The Texas Constitution’s education clause requires the legislature “to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.” Relying on this meager textual material, school finance lawsuits have reached the Texas supreme court five times, with the last decision coming in 2005. Since then, enterprising attorneys have flooded the lower courts with four separate cases. One of them, Texas Taxpayer and Student Fairness Coalition v. Williams, has already been ruled on by a trial court judge and will almost certainly reach the supreme court. In this case, more than two-thirds of Texas’s 1,032 school districts joined in claiming once again that the state does not adequately fund education.

Following a similar script from cases in other states, the plaintiffs claimed that the state could not increase education standards without also increasing funding. This claim proved to be catnip for trial court judge John Dietz. In a meandering, near stream-of-consciousness statement delivered with his ruling, he talked about the wonders of education and how it is obvious that if the state wants higher standards it has to pay more, because “there is no free lunch.” Resolutely leaving no vapid cliché behind, he went on to expound, “It is a fact that the more educated we are, the greater our income will be. The greater our income as a state, the fewer citizens need public assistance. With greater income, the lower the crime rate.” How education can cure virtually every social ill while not being subject to diminishing marginal utility he doesn’t explain.

In Kansas, in response to a supreme court order, the legislature drastically increased funding in 2006, to no discernible educational effect. But as the economy declined, Kansas had to cut spending, and it included education in the cuts. This prompted a large coalition of school districts, which enroll more than 40 percent of the state’s students, to file suit in 2010 claiming that the decline in state revenue could not justify decreasing spending on education. In January 2013, a three-judge district court panel ruled in Gannon v. State that the legislature’s spending reductions were unconstitutional. As in Texas, the panel called upon weepy clichés. The state, it said, was “experimenting with our children” and depriving them of “opportunities” that “do not repeat themselves.” The panel enjoined the state from providing less than $4,492 in per-pupil aid. The import of this decision is that economic reