circumstances. In almost half of the cases (11 out of 23), the party in control changed between the time of filing and the time of decision. Further, school-finance lawsuits do not appear to be triggered by changes in party control. On average, the party in control in the state was stable for six years prior to the filing of a case. In only three cases did the party in control change in the year of the lawsuit filing, and for each of those three cases, the party in control changed again before the lawsuit was decided.

Conclusion

Which partisan arrangement leads to the best results for poor districts after a school-finance judgment? That question requires stepping into the debate about the relationship between student outcomes and school funding and goes beyond the evidence we present here. What our study does show is one of the many possible ways that politics can influence the implementation of court-ordered school-finance reform. Clearly, reforms implemented by Democrats produce the largest net increases in funding for all students. However, by delivering roughly equivalent funding increases to districts at all income levels, Democrat-led reforms do not target new resources to districts serving poor students. Reforms implemented by divided or Republican governments deliver concentrated benefits to districts serving poor students. In these instances, however, the actual flow of new dollars into poor districts is more meager than when Democrats are in control.

Christopher Berry is assistant professor at the Harris School of Public Policy at the University of Chicago. Charles Wysong is a student at Stanford Law School.

In the mid 1980s, federal district court judge Russell Clark ordered a complete overhaul of the school district.   No expense was spared.  All told the court spent more than $2 billion in its quest to improve the KCMSD.  Every high school and middle school and half the districts elementary schools became magnet schools with special themes such as classical Greek, Slavic studies, and agribusiness.  Special themes required special facilities such as a model United Nations facility with simultaneous translation capability, petting zoos, and robotics labs.  One high school was so extravagant it was dubbed the “Taj Mahal.”

When Judge Clark’s remedial program began in the mid 1980s the school district enrolled 35,000 students compared to more than 70,000 in the late 1960s. (Today it enrolls just over 17,000).  During the 1970s the school district had experienced a massive exodus of middle-class white and black students. A series of destructive and divisive teacher strikes had undermined parental confidence in the school system. Everyone who could afford to escape fled to the suburbs. However, because of ineffectual leadership, the district maintained a large stable of partially filled buildings.  No one was willing to make the politically unpopular but necessary decisions to close underused schools.  The plaintiff’s attorney, Arthur Benson, and his expert witnesses assured Judge Clark that if he ordered the requested improvements the school district would draw tens of thousands of white students from the suburbs back into the district. Much like The Field of Dreams, the premise was “If you build it they will come.”

But the students never came.  Sadly at the same time Judge Clark was pouring money into the district, the quality of education declined for Kansas City’s minority students. Test scores fell and levels of racial isolation increased.  African-American parents grew so disillusioned that many formed an organization devoted to taking over the school district and ending the case.  Despite the academic failure of students in the system the school district was kept afloat, by judicially mandated largesse allowing it to avoid the difficult decision to close largely empty schools.  In fact, the schools closed last week received tens of millions of dollars under the desegregation plan.  Absent Missouri v. Jenkins the school district would have been forced to gradually close schools and would have avoided a wrenching and traumatic mass closing.  The central lesson of the case is that courts are a poor venue for making educational policy.  But it also testifies to the folly of trying to spend our way to educational utopia.

Ironically, the board member casting the decisive vote to close the 26 schools was Arthur Benson, the same attorney who led the lawsuit from 1977 to its conclusion in 2003. While many, including myself, have criticized his misguided educational proposals, he has tried to put his hard won knowledge to good use by joining the school board two years ago.  Instead of focusing on exotic but educationally distracting programs, he has spent his tenure on the board trying to focus on providing a good and fiscally sustainable education for the district’s students. One wishes Benson well in his effort to help the children of Kansas City in the twilight of his career. But it’s difficult not to think of what could have been had he used his formidable gifts and intellect to help the school district in more productive ways than litigation over the past three decades.  In the many years I studied the case, I never found a single person, even among his most ardent opponents, who questioned Benson’s integrity or sincerity.  He always had the best of intentions.  But good intentions do not guarantee good public policy. Certain roads, as Missouri v. Jenkins reminds us, are paved with them.

Palmer v. Waxahachie started innocently but quickly escalated into a full-blown First Amendment storm. In September 2007, Paul Palmer, a 10th-grade student, wore a T-shirt to school that said simply “San Diego.” The district’s dress code prohibited T-shirts with printed messages. After school officials informed Palmer of his offense, his parents gave him the John Edwards shirt to substitute for “San Diego.” This too fell afoul of district policy.

In response, Palmer sued in federal court, asking for preliminary and permanent injunctions along with damages and attorney fees. He claimed that Supreme Court doctrine allowed student speech to be restricted only if it would cause a substantial disruption, was indecent, was school-sponsored (in a school newspaper, for example), or promoted illegal drug use.

At an initial hearing, the district informed the judge that it had changed its dress code, which prompted the court to dismiss Palmer’s claim without prejudice. The new code was more comprehensive in its restrictions, forbidding polo shirts with messages, shirts with logos of professional sports teams, and clothing with university logos and messages. The revised code did allow shirts with logos smaller than two inches by two inches. Students could also wear clothing promoting school spirit or school-sanctioned clubs and teams. Also permitted were bumper stickers (even attached to clothing), political pins and buttons, and wristbands.

Upon receiving the new code, Palmer submitted three shirts to school officials for approval: the original John Edwards T-shirt, a John Edwards polo shirt, and a T-shirt with “Freedom of Speech” on the front and the text of the First Amendment on the back. The school replied that the Edwards paraphernalia were forbidden and so was the First Amendment representation.

Palmer sued again, but the district court denied his request for an injunction. On appeal, the school district contended, and a Fifth Circuit panel agreed, that its policy was fully compliant with settled doctrine on student speech. Even though Palmer’s sartorial choices were not disruptive, lewd, school-sponsored, or drug-related, the district’s policies were content-neutral and thus permissible. According to the court, the school district’s policy exhibited no hostility to the message conveyed by Palmer, but instead simply regulated his manner of expressing it. The court appeared particularly concerned that siding with Palmer “would spawn endless line-drawing litigation.”

But why did LLI find the travails of the cantankerous Mr. Palmer so compelling? The answer is that Christian public-interest firms like LLI now see the Supreme Court’s 1969 decision in Tinker v. Des Moines as the last bulwark protecting student religious speech.

Tinker had established that students “do not shed their constitutional rights at the schoolhouse door.” At the time, it was criticized by conservatives as one of the Warren Court’s intemperate assaults on America’s constitutional and moral fabric. Jay Sekulow, who championed the Christian Right’s free-speech legal strategy at the American Center for Law & Justice (ACLJ), now argues that Tinker is the decision “you have to hope to hold onto.” Hence, religious conservatives are now some of its most adamant defenders. For groups like LLI and ACLJ, the fear is that if schools can suppress John Edwards T-shirts and Bong Hits banners, then they can just as easily suppress John 3:16.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs.
Martha Derthick is professor emerita of government at the University of Virginia.

Hope and Despair in the ?American City: Why there are ?no bad schools in Raleigh
By Gerald Grant
Harvard University Press, 2009, $25.95; 226 pages.

Syracuse, New York, does not appear in the title of this book, as Raleigh, North Carolina, does, but its experience is the reason for it. Author Gerald Grant was born in Syracuse and educated through high school there. He lived for years in Washington, where he became education reporter for the Washington Post, and in the Boston area, where he gained a doctoral degree at the Harvard Graduate School of Education and worked with Daniel P. Moynihan, David Riesman, and the writer of this review. Grant returned to Syracuse in the 1970s to become a professor at Syracuse University. He has lived through and experienced, as observer, analyst, and deeply involved citizen, the decline of Syracuse similar to the slide experienced by northeastern and midwestern industrial cities in the last half century. One part of the story of that decline and the brave attempts at reversal and recovery has been told in his excellent 1988 book, The World We Created at Hamilton High. The canvas is greatly extended in this volume.

The story of Syracuse is familiar: misguided attempts at urban renewal in the 1960s, destruction of old neighborhoods by interstate highways penetrating the city center, expansion of suburbs facilitated by federally funded highways and tax benefits for new housing; movement of many industrial facilities to the South; and redlining of old city neighborhoods so they could not get necessary mortgages and insurance for home purchase, rehabilitation, and maintenance. The resulting separation between white suburbs with new schools and middle-class students and an increasingly minority central city are all vividly recounted by Grant, who with his wife was deeply involved in efforts to counter the decline, and who in one neighborhood had some success in doing so. But in the end, there remains an ailing minority-dominated school system in Syracuse in which fewer than 3 of 10 8th graders pass state tests in reading and math.

And then there is Raleigh, where more than 8 of 10 pass, and the visiting researcher is told—and it seems true—“there are no bad schools in Raleigh.” (State requirements, of course, do vary widely, and North Carolina’s are among the least rigorous, but even so the differences between the two cities are huge.) One of the first schools Grant visited in Raleigh, in the historic black district, serves a student population that is majority black with one-third of children from low-income families. The school nevertheless “attracted whites from across the county to its [magnet] programs in art and science. In 3rd grade 94 percent of white children and 79 percent of blacks passed the state math test. By 5th grade 100 percent of both blacks and whites passed the test.” There are very few such public schools in northeastern and midwestern cities of similar size. And if there are, they are generally in rapid transition to becoming all-black. There may be the occasional KIPP or charter school that is predominantly minority and scores high. But Grant is describing a traditional public school, and all Wake County public schools seem to be similar in achievement and attractiveness.

“County,” there is the rub, and the explanation, according to Grant. Raleigh did not resist the mandates of Brown v. Board of Education as fiercely as other southern cities. Grant records a degree of good race relations even under the reign of Jim Crow in Raleigh that seems exceptional, although the schools were separated until the late 1960s. “Whites began to bail out of the system in the 1970s, as they did in Syracuse…. The line dividing the inner-city schools from the growing suburbs ‘had been frozen by the county,’” the black former superintendent of schools tells Grant. “We were locked into the inner city. The black count in the Raleigh schools was approaching 40 percent.”

But then, in 1976, without any court order or apparently any threat of one, the Raleigh city and county schools merged to create the Wake County School System. And that created the basic underlying condition that Grant believes made possible the remarkable success of the Raleigh–Wake County schools. Of course, more was necessary: vigorous and energetic superintendents, strong efforts to create magnet schools and to attract high-quality teachers and principals, publicity to draw students to them. A touch of the iron fist in the velvet glove, a program of assignment of students to schools by race sought to prevent black dominance, but affected it seems only a small number of pupils. More recently, this has been replaced by balancing schools according to socioeconomic status, limiting the number of students in each school eligible for subsidized lunches to under 40 percent (see “Fraud in the Lunchroom?” check the facts, Winter 2010) to evade the possible judicial striking down of a race-based program.

Syracuse did not merge with suburban districts, and even resisted any voluntary program, such as METCO in the Boston area, that permits inner-city black children to transfer to willing suburban school districts. It is astonishing that the Wake County and Raleigh schools merged, and I wonder whether there is even one other example of such a merger independent of legal pressure.

What were the circumstances that made possible this remarkable event in Raleigh–Wake County? There are no details in the book. I am informed that merger was rejected in a local vote, and then imposed by the state legislature. But even this is remarkable. (One should note that countywide school districts are more common in the South, which may have made easier the state vote and the acceptance of a countywide school district for Wake County.)

And then what made possible the equally remarkable success of the magnet schools, which enabled racial balance with little in the way of direct assignment? This has not been the common experience of other districts with magnet-school programs. In particular, one thinks of the Kansas City experience, as described in Joshua M. Dunn’s Complex Justice (see “Finding the Right Remedy,” book review, Spring 2009). Huge sums of money were appropriated by Missouri under court order to build and rebuild inner-city schools and establish magnet programs to draw suburban white children, with nothing like the success we witness in Wake County. Everywhere, except in the most exceptional cases, we have seen the resistance of suburban white parents to sending their children to inner-city schools with near majorities or majorities of black children.

Grant is well aware this resistance is not a product of simple racism and is more to be ascribed to parents wanting the best for their children. But then why is Raleigh–Wake County different? One hesitates to jump to the conclusion that Wake County and Raleigh are simply more enlightened, liberal, and tolerant than most American communities. And if they are, what can explain it?

One explanation might be that Raleigh was growing by leaps and bounds, economically and demographically: North Carolina was attracting some of the industry that was leaving Syracuse. While we are not given the specific figures, apparently the percentage of black students—and concentration in the inner city—was similar in Syracuse and Raleigh. Growth may have created optimism and concern over maintaining it with the good schools that integration facilitates, and that may have contributed to the success of the merger effort. Blacks and whites in Raleigh, we get a hint, were not as separated geographically as in Syracuse, reflecting a common southern pattern. Raleigh is the state capital and that certainly anchors to some degree a middle-class population. But what happened in Raleigh was so exceptional it deserves further analysis.

There are hints in the book that this exceptionality is now threatened. A local woman—who moved in 1989 to Raleigh with her young children from Lexington, Massachusetts—heads Assignment by Choice, an organization that attacks the pupil assignment policies that keep the Raleigh schools in socioeconomic (and racial) balance. “Her campaign started…after her son was rejected several times to schools she had hoped would help him with his attention-deficit and hearing problems.” Her efforts to get supporters elected to the school board at first failed, but a local election in October 2009 gave the board a majority of neighborhood-school supporters.

And there are other clouds: The number of families from Mexico and Central America is rising. The percentage of schools with more than 40 percent subsidized-lunch students has doubled in six years. Grant devotes a good part of the book to the story of how a Supreme Court with four Nixon appointees in 1974 stopped a program to bring together Detroit with its suburbs to make possible a greater degree of integration in the Detroit schools, and thus called a halt to a constitutionally imposed merger of central-city and suburban schools. But could anything have saved such mandates given the fierce popular opposition to school busing at the time?

Nor has this weakened much over the years. Despite the remarkable story of how the Raleigh–Wake County schools raised the achievement of black school students, this is still a task that in large measure will have to be accomplished in black and minority-dominated schools.

Nathan Glazer is professor emeritus of education and sociology at Harvard University.

Next in order of publicity was Forest Grove School District v. T. A., a case from Oregon in which the Court held 6 to 3 that parents could receive reimbursement for private school tuition even when their disabled child had never enrolled in a public school special education program. A brief filed by urban school districts raised the specter of wealthy parents gaming the system and driving up costs, but the effect of this decision will also likely be limited. Certainly, some parents will try to use the decision to fund private school, but significant requirements under the Individuals with Disabilities Education Act (IDEA) remain in effect. For families to be eligible for reimbursement, an administrative board or court will still have to find that a public program could not meet the child’s needs. In general, the cost and incidence of private placements appear to have been exaggerated in the media (see “The Case for Special Education Vouchers,” features, and “Debunking a Special Education Myth,” check the facts, Spring 2007).

Receiving almost no attention but potentially of utmost significance was Horne v. Flores, a case about English-language learning in which the Court divided narrowly along ideological lines, with Kennedy joining the five-member majority. The central issue is whether Arizona has satisfied the Equal Educational Opportunity Act (EEOA) of 1974, which provides that no state shall fail “to take appropriate action to overcome language barriers that impede equal participation…in its instructional programs” (see “Language Barriers,” legal beat, Winter 2009).

The case called for the Court to weigh in on several controversial issues, the most important of which is the extent to which the judiciary should be able to dictate education spending by state and local governments. In considering whether Arizona was meeting the requirements of the EEOA, Justice Samuel Alito’s majority opinion faulted the district court and the Ninth Circuit for focusing on the “narrow question” of funding, and ignoring whether managerial and instructional reforms had brought the state into compliance. The plaintiffs and lower courts had consistently used funding as the barometer of quality. Alito jumped headlong into the funding debate by citing “a growing consensus in education research that funding alone does not improve student achievement.” While the case does not bind state courts, it provides an important source of support for those opposing state school-funding lawsuits.

The Court also emphasized that cases such as Flores risk making the courts a manipulated contestant in disputes where one side uses litigation to insulate its policy and spending preferences from political debate. The majority was clearly distressed at the often collusive nature of institutional reform cases, as illustrated by Flores, in which then Governor Janet Napolitano, a Democrat, supported the lawsuit against the state as a way to leverage more school spending out of the Republican legislature.

Flores, then, sent perhaps the strongest signal of any of the cases that the Roberts Court was seeking to define a path of judicial modesty. Indeed, Roberts himself seemed to say as much at a judicial conference soon after the strip-search decision. Asked about it, he replied, “You can’t expect to get a whole list of regulations from the Supreme Court. That would be bad. We wouldn’t do a good job at it.”

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

Recently, however, this trend has come to a grinding halt.  Since 2005, there have been important adequacy case decisions in over a dozen states, and in none of them have the courts required further funding increases. Several courts, when deciding new adequacy cases, have either dismissed them based on separation of powers grounds or have ruled against the plaintiffs on the merits following a trial.  Since 2005, courts in Oklahoma, Kentucky, and Oregon have dismissed such cases on motion, holding that control over school funding is the sole province of the elected branches of government.   In Texas, Missouri, South Dakota and Arizona, the courts denied motions to dismiss, but after further hearings, rejected plaintiffs’ claims regarding inadequate funding of the schools.  The one notable exception to this pattern is an October 2009 decision by the Colorado Supreme Court overturning a lower court decision which had dismissed an adequacy case on separation of powers grounds.  The higher court reversed and sent the case back for a trial on the facts.

In addition, several other courts have ended their involvement in cases initially decided in favor of the plaintiffs.  Some of these courts had retained jurisdiction for years or even decades over the “remedial” phase of the case.   The most famous of these was the Abbott case in New Jersey in which the courts have issued over a dozen funding orders since the commencement of the case almost 40 years ago.  In 2009, the New Jersey Supreme Court held that the state education funding scheme was constitutional and denied further relief to plaintiffs.   Additional long-running “adequacy” cases in Wyoming and Massachusetts have also been dismissed in recent years.

Even in those few cases that have not completely rejected plaintiffs’ claims, the relief granted has been minimal, with no significant funding mandates, unlike the pre-2005 court orders.  For example, in Alaska, the court ruled that state funding was adequate, but ordered the state to improve its monitoring of failing districts.  In South Carolina, the court rejected claims of inadequacy in the State’s K-12 system of education, faulting only its pre-K programs.

While some have tried to define these court decisions as successes, in reality, the outcomes have been extremely disappointing for advocates of increased judicial intervention.  Unlike the period from 1989 to 2005, when plaintiffs won almost every “adequacy” case that survived a motion to dismiss and went to trial, since 2005 they have not had a meaningful success in court.

The reasons for this abrupt change in the courts’ attitude are not clear, but the failure of judicial funding mandates to improve student achievement has likely been an important factor.  While the state courts have not expressly stated as much, the United States Supreme Court recently addressed the impact of funding mandates on student achievement.   In Horne v. Flores, the Court reversed a lower federal court order requiring the Arizona legislature to increase funding for programs directed at K-12 English language learners.  The Court found that the “weight of the research” indicated that structural, curricular and accountability-based reforms, “much more than court-imposed funding mandates, lead to improved educational opportunities.”  In reaching this conclusion, the Supreme Court relied upon the experience in state court “adequacy” cases, citing Schoolhouses, Courthouses, and Statehouses:  Solving the Funding-Achievement Puzzle in America’s Public Schools, a recently released book by the authors of this post.  In our book, we analyze student performance in the four states that have had the most dramatic increases in funding as a result of court orders – Kentucky, Massachusetts, New Jersey and Wyoming.   As set forth in detail in the book, Kentucky (the first of the “adequacy” rulings), New Jersey (with almost four decades of court involvement in school funding), and Wyoming (where the courts instructed the state to fund a “visionary and unsurpassed” education for its students) have each seen their school spending levels blossom under court order.  Notwithstanding these dramatic spending increases, we found that student performance has languished.  The unmistakable picture in each of these states is that during a decade or more of court funding mandates, student performance, as measured by the National Assessment of Educational Progress (commonly referred to as the “Nation’s report card”), has not measurably improved relative to other states that did not have anywhere near the same influx of new school money.

The only state where performance has significantly improved while under court order has been Massachusetts.  But here the story is more complicated, because Massachusetts combined strong non-financial remedial measures – strong standards, enhanced assessments, and strict accountability measures – with increased funding.   Importantly, although accomplished after the entry of a court order, these deeper policy changes were not specifically ordered by the court, but instead represented creative reform efforts by the political branches.

The Massachusetts result reinforces our analysis:  significant structural changes that focus incentives on improved achievement are more important than just providing additional funding.  However, most courts that have historically entered into educational policy areas other than funding have discouraged real structural changes, focusing instead on the continuation of past policies, such as class size reduction or across-the-board salary increases for teachers, which carry with them increased funding.

In conclusion, the adequacy decisions of the last five years must be taken as strong evidence that courts no longer suppose that ordering increases in school funding leads to significant gains in student performance.  This is surely reinforced by the 2009 Flores decision.

Listen to the Podcast

For more about the constitutionality of assigning students to schools in order to achieve diversity, see “Affirmative Action Docketed”

The Nobel Committee Isn’t the Only One Giving Speculative Prizes (10/22/09)
Will Michelle Rhee Triumph? (10/14/09)
Will the Federal Role in Education Double? (10/8/09)
Charter Schools Narrow Achievement Gaps in New York City (10/1/09)
What Congress Is Not Working On (9/24/09)
Charter Schools, Unions, and Linking Teachers with Student Achievement Data (9/17/09)

In a 4-3 decision, the state Supreme Court swept aside those concerns, arguing that they should not preclude the plaintiffs from being able to make their case.  The decision, however, did not address the merits of the plaintiffs’ case, which will return to the trial court.   According to the majority, the state only has to show that its funding scheme is rationally related to its constitutional mandate.  One would normally expect this to be an easy hurdle for the state to clear, but the Colorado Supreme Court has a history of unpredictable behavior, as this case itself indicates, so there is certainly no guarantee that the state will win when it’s all over.  As well, in 2004 the Court showed its solicitude for the interests of the educational establishment when it struck down Colorado’s voucher program.

Looking forward, any judicial demands on the state legislature would likely meet with resistance.  The state is already facing severe fiscal constraints, in part because of Amendment 23 of the state constitution, which mandates yearly increases in K-12 spending.  Assuming the state’s budget woes continue, the idea that K-12 isn’t getting an adequate share of state revenues will likely be met with some consternation.

As the book’s promotional materials note

From race to speech, from religion to school funding, from discipline to special education, few aspects of education policy have escaped the courtroom over the past fifty years. Predictably, much controversy has ensued. Supporters of education litigation contend that the courts are essential to secure student (and civil) rights, while critics insist that the courts distort policy and that the mere threat of litigation undermines the authority of teachers and administrators.

From Schoolhouse to Courthouse brings together experts on law, political science, and education policy to test these claims. Shep Melnick (Boston College) and James Ryan (University of Virginia School of Law) draw lessons from judicial efforts to promote school desegregation and civil rights. Martha Derthick (University of Virginia), John Dinan (Wake Forest University), and Michael Heise (Cornell Law School) discuss litigation over high-stakes testing and school finance in the era of No Child Left Behind. Richard Arum (New York University), Samuel R. Bagenstos (Washington University Law School), and Frederick M. Hess (American Enterprise Institute) analyze the consequences of court rulings for school discipline, special education, and district management. Finally, editors Joshua Dunn and Martin R. West probe the tangled relationship between religious freedom, student speech, and school choice.

In a book report published on Ed Week’s School Law blog last week, Mark Walsh heartily recommends the book “for anyone with an interest in school law: professors, practicing attorneys, education students, administrators, policymakers, and the most interested teachers and parents (as well as students). It might be nice if a few federal judges or Supreme Court justices, or at least their law clerks, got their hands on the volume, too.”

The book can be ordered here.

A condensed version of one chapter from the book appeared in Education Next this summer as “Law and Disorder in the Classroom,“ by Richard Arum and Doreet Preiss.

And for those who don’t like to read, you can listen and watch as Marty West discusses the book in a video here.

Nowadays, academic book reviews either stodgily summarize the book, then close with a few half-hearted compliments designed to ingratiate the reviewer with the author or, if not that, then take the opportunity as an occasion to denounce the author as a reactionary while writing a two-page, undocumented treatise on the same subject.

These thoughts came to mind upon reading the review of a book we edited entitled School Money Trials (Brookings, 2007) that recently appeared in the Journal of Law and Education. One looks in vain for an exploration of the arguments in any of the essays in the volume. That would require thought. It is much easier to say that the “writers are familiar to anyone acquainted with the conservative journal Education Next” and that “nearly all have worked with the Hoover Institute in other ways.”  (Fact check: To the best of our knowledge, only one contributor other than Paul Peterson has ever been on the Hoover payroll.)

Instead the reviewer, Julie Underwood, Dean of the University of Wisconsin-Madison’s education school, criticizes the following three propositions. The propositions she constructed are nowhere to be found in our book but she criticizes them nonetheless:

1. “Adequacy litigation was devised as a strategy to reform public education.”  Wrong, says Professor Underwood.  “The objective is to apply state education clauses as a mandate to better ensure that high-need programs possess the means to provide all students with adequate opportunity to achieve to at least the minimum standards.”

Comment:  Is that not reform?  Michael Rebell, the leading litigator in the adequacy movement, certainly thinks so.

2. “Courts are unable to delineate legal standards for adequacy.”  Wrong, says Professor Underwood.  “Educational experts and analysts can offer sufficient evidence to enable courts to make these decisions.”

Comment: Asserting that something can be done does not make it so. Several essays in the volume – including one by Mathew Springer and James Guthrie which the Supreme Court cited it its 2009 Flores decision – show just how difficult the task of defining an adequate level of education spending truly is. More generally, Flores has jeopardized the future of the adequacy law suit, a trend already in place at the state level (as a number of essayists in our volume point out).

3. “School spending is entirely within the province of the elected officials.” Wrong, says Professor Underwood.  “Under the core principles of judicial review set forth in Marbury v. Madison . . ., the courts hold the authority to determine whether the actions of government, including legislatures, are consistent within the constitutional framework. . . . History . . .clearly exposes the fallibility of elected officials.”

It is a long ways from Marbury to a legal justification for the claims advanced by adequacy plaintiffs.  Marbury discerned the power of judicial review in the federal constitution in 1803, but no court attempted to find a constitutional definition of educational adequacy until 1989.  If Marbury is to be understood as giving the courts the power to correct elected officials at any time and in every instance when they are wrong, then we no longer have a democracy, but a judicial theocracy.

Still, we appreciate Professor Underwood’s concluding remarks that “it is to their credit that Brookings Institution published this volume…these contributors are noted scholars and authors.” There are some good things about the new style of book reviewing after all.

To understand the importance of the Flores ruling, it is necessary to trace the involvement of courts in school funding.  In the early 1970s, the federal courts ordered a number of states to pay school desegregation costs, but these rulings were limited in number and had little overall effect on state systems for school funding.  At the same time, litigants attempted to bring “equity cases” in federal courts designed to eliminate spending variations among school districts due to heavy reliance on the local property tax.  However, this effort failed in 1973 as a result of the Supreme Court’s ruling in San Antonio v. Rodriquez that such claims did not have a basis under federal equal protection laws.

Litigants then shifted their efforts to the state courts where they were much more successful. To date,  some 45 states have had their  funding systems challenged under the education clauses of the state constitutions. With time, as more and more states moved to equalize funding, the “equity” suits morphed into “adequacy” suits, which changed the goal to increased funding.  As such, they necessarily impinge upon state legislatures’ traditional authority to determine the level of education appropriations.    These lawsuits enjoyed considerable success in the 1990s, when a number of state courts ordered legislatures to dramatically increase school appropriations.

The underlying argument is simple:  Students are not reaching desired achievement levels so it must reflect a lack of adequate funding.  Unfortunately, the courts never asked the more relevant question:  Is increased funding the solution to improving student achievement?

When we set out to answer this question in our recent book (Schoolhouses, Courthouses, and Statehouses), we found that court orders for substantially increased school funding seldom resulted in improvement in student performance.   This was the case in Kentucky, New Jersey, and Wyoming, where billions of dollars of increased funding did not significantly improve student achievement relative to that in other states.  Only in Massachusetts, where more fundamental changes in standards, accountability, and other aspects of school policy were incorporated with increased appropriations, did students tend to do significantly better following court intervention.

The Supreme Court took notice of this analysis and applied these hard-earned lessons in Flores. Beginning with a 1992 decision, the Federal court in Arizona had ruled that the State had not taken “appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs” as required under the Equal Educational Opportunities Act of 1974.  It then directed the state legislature to appropriate additional monies for ELL students, first in schools in Nogales and subsequently in all schools in Arizona.  Over the next several years, the state not only increased ELL funding but also significantly changed its ELL programs.  After achievement of ELL students improved, the State argued that the original circumstances had changed and that the State should be released from judicial supervision.  In a series of actions, the lower courts held that, even though there was improvement in student outcomes, the central issue remained whether the legislature should enact even greater increases in funding.

The Supreme Court reversed in Horne v. Flores.  It noted that the lower court decision “withdraws the authority of state and local officials to fund and implement ELL programs that best suit Nogales’ needs, and measures effective programming solely in terms of adequate incremental funding.”  After reviewing the programmatic changes made for ELL students in Nogales, the Court reached the conclusion that “the weight of research suggests these types of local reforms, much more than court imposed funding mandates, lead to improved educational opportunities.”

The Supreme Court’s decision forcefully makes a set of extraordinarily important points.  First, educational opportunity is better defined in terms of student outcomes.   Second, pedagogical and administrative reforms are often more important than court-ordered funding mandates, which it found had not been very successful.  And, third, such judicial funding decisions inappropriately intrude upon the power of states and localities to set their own public priorities and to make appropriate decisions.

While U.S. Supreme Court decisions on a federal statute do not necessarily bind state courts,   its well-argued position should be influential.  State courts, previously intervening significantly into state educational policy making, pushed up spending without commensurate results in student performance. Most recently, increasing numbers of state courts have themselves become skeptical about the appropriateness of intervening into school policy making and setting of appropriations.  And, today there are few state cases currently active, up from a large number always active over the past two decades.  The Flores decision almost certainly will reinforce and strengthen this desirable trend.

Students will test the limits of acceptable behavior in myriad ways better known to school teachers than to judges; school officials need a degree of flexible authority to respond to disciplinary challenges; and the law has always considered the relationship between teachers and students special.
— Supreme Court Justice Stephen Breyer

In Morse v. Frederick, a 2007 First Amendment student free speech case, the Supreme Court held that a school official may restrict student speech at a school-supervised event when that speech is viewed as promoting illegal drug use. Filing a separate opinion, Justice Stephen Breyer echoed concerns expressed by his conservative colleagues that school authority was being undermined by legal challenges. Since the 1960s, courts have become increasingly involved in regulating U.S. schooling in general, but especially in the area of school discipline. Justice Breyer noted in his opinion, “Under these circumstances, the more detailed the Court’s supervision becomes, the more likely its law will engender further disputes among teachers and students.”

School discipline is a critical area for research, as student interaction with school institutional authority is one of the primary mechanisms whereby young people come into contact with and internalize societal norms, values, and rules. It is thus significant that the number of cases reaching state and federal appellate courts has surged back up to levels attained during the early 1970s when civil rights cases had a central place on the national political agenda (see Figure 1). Our research indicates that both educators and students understand the former’s authority to be more limited and the latter’s rights more expansive than has actually been established by case law.

School Discipline in Court
Until the late 1960s, parents and students rarely challenged the disciplinary actions of school authorities, viewing common schools as providing instruction, instilling virtue, and fostering the ideals of our nation. Then, as conceptions of youth rights began to shift, and as institutions that provided support for the expansion of these rights emerged, students and parents, with the support of public-interest lawyers, began to question and challenge school disciplinary practices in court.

Table 1 summarizes key school-related rulings from the Supreme Court over the last 40 years. From 1969 to 1975, amid increasing legal challenges to the regulation of student expression in school, the Court’s rulings largely confirmed students’ rights to various free expression and due process protections. The most important decision affecting how schools approach student discipline was Goss v. Lopez, decided by the Supreme Court in 1975. During a patriotic assembly at Central High School in Columbus, Ohio, in 1971, expressions of student unrest over the lack of African American curricula turned into a week of demonstrations and disturbances. Dozens of students were suspended for up to 10 days without formal hearings or notification of the specific charges against them. The Supreme Court case hinged on whether the disciplinary actions improperly denied students their rights to a public education. In ruling for the students, the Court granted “rudimentary” due process rights to those suspended from school for fewer than 10 days, as well as “more formal protections” for students facing longer exclusions.

In recent years, courts at all levels have dealt with cases challenging the enforcement of “zero-tolerance” policies that establish severe and nondiscretionary punishments for violations involving weapons, violence, drugs, or alcohol. At the same time, an increasing number of cases have appeared in lower courts that involve students and families suing schools for failing to provide adequate discipline within school facilities. These cases have alleged climates that permit bullying, sexual harassment, or other forms of school violence (including school shootings). Thus, in recent years, schools have been sued for both disciplining students and not disciplining them.

Since 1975, the Supreme Court has generally been less favorable toward students than it was during the early years of the civil rights movement.. This shift in orientation occurred for diverse reasons, including growing public concern about the level of violence and disorder in public schools, the changed political climate following the end of the Vietnam era, and a pattern of increasingly conservative judicial appointments during the Nixon, Reagan, and Bush administrations. The Supreme Court’s 2007 decision in Morse v. Frederick continued the post-1975 pattern of sympathy with schools that are facing challenges to their disciplinary authority, but did not, as some of the media coverage implied, alter the general contours of student rights as previously established. Its June 2009 decision in Safford United School District v. Redding, in which eight justices agreed that a near strip-search of an 8th-grade girl suspected of concealing prescription-strength ibuprofen was unconstitutional, at first glance appears to be an exception—a sign that the courts will continue to watch over the shoulders of school officials to ensure that reasonableness and proportionality prevail. Yet a majority on the court ruled that the administrators who conducted the search could not be held personally liable because of the uncertainty of the law in this area.

Appellate Case Patterns
While Supreme Court decisions are important because every school in the nation must adhere in principle to its rulings, these few landmark cases do not encompass the universe of legal challenges regarding school discipline and related policies. To discern the larger contours of the legal climate facing schools, we analyzed all appellate-level federal and state court cases in which school efforts to discipline and control students have been challenged. As a whole, decisions in these cases are often complex and contradictory in providing practical guidance to schools regarding specific disciplinary matters. We included cases involving the use of state agents (such as the police) acting on behalf of school authorities to deal with students in the vicinity of school grounds. We excluded instances of conflicts between schools and teachers (such as teacher dismissal cases) and between schools and nonstudent outsiders (such as drug- and weapon-free-zone cases that did not involve students), as well as student rights cases focused exclusively on free speech issues (that is, those not combined with the school’s use of suspension, expulsion, corporal punishment, and transfer). We also excluded cases in which students allege that school authorities have breached their duty to maintain safety in the school and to protect students from harm.

Of course, we did not include the vast majority of litigation, which was either settled before hearing or never reached state and federal appellate courts. Still, our methods provide a way to gauge the general character and broad trends in legal challenges that contemporary educators face. Appellate-level court cases define case law, generate media coverage, influence public perceptions, and can be tracked over time as an empirical indicator of the broad parameters of court climate toward school discipline. We found that not only has the frequency of legal challenges greatly varied over time, but the content and direction of outcomes has shifted as well.
The newfound willingness to challenge school authority became evident in the surge of litigation during the late 1960s. In part because of increased institutional support from public-interest legal advocacy groups and the legal services program of the Office of Economic Opportunity, from 1968 to 1975 an average of 39.1 public school K—12 cases per year reached the appellate level. After important legal precedents were set and institutional support waned, the average number of cases declined but then took a sharp upturn from 1993 on, with a peak of 76 cases in 2000 and a total of 65 in 2007. We present here the overall number of cases rather than a relative measure accounting for public school enrollment, given that media coverage and individual understandings reflect the former indicator. Nevertheless, a measure of state and federal court cases calculated per enrolled student would demonstrate similar upward trends, more than doubling from the years 1976—1992 to the 2003—2007 period.

The substance of the cases brought before the courts has also varied over time, with protest and free expression cases decreasing markedly through 1992 (see Figure 2a). Recently, courts have witnessed a reemergence of these issues. Cases involving alcohol and drugs rose during the intermediate time periods that coincided with national attention to the “War on Drugs” and then diminished. Those involving weapons and violence have increased to nearly 40 percent of all K—12 public school discipline cases since 1993. In addition, school discipline court cases increasingly have involved student disability. From 2003 to 2007, 18 percent of cases included discussion of student disability status. Since the 1970s, legal entitlements and protections have grown for students classified as disabled because of learning, physical, or behavioral handicaps (including psychological disorders that are associated with the manifestation of student misbehavior). Special education students thus gained additional protections related to school discipline, particularly in cases in which infractions could be attributed to the individual’s disability.

Over time, we found that courts in general have become less favorable to student claims across these areas of litigation (see Figure 2b). However, since the number of court challenges has increased in recent decades, the likelihood of a school facing a legal environment in which a student has recently been successful in a court challenge over school discipline has not significantly diminished.

Socioeconomic Disparities
Many of the early school discipline cases were brought to ensure that the rights of less-advantaged students were protected. New evidence suggests, however, that litigation is increasingly used strategically and instrumentally by families from relatively privileged origins to promote the interests of their children. Research (by Irenee Beattie, Josipa Roksa, and Richard Arum) that examined appellate court cases from 2000 to 2002 found that, on average, those cases emerged from secondary schools with 29 percent nonwhite students compared to 37 percent nonwhite students in the national population of secondary schools (the latter weighted for enrollment size to be comparable to the court case data); appellate cases also emanated from schools with more educational resources per student (student/teacher ratios of 16.3 compared to 17.5 nationally).

National surveys of teachers and administrators reveal a similar middle-class bias in legal challenges. A reanalysis of a Harris survey of teachers and administrators conducted by Melissa Velez and Richard Arum for Common Good in 2003 examined the proportion of public school educators (a combined sample of teachers and administrators) who reported that either they or someone they knew personally had been sued by a student or parent. Educators in suburban schools with less than 70 percent nonwhite students had a 47 percent probability of having experienced contact with an adversarial legal challenge compared to a 40 percent chance for educators in all other schools. Although much of the development of student rights originally emerged from concern about nonwhite students in urban areas, educators in those settings had only a 41 percent probability of contact with a legal challenge.

In collaboration with colleagues working on the School Rights Project (Lauren Edelman, Calvin Morrill, and Karolyn Tyson), we conducted a national telephone survey of 600 high school teachers and administrators and site-based surveys of 5,490 students and 368 educators on perceptions and experiences of the law in schools. In our site-based work, which included in-depth interviews and ethnographic fieldwork, we examined 24 high schools with varying legal environments situated across three states (New York, North Carolina, and California), stratified by school type (traditional public, charter, and Catholic) as well as by student socioeconomic composition. We found that 15 percent of public school teachers and 55 percent of public school administrators have been threatened with a legal suit over school-related matters. For administrators with more than 15 years of experience in the position, the figure rose to 73 percent. Administrators’ actual experience with being sued for school-related matters occurs at a lower rate (14 percent), but is still the source of considerable professional anxiety, given that these cases—following Wood v. Strickland (1975)—include vulnerability to personal liability claims. We again found that legal challenges are concentrated in schools with more-privileged students. When we looked solely at administrators working in urban public schools with more than half of students eligible for free lunch, we found—albeit with a sample of only 16 cases—not a single report of administrators being sued for a school-related matter.

That legal mobilization is dependent on economic resources needed to pursue such challenges is in general not surprising. We documented evidence of this association, however, to illustrate that regardless of the institutional and political origins of student rights, today legal mobilization in schools largely reflects patterns of socioeconomic inequalities. In the School Rights Project, we found that white students were nearly twice as likely as nonwhite students to report having pursued a formal legal remedy for a perceived rights violation.

Legal Understandings and School Practices
Legal mobilization is a relatively rare occurrence, a small tip of a much larger legal-dispute pyramid. School discipline today is profoundly shaped by legal understandings that are only partially and indirectly related to formal regulation and case law. We highlight here the extent to which both students and educators have developed an expansive definition of legal rights of students, the relationship between this sense of legal entitlement and school disciplinary practices, and perceptions of the fairness and legitimacy of various school disciplinary practices.

The institutionalization of student due process protections goes well beyond appellate case law, having been enshrined in extensive state statutes and administrative regulations. The accompanying sidebar (page 65) provides a sense of the extent to which law has come to permeate school practices by highlighting codified disciplinary procedures in New York City. While discipline policies vary across schools, districts, and states—and as the nation’s largest school district the New York City public schools are likely more bureaucratized and formalized in matters of school discipline than smaller districts—the scale, scope, and level of complexity of the legal regulations affecting day-to-day school practices appear quite formidable.

Generally speaking, educators and students have developed a set of legal understandings that assumes a broad and expansive definition of student legal entitlements. Following the Goss decision, students have been granted rudimentary due process protections when facing minor discipline and more formal due process protections when facing more serious forms of discipline (such as long-term expulsion or suspension). The Goss decision delineated procedural safeguards, stating that “the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” More formal due process protections may include the right of students to “summon the accuser, permit cross-examination, and allow the student to present his own witnesses. In more difficult cases, he (the disciplinarian) may permit counsel.”

We are interested in individuals’ perceptions of such protections, since students’ and educators’ beliefs about rights likely have real consequences for school authority and disciplinary procedures. In the School Rights Project, we specifically asked students and teachers which due process protections were required when students faced various disciplinary sanctions. We found that while expectations of formal due process protections were broadly diffused for students when facing major disciplinary actions, many of them had also come to expect these legal entitlements when facing minor day-to-day discipline. For example, 62 percent of public school students in our sample believed that, if faced with long-term suspension or expulsion, they were legally entitled to at least one of the following: a formal disciplinary hearing, opportunity to be represented by legal counsel, opportunity to confront and cross-examine witnesses bringing the charges, or opportunity to call witnesses to provide alternative versions of the incident. Approximately one-third of students also believed that they were legally entitled to some form of formal due process protection when they had their grades lowered for disciplinary reasons (33 percent), were suspended from extracurricular activities (36 percent), or faced in-school suspension (35 percent).

We found that students’ sense of legal entitlement was expansive, and that teacher and administrator expectations of required student due process protections were even more so. For example, when asked about lowering student grades for disciplinary reasons, approximately half of public school teachers and administrators responded that this action was prohibited; among the educators who did think such disciplinary actions were permissible, 32 percent reported that students subject to such disciplinary sanctions were entitled to formal due process protections.

In the School Rights Project, we found that increased perceptions of student legal entitlements correlate with decreased reports of the fairness of school discipline. This conclusion mirrors James Coleman’s finding that Catholic school students in the 1980s were significantly more likely to perceive school discipline to be fair than public school students, who possessed far greater formal legal protections. Educators and students have developed a generalized sense of legal entitlements, while school practices have, in many settings, become increasingly authoritarian, with student misbehavior often subject to criminalization and formal legal sanction. These internal contradictions enhance students’ sense of the unfairness of school discipline. Longitudinal research has demonstrated that students who perceive school discipline as unfair are more likely to disobey teachers, disrupt classroom instruction, and in general fail to develop behaviors conducive to educational success and related positive outcomes.

Also, in recent decades schools have moved away from disciplinary practices that rely on the judgment, discretion, and action of professional educators and have turned instead to reliance on school security guards, uniformed police, technical surveillance, security apparatus, and zero-tolerance policies. The latter techniques are ill suited to the pedagogical task of enhancing the moral authority of educators to support the socialization of youth, that is, the internalization of norms, values, and rules.

Conclusion
Citizens, legislators, judges, and policymakers have begun to recognize and question legal interventions in situations involving school discipline and authority. We add to this discussion our findings that the legal understandings underlying school discipline policies depart in significant ways from the case law on which they are assumed to be based, according expansive rights and protections to students, even as the courts have tended to side with school authorities. We also document that although public-interest lawyers were initially motivated to expand student legal rights as part of a larger strategy to reduce social inequality, legal challenges to school disciplinary actions are disproportionately the province of white and higher-income students and their families.

The expansion of student legal entitlements has been accompanied by the increasing formalization and institutionalization of school discipline. As educators’ discretionary authority over school discipline has been challenged and undermined, counterproductive authoritarian measures such as zero-tolerance policies have been implemented in its place. But to be educationally effective, school discipline requires that educators have moral authority and students perceive their actions as legitimate and fair. Ironically, the expansion of student legal rights, rather than enhancing youth outcomes, has increased the extent to which schools have relied on authoritarian measures, decreased the moral authority of educators, and diminished the capacity of schools to socialize young people effectively.

As various social and political actors consider legal regulatory reforms, it is important to recognize that the expansion of students’ legal entitlements has also increased the potential for student dissent in U.S. schools, whether of a political, religious, or ideological character. At the same time, individual students and families with sufficient resources are able to contest what they perceive as unfair disciplinary sanctions or rights violations. These gains have come at a pedagogical and societal cost, as the resolution of school disciplinary matters has increasingly moved—as Justice Breyer feared—from the schoolhouse to the courthouse.

Richard Arum is professor of sociology and education at New York University, where Doreet Preiss is a research fellow and doctoral candidate. This essay is adapted from “Still Judging School Discipline,” in Joshua M. Dunn and Martin R. West, eds., From Schoolhouse to Courthouse: The Judiciary’s Role in American Education (Brookings, 2009).

For more, read “Law and Disorder in the Classroom,” by Richard Arum and Doreet Press

For more on this topic by Eric Hanushek, please see “Many Schools Are Still Inadequate: Now What?” in the Fall 2009 issue of Education Next.

Contact:
Eric Hanushek, Hoover Institution, (650) 736-0942
Michael Rebell, Columbia University, (212) 678-4144

STANFORD — With the U.S. Supreme Court expressing skepticism that dollars alone can remedy student achievement gaps in Horne vs. Flores late last week, the debate over the appropriate role of the courts in determining state school funding levels has heated up.

In a close decision in a case involving English language learners, the Supreme Court overturned a lower court decision concerning the equality of educational opportunities of Arizona students who face language barriers. The federal Equal Educational Opportunities Act of 1974 requires each state to “take appropriate action to overcome language barriers that impede equal participation by its students in instructional programs.” The lower court called for increased funding of language programs in Arizona, but the Supreme Court noted that its concentration on incremental funding was inappropriate. Citing research evidence about the lack of a relationship between spending and educational outcomes and about the ineffectiveness of previous court-mandated funding, the Supreme Court said that the lower court should also consider other school programs.

Justice Samuel Alito, writing the majority opinion, cited the work of education economist Eric Hanushek, a senior fellow at the Hoover Institution, who has long been critical of the role the nation’s courts have played in this issue. In the dissenting opinion, Justice Stephen Breyer cited the work of Michael Rebell, executive director of the Campaign for Educational Equity at Teachers College, Columbia University.

The debate between the two policy analysts, which appears to have influenced both majority and minority opinions of the court, is presented in the upcoming issue of Education Next. It is available online at www.Educationnext.org Here’s a sampling:

Eric Hanushek, joined by nationally recognized school finance lawyer Alfred Lindseth: Since about 1970, the achievement levels of U.S. students on the reading and math tests of the National Assessment of Educational Progress (NAEP) have remained largely flat despite massive financial and other efforts to improve them. The problem is particularly acute for poor and minority students, with the average black and the average Hispanic student lagging three or four grade levels behind the average white student.

The solution we need lies in performance-based funding: a system of integrated education policies and funding mechanisms designed to drive and reward better performance by teachers, administrators, students, and others involved in the education process. Such a system will ensure more effective use of education dollars through better decision making, will eliminate perverse incentives that reward mediocrity or failure, and most important, energize and will motivate those involved in the education of our young people.

The path to such reform will not be an easy one. While elements such as state standards, accountability measures, and value added measures are gaining acceptance, other important components, especially performance-based pay and increased choice options, are opposed by powerful forces — such as the politically connected teachers unions — with vested interests in the current system.

Michael Rebell: Extensive inequities in education funding, by which students with the greatest needs receive the fewest funds, still prevail in many parts of the United States; for that reason, state courts continue to have a critical role in ensuring meaningful educational opportunities for all children. The evidence strongly indicates that money well spent does make a significant difference in student achievement.

What is most likely to fulfill the promise of improved student outcomes in the future is not any silver bullet remedy, but rather a pragmatic process that allows courts, legislatures, state education departments, and school districts to work collaboratively to focus on children’s needs and to implement meaningful reforms on a sustained basis.

The courts’ role in this process is to outline in general, principled terms the expectation that the legislative and executive branches will develop challenging standards, fair and adequate funding systems, and effective accountability measures, but to leave to the programs and the political branches the full responsibility for actually formulating these policies.

Read “Many Schools Are Still Inadequate — Now What?”

Eric Hanushek is the Paul and Jean Hanna Senior Fellow at the Hoover Institution, Stanford University and a member of the Koret Task Force on K-12 Education. Alfred Lindseth is Of Counsel with the law firm of Sutherland, Asbill and Brennan. Michael Rebell is the executive director of the Campaign for Educational Equity at Teachers College, Columbia University .

Education Next is a scholarly journal published by the Hoover Institution that is committed to looking at hard facts about school reform. Other sponsoring institutions are the Harvard Program on Education Policy and Governance and the Thomas B. Fordham Foundation.

FOR FURTHER INFORMATION
Caleb Offley, Project Manager
Office of Public Affairs
Hoover Institution
Stanford University
Stanford, CA 94305-6010
offley@hoover.stanford.edu (585) 319-4541

In Bush v. Holmes (2006), the state supreme court struck down Florida’s Opportunity Scholarship Program, a small voucher program serving fewer than 800 students, on the grounds that it fell afoul of the state constitution’s “uniformity” clause, which allegedly prevents the state from funding any program outside of or “parallel” to the public school system.

Florida judges have been at it again. Late in 2008, a lower court struck down the Florida Schools of Excellence Commission, which was formed at Governor Jeb Bush’s urging in 2006 to provide alternative authorization for charter schools. Without the Excellence Commission, only local school boards can authorize new charter schools. School districts understandably can be loath to see their pupils—and, more important, the state funding that follows them—go to charter schools.

The statute that created the Excellence Commission allowed local school boards to petition the state board of education to retain exclusive authority to sanction charter schools within their districts. Thirty-one of Florida’s 67 local school districts requested such exemptions, but the state board granted only three: to Orange, Polk, and Sarasota, districts that had already created a significant number of charter schools (20, 24, and 9, respectively).

In response to having been denied an exemption, 14 districts led by Duval County challenged the constitutionality of the commission and thus sought to preserve their exclusive authority over chartering. The attorney representing the Duval school board, Ron Meyer, had also represented the Florida Education Association, the statewide teachers union, when it challenged the Opportunity Scholarship program in Holmes.

The plaintiff districts claimed that the commission fatally violated a provision of the state constitution holding that the local “school board shall operate, control and supervise all free public schools within the school district.” The court agreed with the school districts and went beyond just striking down the commission. Harking back to Bush v. Holmes, it ruled that the “statute [creating the commission] permits and encourages the creation of a parallel system of free public education escaping the operation and control of local elected school boards.”

The logic of the ruling leaves many other programs vulnerable to legal challenge. Florida’s virtual school, university-run laboratory schools, schools for juvenile offenders, a school for “high risk” boys including sex offenders, and the state school for the deaf and blind would all count as “parallel” public schools uncontrolled by local boards. Meyer declined to speculate if these other programs would be subjected to a legal challenge.

Members of the commission foresaw the ruling but expected the state board of education to appeal. The board said that “the issue received a fair hearing” and claimed that it “had no legal basis to pursue an appeal.” The Republican governor, Charlie Crist, supported the board’s decision, prompting education reformers to lament the loss of Jeb Bush, who they believed would not have been so submissive.

Supporters of the commission argued that the state constitution makes public education a shared responsibility between the state and local school districts. When the state bears significant funding responsibilities and monitors curricula, teaching credentials, and student assessment, school boards are not exclusively operating, controlling, and supervising schools in their districts. On the other hand, an appeal would have taken the issue to a state supreme court in which success was unlikely. Four of the justices in the Bush v. Holmes majority are still on the seven-member court although one of the four is subject to mandatory retirement this year. Avoiding an adverse decision from the supreme court could make it easier to undo the lower court ruling should conditions become more favorable.

As with the Opportunity Scholarship Program, the elimination of the Excellence Commission will not have a significant immediate effect on Florida schoolchildren. Of 54 charter requests submitted, only one eventually received approval. Had the commission been able to develop as a real alternative to local authorization, larger numbers of charter schools could have been established, and that likely would have created a powerful political constituency in support of charter schools, capable of resisting jealous attacks from the public education establishment.

Joshua Dunn is assistant professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

By Joshua M. Dunn

University of North Carolina Press, 2008, $37.50; 226 pages.

As reviewed by Nathan Glazer

If there are any school districts still under tight federal supervision of efforts to desegregate schoolchildren, more than a half century after Brown v. Board of Education, one does not hear of them. With the present posture of the Supreme Court it is unlikely any would be so hampered if an appeal against court supervision were carried that far. But until recently, school districts did operate under such supervision, often for decades after a case had originally been brought, and long after the original conditions that had motivated the case had radically changed. The Kansas City, Missouri, case, known through its long legal history as Jenkins v. State of Missouri, was perhaps the most notorious of the tortured efforts to overcome state-sanctioned segregation.

It was notorious for many reasons: First, the court ordered enormous state and city expenditures, intending to attract white schoolchildren from the suburbs to the Kansas City schools so as to provide the minimum number of white children that proponents of desegregation considered necessary for a desegregated or “unitary” school. Second, it was an extreme example of how our legal order permits judges, and unrepresentative plaintiff lawyers, to decide how to run schools in the effort to eliminate the evil of segregation. Third, it eventually demonstrated the wide gap between what the courts and the lawyers advising them thought was necessary to improve the educational achievement of black students, and what the black community thought necessary and desirable in the education of their children.

Most cases in school segregation began when the National Association for the Advancement of Colored People (NAACP) or another group sued a school system for failure to overcome segregation. In Kansas City, uniquely, it was the school district itself that sued. In Missouri, and some other states, state-required separation of schoolchildren by race ended shortly after the Supreme Court decision in 1954. Indeed, Kansas City had received effusive praise for its voluntary compliance from the U.S. Commission on Civil Rights, from Time magazine, and from The Nation.

But a good deal had changed between 1954 and 1977, when the Kansas City Metropolitan School District (KCMSD) brought its case. Eighteen percent minority in 1954, the schools were more than 60 percent minority in 1977. Blacks were moving into cities; whites with schoolchildren were disproportionately moving to suburbs outside city boundaries. Some whites undoubtedly moved because they resisted sending their children to schools with a majority of blacks, some moved because they economically were able to and preferred the suburbs, and some feared growing urban crime in the 1960s and 1970s. Whatever the reasons, in large urban school districts, which encompassed an ever-larger proportion of black children, the only way to achieve desegregation was through busing away from neighborhood schools, a remedy approved by the Supreme Court in 1971, unpopular almost everywhere, and often ineffective as white schoolchildren could move to private schools or to the suburbs.

The KCMSD—with its schools in disrepair, without what it considered adequate funding, and having endured damaging teacher strikes—took the ingenious route of suing the state, suburban school districts, and the Department of Health, Education, and Welfare and other federal government agencies for its inability to desegregate majority black schools. The case came up before Judge Russell Clark, born 1 of 10 siblings in rural southwestern Missouri, educated in a one-room schoolhouse, and appointed by President Jimmy Carter. In 1984, after a “tortuous” seven-year discovery process and a six-month trial, Judge Clark dismissed all the defendants except the state of Missouri, and “realigned” the KCMSD as a defendant along with the state. Apparently a federal judge can turn a plaintiff into a defendant. But since the KCMSD was no longer the plaintiff, who in our adversary legal system was to represent the new plaintiffs, now presumably the black students? The NAACP, the Southern Christian Leadership Conference, the American Civil Liberties Union, all turned down the opportunity. Then stepped forward Arthur Benson, a committed liberal lawyer who was to live with the case and, together with Judge Clark, shape it, for the next 20 years or so.

Judge Clark found the state and the school district liable for segregation, and then the issue became, what was the remedy? Kansas City schools were already predominantly minority, and the Supreme Court had ruled in the Detroit case that surrounding school districts not found guilty of segregation could not be pulled into a case to provide more white students for desegregation. The approach that was developed, with the advice of education-school professors, was to create “magnet” programs, which it was hoped could draw white children from Kansas City suburbs. The judge, following the experts, decreed the rebuilding of many schools for the purpose of making them attractive to the hoped-for suburban children, an expensive enterprise. And here the chief characteristic of this case emerged: The judge, in effect, imposed higher taxes on Kansas City, and on the state, to build the new magnet schools. The appeals court and the Supreme Court (by a bare 5 to 4) approved. The figures that eventually were spent in this effort to make the schools more attractive reached, in author Joshua Dunn’s estimate, $2 billion. That may not appear to be much these days, when a single failed firm may gobble up $85 billion in government money, but recall that this was a school district, in 1984, of 37,000 students (it had fallen from 51,000 at the beginning of the case), with a budget of less than $100 million.

The distinctive contribution of Dunn’s book is to emphasize the degree to which the district judge was not acting arbitrarily (though to some degree he was), but was constrained in what he could do by an appeals court following Supreme Court decisions. Judge Clark had to find the KCMSD schools “segregated,” according to these higher-court decisions, and had to respond, limited by the Supreme Court decision that he could not require the suburbs to participate. Magnet schools with elaborate facilities to attract suburban white children was the answer proposed by the education experts, supported by the plaintiff lawyer, and implemented by the judge. It did not sit well with the black community, which by the 1980s, certainly the ’90s, was more interested in getting better education for black children than in following the will-o’-the-wisp of integration. It found the magnet school approach mystifying and infuriating. Slavic studies? A classical Greek curriculum? That is not what our children need! And even when parents and children were interested in the magnets, they were limited in getting admission because the judge had decreed there must be four whites for every six blacks in each magnet school, and often too few whites were available to expand the black quota. Despite huge expenditure, integration was not much advanced.

Finally, the Supreme Court, responding to one of many state appeals, decreed in 1995 by a 5–4 vote that Judge Clark could not impose a program of magnet schools to attract white students from the suburbs. The district remained under judicial supervision, but by then black community leaders controlled the school district, which reinstituted neighborhood schools. Judge Clark’s successor, a Reagan appointee, finally succeeded in dismissing the case in 2003. Attorney Benson, still on the case, opposed the dismissal.

The schools seemed as dysfunctional at the end as they had appeared at the beginning. But by this time, the state had approved charter schools, and substantial numbers of Kansas City’s black schoolchildren were patronizing them. In 2005–06, some 26,000 children attended the public schools, 6,000 the charter schools.

Dunn’s final word: “The court and the black community disagreed on what the problems were. Legal doctrine asserted the problem was racial isolation. The black community asserted it was substandard education.” Dunn’s contribution is to show that the issue was not an imperial judiciary that wished to reshape the schools, but a course of successful litigation in which the concentration of black children, whatever the cause, became the only target at which the courts could aim. But in the end one wonders why the Supreme Court, which the appeals courts and district judges had to follow, was so slow in recognizing the impracticality of all the measures available to try to achieve integration in major cities with large black communities.

Nathan Glazer is professor emeritus of education and sociology at Harvard University.

A mother in Albuquerque, New Mexico, Jennifer Couture, sued school officials, claiming that their use of a timeout room for her son (“M.C.”) violated his Fourth Amendment right against unreasonable seizures and Fourteenth Amendment right to due process. The defendants claimed qualified immunity, which requires courts to rule in favor of a government employee unless the conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” A district court found for the plaintiff but was reversed by the Tenth Circuit Court of Appeals in August 2008.

M.C. in 2002 was six years old, profane, and violent. He hit furniture and threatened to kill students and teachers with hot oil. Having judged him “emotionally disturbed,” school officials had placed him in a special education program and prepared an Individualized Education Plan in consultation with his mother, who signed it. Teachers were obliged to follow the plan and report to his mother daily. Among the techniques of “behavioral intervention” prescribed were supervised timeouts in a timeout room.

After a visit, Ms. Couture objected to the characteristics of the room: “very small” with “carpeting, but no padding on the walls. Nothing in it…. It had a very dim light.” In an administrative appeal to a hearing officer, she also complained of “inappropriate reliance upon timeouts and physical restraints.” Defeated there, she complained to the district court under section 1983 of the U.S. Code, which individual litigants often use in an effort to show that state or local officials have deprived them of constitutional or federal statutory rights. The district court was troubled by the length of some of the timeouts and what seemed on occasion to be insufficient provocation on M.C.’s part, such as refusing to take his spelling test.

The circuit court, questioning the district court’s mode of analysis, found that the defendants were entitled to qualified immunity. Even if putting M.C. in the timeout room were considered a seizure—a question that the court declined to decide—it was not unreasonable. The court expressed sympathy both for Ms. Couture and the teachers, but ruled that “The Fourth Amendment…does not empower federal courts to displace educational authorities regarding the formulation and enforcement of pedagogical norms…. If we do not allow teachers to rely on a plan specifically approved by the student’s parents and which they are statutorily required to follow, we will put teachers in an impossible position—exposed to litigation no matter what they do.”

The court acknowledged that M.C.’s behavior did not improve with the timeouts. “But whether the timeouts were a good or effective teaching method is not the relevant question…. This was primarily a pedagogical judgment for the educators on the spot to make.”

In response to the Fourteenth Amendment claim, the court said that at some point, removing M.C. from the classroom and putting him in timeout might have gone so far as to deprive him of a protected interest in a public education, but the circuit judges, unlike the district court, concluded that 21 timeouts totaling approximately 12 hours over two and a half months did not go that far. Besides, they said, timeouts were not an interruption of his education, they were part of it.

For schools, the decision signaled that courts would prefer leaving management of troubled students to educational professionals as long as they abide by the law. For state governments wishing to avoid lawsuits, the lesson may be that laws should be crafted to give parents ample choice. For example, Florida law gives all parents with a child in special education the option of finding a private school with support to the same level as the average spent statewide on students with that disability.

Joshua Dunn is assistant professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

Flores v. Arizona was filed in 1992, a class action brought by an advocacy law firm on behalf of parents in the town of Nogales. The suit rested on the Equal Educational Opportunities Act of 1974, which provides that no state shall fail “to take appropriate action to overcome language barriers that impede equal participation…in its instructional programs.” In 2000, a federal district judge ruled that Arizona was violating this relatively obscure law, both by not spending enough on its Lau programs—a reference to a Supreme Court decision of 1974 and regulations of the federal Office for Civil Rights—and by failing to provide enough teachers, aides, classrooms, materials, and tutoring. Eight years later, Arizona is spending $430 extra per ELL student per year, but has not satisfied the court. Rather, the legislature challenged the court with a law that would have put a two-year cap on extra spending for any individual ELL student and use federal funds in place of some state funds.

Arizona did not appeal the judgment and signed a consent decree that addressed matters other than spending. The spending issue festered as the politics grew more problematic. In 2000 the electorate approved a ballot initiative that abolished bilingual education and replaced it with English immersion. Janet Napolitano, a Democrat who was elected governor in 2002 and reelected in 2006, has battled with Republican state legislators over what to do.

Judge Raner Collins has twice found the state to be in civil contempt. Early in 2006, he imposed a fine of $500,000 per day, to be held in a fund dedicated to ELL instruction. A total of $21 million was collected from the state, but the Ninth Circuit appeals court ruled that Collins had exceeded his authority and canceled the fines. He has also hinted at jail sentences, which presumably would fall on the Speaker of the Arizona House and the president of the Senate, who are intervenors in the suit, and the superintendent, who is a named defendant.

Judge Collins found an ELL law enacted by the legislature in 2006 without the governor’s signature to be inadequate, but the Ninth Circuit instructed him to hold an evidentiary hearing to determine whether the original court order was still valid. The intervenors argued that changes of fact (increases in general education spending) and in law (enactment of No Child Left Behind) made the original order obsolete and asked to be relieved from judgment. Collins ruled against them and was upheld in 2008 by the Ninth Circuit.

Under threat again of fines, the legislature approved an additional $40.6 million for ELL in April 2008, and again the governor let the bill become law without her signature. Districts were instructed to use model plans developed by the state department of education, which called for four hours a day of intensive English instruction. This directive caused trouble on the local front, in districts that resisted the four hours of immersion or were disappointed with the allocation formula. A Tucson-area district, Sahuarita, announced that it would defy the state law, stating that federal civil rights laws are trump.

The issue headed, once again, to Collins’s court, with a renewed demand from the Flores plaintiffs for more money. Tom Horne, the outspoken state superintendent, protested that “we don’t need an aristocracy of federal judges ruling over us.” Horne and the legislative leaders have demonstrated, if nothing else, that determined opponents of the “judicial aristocracy” can buy a lot of time, and probably avoid going to jail.

Joshua Dunn is assistant professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

Last August a public-interest law firm in California, Public Advocates, thought it had found a chink in the Department of Education’s interpretation of the “highly qualified” teacher provision of NCLB. In Renee v. Spellings, filed in a federal district court in San Francisco, Public Advocates argued that the department had flouted the law by permitting employment of teachers still in training.

NCLB required that all of the nation’s public school teachers be “highly qualified” by the end of 2005–06 and set as a standard that they have a bachelor’s degree, meet state licensure requirements, and demonstrate competence in a core subject. Many of the nation’s teachers, especially in the poorest urban districts and in the 5,000 school districts classified as rural, had fallen short of that standard. Congress’s approach to this shortage of formally trained teachers was to decree that it was unlawful.

When a law and social realities are seriously at odds, as in this case, administrators must employ flexibility and ingenuity to make the law “work,” or appear to. One of several approaches devised by the department was to allow so-called alternative-route teachers to teach for up to three years while seeking certification. (An “alternative route” is meant to facilitate entry of teachers who have not followed a standard teacher-training curriculum.) Attacking the three years of grace as a “major loophole,” Public Advocates asked the court to strike it down, asserting that 100,000 teachers nationwide had slipped through the loophole, 10,000 in California alone, which it took to be a measure of injustice but might be thought from a different political perspective to be an indicator of districts’ needs. The will of Congress is deeply ambiguous, because the law says both that alternative-route teachers satisfy the mandate and that full licensure cannot be waived provisionally.

A more tantalizing target of NCLB litigation has been a provision, dating from the mid-1990s and authored by Republicans who were trying to protect state governments from unfunded mandates, that says, “Nothing in this act shall be construed to…mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this act.”

In 2005 two sets of litigants mounted suits with this language in an effort to secure more federal funding or relief from federal requirements, but were not expected by legal analysts to get far (see “NEA Sues over NCLB,” legal beat, Fall 2005). The state of Connecticut, most of whose claims have been dismissed by a federal judge in New Haven, in fact has not gone far. And the other case, which was brought by the National Education Association in collaboration with several school districts in Michigan, Texas, and Vermont, appeared headed for oblivion when the trial judge dismissed it. But the plaintiffs appealed, and in January of this year a three-judge panel of the Sixth Circuit ruled 2 to 1 in their favor (see “Accountability Left Behind,” features).

Rather than oblivion, Pontiac v. Spellings, as this case is known, could be heading eventually for the Supreme Court, which has the last word on states’ obligations under grant-in-aid statutes. The case has been remanded to the district court with an admonition that statutes enacted under the spending clause of the Constitution must provide “clear notice” of their liabilities should states accept the federal funding, along with the majority’s judgment that in NCLB, Congress failed to do that.

In the meantime, Congress continues to struggle with reauthorizing NCLB, and if some of the law’s critics have their way (see “The Enforcers,” legal beat, Fall 2007), the revised version will expand the opportunities to sue.

Joshua Dunn is assistant professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

Under the Individuals with Disabilities Education Act (IDEA), originally passed in 1975 as Education for All Handicapped Children, children with disabilities are entitled to a free appropriate public education based on an individualized education program (IEP). If the public school says it cannot provide an appropriate education or if an appeals board after a hearing determines that the public program is inadequate, parents are entitled to reimbursement for a suitable private program.

Just nine days after hearing oral arguments, the Court produced a two-sentence per curiam decision based on a 4–4, but unidentified, split. The decision upheld the Second Circuit, but lacks precedential value. The tie occurred because Justice Anthony Kennedy had recused himself. While the even split might point to a typical liberal/conservative divide in need of brokering by the unpredictable Kennedy, the facts of the case suggest that the split may not be ideological.

In particular, the parent behind the case muddied it. Tom Freston, the Tom F. of the title, seemed an unlikely person to be leading a challenge against the school board. As a co-founder of MTV (Music Television Network), former Viacom executive, and recipient of an $85 million golden parachute, Freston could afford to pay for the best education for his son, Gilbert, who was diagnosed in the mid-1990s with attention deficit hyperactivity disorder. However, in both 1997 and 1998 Freston sought a special education evaluation from the district.

The district created an IEP that called for placing Gilbert in a public school. Freston objected, enrolled his son in Manhattan’s exclusive Stephen Gaynor School, with tuition of more than $20,000 per year, and threatened to sue. The district agreed to pay tuition for those two years, but created a new plan for Gilbert in 1999 that would have placed him in a public school. Freston sued. An appeals board sided with him, only to be overturned by a federal district court, but the Second Circuit ruled in Freston’s favor. While the school district contended that the language of IDEA demanded attendance at a public school first, the Second Circuit had already ruled in a prior case that this was an incorrect reading of the law, and could unreasonably require parents either to place children in an inadequate program or shoulder the financial burden of a private education, a result it called “absurd.”

Freston says that he pursued the case out of principle and has promised to give any reimbursement he receives to charity. However, his wealth seemed to trouble the Court at oral argument. Justice Antonin Scalia was particularly vexed by the idea that well-heeled families might game the system to get reimbursed for private school tuition when they never had any intention of using a public school regardless of the quality of the program.

Both the Right and the Left may have difficulty reaching a position on this issue. Conservatives could see a victory for Freston as highlighting the failures of public education and providing a back door to school choice. Or they could view it as one more entitlement that unjustifiably burdens local school systems. Liberals could be torn between their support for public education and that for disabled students and expansive entitlements. The specter of well-to-do parents working the system would give them pause as well, but to impose means testing would undermine popular support for IDEA.

Soon after the Court failed to resolve the case of Tom F., it denied certiorari in the earlier case from the Second Circuit, with Kennedy again recusing himself without explanation. This could mean that the Court as presently composed will never decide the issue, even though a conflicting decision exists in the First Circuit, which read the law differently.

-Joshua Dunn is assistant professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

This was the legend on a 14-foot banner that Joseph Frederick, a high school student in Juneau, Alaska, unfurled in 2002 at a school-sponsored parade. Detecting a celebration of drug use—a bong is a marijuana water pipe—the school principal, Deborah Morse, ordered Mr. Frederick to lower the banner and suspended him for 10 days. He sued, claiming a violation of his First Amendment rights to free speech. A three-judge panel of the Ninth Circuit not only ruled for him, but also concluded that Ms. Morse was personally liable.

Robert’s opinion for the court, in which four other joined, did not go so far as to say that students have no First Amendment free-speech rights, as Justice Clarence Thomas wished. Thomas would have overruled Tinker v. Des Moines Independent Community School District, a Vietnam-era (1969) case involving students who wore black armbands in protest of the war. In Tinker the Court ruled for the students and famously said that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Nor did the Court duck the constitutional question altogether, as Justice Stephen Breyer wished. Breyer said that the Court need not decide the First Amendment issue on the merits, but should merely hold that Ms. Morse was immune to Frederick’s claim for monetary damages.

The majority ruled that students at school or a school function do not have a First Amendment right to promote illegal drugs. Breyer worried that, rather than being a help to teachers, this seeming victory would merely incite the nation’s adolescents to mount new challenges. What if a student flew a “Wine Sips 4 Jesus” banner, Justice John Paul Stevens mischievously asked. The good news for school administrators was that neither he nor any other member of the Court believed that Ms. Morse should be liable for damages.

The case that went against school administrators—really two cases, one from Seattle and a companion from Jefferson County, Kentucky—involved school districts’ classifying and assigning students by race in order to achieve racial balance. A majority opinion written by Chief Justice Roberts argued that the Constitution is colorblind and struck the plans down. But though Justice Anthony Kennedy found defects in the two plans and therefore joined in the result, making a 5–4 majority possible, he did not embrace Roberts’s enunciation of the constitutional principle. The Constitution cannot be colorblind in the real world, he said, and school districts can adopt race-conscious measures as long as they don’t treat “each student in a different fashion solely on the basis of a systematic, individual typing by race.”

Justice Kennedy offered what he regarded as acceptable methods of considering race such as “strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.” But knowing the general demographics of neighborhoods or recruiting students and faculty in a targeted fashion would seem to require some systematic, individual typing by race. Such confusions led commentators on the Kennedy opinion to despair and will likely have the same effect on school administrators. Local districts are obliquely invited to construct affirmative action plans, with the knowledge that they may in time be scrutinized by a divided and inscrutable Court.

“Liberty finds no refuge in a jurisprudence of doubt,” the Court said in Planned Parenthood v. Casey (1992), in a rhetorical phrase commonly attributed to Kennedy. But the jurisprudence produced by the early Roberts Court on schools is steeped in doubt. The Court has taken a fresh plunge into the constitutional thicket, wherein it is the prerogative of judges to write and rewrite the maps.

Joshua Dunn is assistant professor of polical science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

The most significant ruling, noticed nationwide, came in November, 2006, in CFE v. State of New York (III), a lawsuit of 13 years’ duration. New York’s court of appeals, the state’s highest court, decided 4 to 2 that $1.93 billion in additional annual spending was sufficient to provide an adequate education for New York City public school students.

Only in the world of adequacy litigation could this be a disappointment to the plaintiffs, but the Campaign for Fiscal Equity (CFE) was hoping for much more. Even though New York’s constitution says nothing about adequacy, in 2003 the appeals court had accepted CFE’s claim that the state was not providing an adequate education for New York City students and ordered it to rectify this manufactured constitutional wrong.

That ruling set off a series of rival “costing out” studies, which purported to determine how much money it takes to educate a child adequately. Relying on figures from consultants hired by the plaintiffs, lower courts endorsed a range of $4.7 to $5.63 billion in additional funds. New York’s then attorney general, Eliot Spitzer, asserted in his brief for the defendant that $1.93 billion was sufficient, a figure derived from a consultant’s study done for the state government. A Democrat, Spitzer promised in his 2006 campaign for governor to spend more on schools than he endorsed in the brief, but the four-person Republican majority of the court, all of whom were appointed by outgoing governor George Pataki, a persistent opponent of the CFE, was under no obligation to take notice of what Spitzer said as a candidate.

The high court agreed with Spitzer in his role as the state’s chief attorney. Approving a number in a legal brief allowed retreat from the political thicket and mathematical quagmire created by CFE v.New York.“Deference to the legislature,” the court stated, “is especially necessary where it is the State’s budget plan that is being questioned…. The Legislative and Executive branches of government are in a far better position than the Judiciary to determine funding needs throughout the state and priorities for the allocation of resources.”

Similarly, in November, 2005, the Texas Supreme Court beat a retreat in Neeley v.West Orange-Cove.Texas had been plagued with decades of legal and political battles over school funding. The legislature and governor repeatedly failed to satisfy judicial commands. In 2005, hundreds of school districts asked the court to rule that both the system of funding education and the amount were unconstitutional. The court determined that the funding system rested on an unconstitutional state property tax. However, it refused to find that the level of spending, a statewide average of $10,000 per pupil, was inadequate.

The court said that it could ensure that “constitutional standards are met,” but not prescribe “how the standards should be met,” adding, “more money does not guarantee better schools or more educated students.”

What appears to be a trend began with the Massachusetts Supreme Judicial Court’s decision in Hancock v.Driscoll in February, 2005. In 1993, the court had ruled that the state system of education was unconstitutionally inadequate. The legislature passed a reform package that increased spending and strengthened testing and accountability measures. Nineteen low wealth, poorly performing districts returned to the court in 1999 with a claim that the education system was still inadequate. The court, which has earned a reputation for policy boldness, nonetheless ruled that a finding of inadequacy would require “policy choices that are properly the Legislature’s domain.”

While these decisions do not spell the end of adequacy lawsuits, they suggest that judges may be growing weary of being asked to resolve the intractable problems afflicting the states’ poorest-performing school districts.

Josh Dunn is professor at the University of Colorado–Colorado Springs.

Martha Derthick is professor emeritus at the University of Virginia.

The law regarding vouchers is in the midst of fundamental change. About a year ago, no one knew whether voucher programs could include private religious schools without running afoul of the First Amendment’s establishment clause. That clause prohibits “any law respecting an Establishment of Religion” and is popularly understood to create a “wall of separation” between church and state. Today, after the Supreme Court’s 2002 decision in Zelman v. Simmons-Harris, not only is it clear that voucher programs may include private religious schools, but it is quite possible that they must.

Indeed, the Supreme Court will decide a case this term, Davey v. Locke, which could resolve this very question. The lawsuit began when Washington State’s Higher Education Coordinating Board revoked a state-funded “Promise Scholarship” from Joshua Davey, who was then a student at Northwest College, a private Christian school in Kirkland, Washington. The scholarship was available to students from low- and middle-income families who finished in the top 10 percent of their high-school class and enrolled in one of the state’s accredited public or private colleges. However, in October 1999, the fall of Davey’s freshman year, the Board notified colleges that students majoring in theology were ineligible for the scholarship, citing a provision in the state constitution that bans public support for religious instruction. Davey, who planned to become a minister and had declared a major in “pastoral studies,” lost his scholarship and promptly sued the state.

By a 2-to-1 vote, the Ninth Circuit Court of Appeals overturned the state agency’s decision, holding that it “facially discriminates on the basis of religion.” The state “may not offer a benefit to all,” the Court concluded, “but exclude some on the basis of religion.” If the Supreme Court, as many expect, agrees with this reasoning, it would seem to follow that excluding religious schools from voucher programs is also unconstitutional. This would not end all legal challenges to vouchers, but it would constitute an enormous sea change in the law surrounding voucher programs. Describing the origins and direction of that change, as well as marking the legal battles that lie ahead, are the subjects of this essay.

While Speaker of the House in 1875, James G. Blaine introduced a constitutional amendment that would have prohibited any state from providing money to schools “under the control of any religious sect.” The amendment failed at the national level, but most states adopted laws with language modeled after Blaine’s proposal.

After Zelman

The transformation in the law regarding vouchers began last June with the Supreme Court’s historic Zelman decision. By a 5-4 vote, the Court upheld Cleveland’s voucher program, which offers a limited number of students the chance to attend private schools, including religious ones, at public expense. The Court determined that Cleveland’s program was formally neutral toward religion and that government aid reached religious schools “only as a result of the genuine and independent choices of private individuals.” As a result, the Court reasoned, the program did not violate the establishment clause’s prohibition on “advancing religion.” The Court’s decision, fairly read, is a sweeping endorsement of the proposition that voucher programs may include private, religious schools.

The Court essentially established a two-part test for judging voucher programs, and both parts are easy to meet. First, the program must be neutral with regard to religion. Under the Court’s interpretation of “neutrality,” this simply means that the formal criteria for selecting students and schools to participate in the program cannot be based on religion, nor can a program skew the choice toward religious schools by, say, providing more money for students who select religious schools. Importantly, it is legally irrelevant if most of the voucher students ultimately end up in religious schools, as was the case in Cleveland, where 96 percent of voucher students were attending religious schools. A voucher program, in other words, must be neutral in its design, but not necessarily in its impact.

The second part of the test is only slightly more difficult to meet. In addition to being neutral, voucher programs must offer individual students and parents a “genuine choice” among religious and secular schools. This is important, the Court explained, because allowing individuals to choose where to use public money defuses the charge that the government is supporting religion. Money that is spent at religious schools, under this view, arrives there not because of government direction, but rather because of an individual’s choice. As a result, the argument concludes, the government cannot reasonably be seen as endorsing religion.

The big question, of course, is, What represents a “genuine” choice? The Court did not define this term with much precision, but its discussion of the choices available to Cleveland students tells us much. In considering the options available to Cleveland students, the Court did not confine its analysis to the private sector. Since students in Cleveland could choose to attend a private school, a public magnet school, or a charter school, the Court reasoned that the existence of magnet and charter schools should be considered in assessing whether students have a genuine choice among secular and religious schools. This makes it considerably easier for voucher programs to meet the criterion of providing a “genuine choice.” Even if most of the private schools participating in a voucher program are religious, as long as some viable options exist within the public school system, the genuine choice requirement should be satisfied. Given that voucher programs are most likely to develop in urban districts, and given that most of these districts already operate both magnet and charter schools, the genuine choice requirement should not be much of an obstacle.

The secular options, moreover, need not be demonstrably better than religious schools. In the words of Justice O’Connor, who wrote at length on this issue in a concurring opinion, the secular options “need only be adequate substitutes for religious schools in the eyes of parents.” Tellingly, neither the majority nor Justice O’Connor seriously considered remaining in Cleveland’s neighborhood schools a viable option. This was not surprising, given that the main justification for the voucher program was the abysmal state of Cleveland’s regular public schools. The ironic implication, however, is that voucher programs may be on stronger constitutional footing in those places where they are arguably least needed-because the neighborhood schools are good. In such districts, the neighborhood schools should be considered one of the choices available among secular and religious alternatives. Once remaining in a neighborhood school counts as a genuine option, it would be virtually impossible to strike down a voucher program even if all of the private schools participating in the voucher program happened to be religious.

The Blaine Amendments

Although Zelman gives a bright green light to states looking to include religious schools in voucher programs, it does not resolve all of the potential legal challenges awaiting such programs. The next round of legal skirmishing will involve the so-called Blaine amendments, which exist in roughly two-thirds of state constitutions (see Figure 1). The amendments are named after the 19th-century presidential aspirant James G. Blaine, who, while Speaker of the House in 1875, introduced a constitutional amendment that would have explicitly prohibited any state from providing money to schools “under the control of any religious sect.” Introduced at a time of widespread Protestant hostility toward the Catholic Church, the amendment’s thinly veiled purpose was to bar public money from supporting Catholic schools. It fell just shy of the votes needed at the federal level, but a number of states soon included provisions in their constitutions modeled after Blaine’s proposal. Congress, moreover, required a number of states to adopt such provisions as a condition of their admission into the Union.

The precise wording of Blaine amendments varies from state to state, but they are all fairly explicit in barring aid to religious schools. Florida’s constitution, for example, declares, “No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.” Related provisions in other state constitutions prohibit the “compelled support” of taxpayers for religious worship or instruction.

On their face, the Blaine amendments appear to place a formidable obstacle in the way of including religious schools in voucher programs. Voucher opponents are counting on them in their effort to thwart voucher plans in state courts, and voucher proponents are fretting that they won the battle in the Supreme Court but may ultimately lose the war. In my view, however, the Blaine amendments do not represent a serious threat to voucher programs that include religious schools.

For one thing, it is likely that a number of state courts will interpret these amendments narrowly and conclude that they do not prohibit voucher programs. The Ohio and Wisconsin state supreme courts have already followed this path. Like the Supreme Court in Zelman, the Ohio and Wisconsin courts reasoned that voucher programs do not provide money for the benefit of religious schools but rather for the benefit of students and their parents, who may independently choose to use the voucher at a religious school. Other courts may follow Ohio and Wisconsin’s lead, especially in light of the Zelman decision and the increasing popularity of voucher programs.

Not all courts will be as generous. A lower court in Florida, for example, has already concluded that the state’s voucher program violates the state constitution, a decision that is now before a Florida state appeals court. Other state courts have indicated that they, too, will read their Blaine amendments as prohibiting aid to religious schools, regardless of whether the aid is given directly by the state or indirectly through parents and students. The big question is, What happens then?

Unconstitutional Amendments?

Here is where it gets really interesting. What will likely happen is that the Blaine amendments themselves will be deemed to violate the federal constitution. The reason is fairly straightforward. Before Zelman, prohibiting religious schools from participating in voucher programs might have been thought necessary to avoid violating the federal establishment clause. After Zelman, however, there is no obvious justification for treating religious schools differently from secular ones in the context of a voucher program. This means that excluding religious schools may violate not one but three separate constitutional provisions: the equal protection clause, the free exercise clause (which protects the free exercise of religion), and the free speech clause. The equal protection clause and the free exercise clause both prohibit discrimination on the basis of religion unless there is some compelling reason for the discrimination. A court could easily conclude that excluding religious schools from voucher programs constitutes discrimination on the basis of religion.

The free speech clause might not seem relevant at first, but it too could be read to require the inclusion of religious schools in voucher programs. The Court has interpreted this clause to bar discrimination on the basis of viewpoint. In an analogous case, it relied on the free speech clause to strike down the University of Virginia’s (UVA) refusal to allow a religious organization run by students to receive funds that were made available to secular organizations. Doing so, the Court concluded, represented discrimination on the basis of the organization’s religious viewpoint. It is true that state governments may have a more substantial interest in regulating the content of K-12 education than they do in regulating the speech of university student organizations. But the structure of voucher programs is similar to the program at UVA. Voucher programs offer public funds to private schools, which differ in the messages they seek to convey through their curricula, just as UVA offered funds to various student organizations. To allow a diverse array of private schools while excluding schools that promote a religious message could be seen as discrimination on the basis of the viewpoint of religious schools.

Notice that these arguments do not suggest simply that Blaine amendments might run afoul of the U.S. Constitution. They also suggest that a state legislature’s decision to exclude religious schools, made independent of any Blaine amendment, would also be unconstitutional. In other words, if any one of these three arguments is successful, all voucher programs that exclude religious schools, for whatever reason, may be unconstitutional.

Admittedly, there are plenty of ambiguities in how the Court has interpreted and applied the equal protection, free exercise, and free speech clauses. In particular, the fact that voucher programs involve a subsidy to religious schools could complicate the analysis, because the Court has occasionally accepted the argument that the failure to provide a subsidy for an activity or institution does not itself constitute impermissible discrimination. In the abortion context, for example, the Court has allowed state and federal governments to provide money to poor women who carry their pregnancies to term but to deny it to women seeking an abortion. In spending its own money, the Court reasoned, a government can choose which activities to subsidize, and the failure to subsidize a constitutionally protected activity-such as obtaining an abortion-is not necessarily unconstitutional. Using similar reasoning, the Court could ultimately conclude that it is permissible to fund secular but not religious schools, even though students have a constitutional right to attend religious schools.

The Court has also on occasion allowed the government to engage in viewpoint discrimination by choosing to subsidize some messages but not others. The basic idea behind cases of this sort, which are hard to reconcile with cases like the one involving UVA, is that the government should be able to decide what sort of messages it wishes to convey, and it should be able to convey those messages by subsidizing certain private speakers (and their messages) but not others. To take another example from the abortion context, the Court has allowed the government to make funding to family-planning services conditional on their promise not to provide information about abortion. Such a condition was permissible, in the Court’s view, because the government should be allowed to make a value judgment favoring childbirth over abortion and to implement that judgment through the allocation of public funds. Again, similar reasoning could be used to justify a government’s decision to fund secular but not religious education, which could be described as just another value judgment.

Lower courts and ultimately the Supreme Court accordingly have some room to reach whatever conclusion they favor. Political judgments and preferences, rather than purely legal ones, may determine how these questions are resolved. We will have some answers soon enough, as the Davey case, now pending before the Court, presents many of the same issues. There, Washington State relied on its own Blaine amendment as justification for excluding theology students from participating in the state’s public scholarship program. Given the conservative bent of the current Supreme Court, I am fairly confident that it will conclude, as the court below did, that such exclusion unconstitutionally discriminates on the basis of religion. And if Washington’s scholarship program is unconstitutional, it is hard to see why excluding religious schools from publicly funded voucher programs would not also be unconstitutional.

Even if this prediction proves incorrect, there is a final reason why the Blaine amendments might be unconstitutional. This has to do with the fact that most, if not all, of the amendments were adopted because of hostility toward the Catholic Church. The equal protection and free exercise clauses, as suggested above, generally prohibit laws that discriminate on the basis of religion or that discriminate against a particular religion. The history of the Blaine amendments suggests that they were designed to discriminate against Catholic schools.

Although this legal argument may succeed in some state courts, voucher proponents seeking to overturn Blaine amendments on this basis face a number of practical difficulties. First, the fight would have to occur state by state, with courts looking into the history of specific state amendments. Second, and more troublesome for voucher advocates, a court might conclude that the passage of time or a more recent rewriting of a state constitution has cleansed whatever improper motive lay behind the original adoption of the Blaine amendment. Moreover, even if a court were to strike down a Blaine amendment on these grounds, there would be nothing to prevent a state’s passage of precisely the same provision, provided that the reenactment was not motivated by anti-Catholic bias. For all of these reasons, voucher proponents will certainly be pinning their hopes on a favorable decision in Davey.

One final wrinkle must be noted. About ten states, including California, Colorado, and Massachusetts, have provisions in their constitutions that prohibit aid not just to private religious schools, but to all private schools. Colorado’s constitution, for example, provides: “No appropriation shall be made for . . . educational or benevolent purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association.” These provisions, which have gone virtually unnoticed in the voucher debates thus far, represent a much more serious obstacle to voucher programs because they do not discriminate on the basis of religion. It is possible, of course, that state courts will interpret these provisions to allow aid to flow indirectly to private schools, through the use of vouchers. But if courts interpret these provisions strictly, the only option for voucher proponents would be to amend the state constitution. This might seem like a far-fetched possibility, but it is actually a realistic option in many states, where amending the constitution, while not simple, has proved much easier than trying to amend the federal Constitution.

Indeed, Colorado recently enacted a voucher program, and voucher proponents are already at work to amend the Colorado constitution to remove the blanket prohibition on aid to private schools. In the meantime, however, voucher opponents have filed suit alleging, among other things, that Colorado’s program runs afoul of the state constitutional ban on aiding private schools.

Most, if not all, of the 19th-century Blaine amendments were adopted because of hostility toward the Catholic Church and the immigrants who professed this faith.

Regulating Voucher Schools

A separate and equally vexing set of questions facing voucher programs has to do with government regulation of private schools. States may want to regulate schools that accept vouchers in at least one of two ways. First, given the popularity of the accountability movement, states may require voucher schools to follow state academic standards and administer standardized tests. Second, they may enact laws that protect prospective students and teachers from discrimination based on certain characteristics, such as race, gender, religion, or sexual orientation.

As for the first concern, some states may not have much of a choice when it comes to monitoring the performance of students in voucher schools. In about 20 states, courts have concluded that students have a state constitutional right to an “equal” or “adequate” education. To guarantee that right, legislatures are often required to ensure a certain level of funding to public schools and to provide a realistic opportunity for students in those schools to meet certain academic goals. It is quite possible that this duty would also extend to voucher schools. To the extent that the right to an equal or adequate education is a personal right, held by each student, the legislature may be required to ensure that any school that a student attends with public funds delivers a constitutionally sufficient education.

Consider the voucher program in Florida. A recent constitutional amendment states that students in Florida are entitled to a “high quality” education. Under Florida’s program, vouchers are available to students attending schools that have received a grade of “F” for performance for two consecutive years. Presumably such schools are not providing a high-quality education. Private schools in Florida are not currently graded or otherwise monitored in the way that public schools are. The question is whether simply providing vouchers to students, who can use them to attend better public schools or private schools, is sufficient to satisfy the legislature’s obligation to provide a high-quality education to all students. This is a hard question.

The legislature’s duty might be satisfied as long as students have a “genuine choice,” to borrow a phrase from Zelman, to attend at least one school that delivers a high-quality education. But even this limited duty would require the state to regulate at least some private schools if there are not enough seats in “good” public schools. And it is quite possible that a court would go further and require the state to ensure that all participating voucher schools deliver a high-quality education. It would follow that whatever public schools are required to do in order to ensure a high-quality education, voucher schools may also have to do. It could also follow that, to the extent that a certain level of funding is required to guarantee a high-quality education, the value of the state voucher must not fall below the constitutionally required level of funding per pupil.

A court might conclude that the passage of time or a more recent rewriting of a state constitution has cleansed whatever improper motive lay behind the original adoption of the Blaine amendment.

Defensive Plays

Through the mechanism of standards and testing, states could come to regulate what is taught in private voucher schools. Through antidiscrimination statutes, they could come to regulate who is allowed to teach in and attend voucher schools. The question is whether voucher schools are constitutionally immune from any or all of these potential regulatory intrusions. Voucher schools can be expected to rely on at least three federal constitutional rights in an effort to block regulation: the free exercise clause, the First Amendment right to association, and the free speech clause.

A free exercise claim is perhaps the easiest to analyze. According to a fairly controversial Supreme Court decision about a decade ago, the free exercise clause does not prohibit a state from applying religiously neutral and generally applicable laws to religious institutions or individuals. Although some strange quirks exist within this rule, it seems safe to conclude that the free exercise clause would not entitle private religious schools to an exemption from generally applicable antidiscrimination or academic regulations.

A harder question is posed by the right to association. The Supreme Court recently breathed new life into this somewhat limp right when it decided that the Boy Scouts had a First Amendment right to exclude an openly gay scoutmaster. Such exclusion, the Court concluded, was necessary to preserve the Scouts’ right of “expressive association.” To force the Scouts into accepting a gay scoutmaster, according to the Court, would require the Scouts to endorse a message contrary to their core principles. It is not at all clear how far this rejuvenated right will ultimately extend-whether, for example, it would allow the Scouts to send a message of racial intolerance by excluding African-American scoutmasters. But it is not hard to see that such a right, were it extended to private schools, could provide a constitutional excuse for the decision to exclude certain teachers or perhaps even certain students. If a conservative religious school, for example, wished to condemn homosexuality, it would not be much of a stretch for a court to shield the school using the right to association.

Even if a court were to extend the right of expressive association to private schools, this right is not absolute. It can be overridden by laws or regulations that serve a compelling state interest. In the Boy Scouts case, the Court found that preventing discrimination against homosexuals by private organizations was not a sufficiently compelling state interest. Given the importance of education, however, it may be that preventing discrimination in schools would be more paramount. Again, there is enough play in the joints of the law to enable courts to reach their preferred result, for whatever reason. The resolution of this question may thus depend on the political makeup of whatever court confronts it and on the groups seeking antidiscrimination protections. Courts may be very reluctant, for example, to condone the notion that private schools have a First Amendment right to exclude African-American students or teachers. They may be less reluctant to recognize a right to exclude homosexuals.

If the Supreme Court, as many expect, voids Washington State’s decision to revoke Joshua Davey’s scholarship, it could constitute an enormous sea change in the law surrounding voucher programs.

The final potential challenge to state regulations rests on the free speech clause. Private schools might assert that certain curricular requirements burden their right to free speech. Private schools might also object to regulations like the one governing the Cleveland voucher program, which prohibits voucher schools from teaching “hatred of any person or group on the basis of race, ethnicity, national origin, or religion.” Although a distasteful prospect, it is possible that at least some schools may wish to teach hatred, or at least intolerance of other groups.

Whether the free speech clause would protect such schools turns on the analysis provided above. If excluding religious schools from participating in voucher programs represents impermissible viewpoint discrimination, then requiring voucher schools to refrain from disseminating certain messages would also be impermissible. But if the government can selectively fund certain schools based on its agreeing with their messages, then regulating their content should not be a problem.

Given the uncertainty in the law and the range of regulations that a state may wish or be forced to apply, it is difficult to say how the battle over regulations will be resolved. But its outcome could be as important as the battle over the Blaine amendments. The reason is that the more regulations a state imposes on private schools as a condition of participating in voucher programs, the less attractive such participation will be to some, if not many, private schools. Moreover, those private schools that do participate in voucher programs may wind up looking and acting a lot like traditional public schools. This may ensure some quality control and provide crucial protection to some students and teachers who might otherwise be excluded from private schools, but only at the cost of stealing some of the justification-namely, that private schools are different and diverse-for providing vouchers in the first place.

-James E. Ryan is a professor of law at the University of Virginia.

The road to my lawsuit, Locke v. Davey, began more than four years ago, when the state of Washington revoked my “Promise Scholarship.” The scholarship was available to students from low- and middle-income families who finished in the top 10 percent of their graduating classes and enrolled at a college in Washington State. Only in October of my freshman year at Northwest College did I learn that my decision to major in church ministry ran afoul of the state constitution’s ban on public support for religious instruction.

I believed that the state’s exclusion of theology majors from the Promise Scholarship program was wrong, both as a matter of constitutional law, which guarantees the free exercise of religion, and as a matter of social policy, which ought to promote freedom and equality and prevent religious discrimination. Accordingly, I decided to take a principled stand against what I considered a grave injustice. I kept my major, thus forfeiting my scholarship.

I soon contacted the American Center for Law and Justice, a public-interest law firm that specializes in religious liberties litigation. With their pro bono representation, I sued several Washington officials, among them Governor Gary Locke, arguing that the state’s exclusion of theology majors from the Promise Scholarship program violated my rights to free speech, free exercise of religion, and equal protection under the laws.

The scholarship money was never my primary motivation in the suit. At less than $3,000, the funds were a relatively small portion of the total cost of a college education. Much more important was my desire to fight injustice, to force the state to end its discrimination against theology majors, and to secure state aid for thousands of students like myself.

I was 19 then, largely ignorant of the law and without appreciation for the importance of the constitutional questions raised in my case. I certainly never imagined my case would be heard by the Supreme Court. As my legal drama unfolded, though, it began to have a profound impact on my own education and career goals. My focus shifted from the ministry to law. After graduating from college in 2003, I began my first year at Harvard Law School. To some, it might seem as if ministry and law could not be more removed from one another or even that it would be impossible to be both a good lawyer and a faithful Christian.

To me, nothing could be further from the truth. Indeed, the very same motivations that led me toward the ministry-a desire to live out my faith in a practical way, to help others, and to make a positive contribution to society-now lead me toward the law.

As it turned out, I did not attain my goals in filing suit; Washington and other states are free to bar theology majors from all forms of state financial aid as a result of the Supreme Court’s decision. The decision is a tremendous disappointment, on a personal level and because a great injustice has been done. Still, I have no regrets. Despite my loss, the fight for religious freedom and equal access to education will continue, and I am only strengthened in my resolve to further those goals.

-Joshua Davey is a rising second-year student at Harvard Law School.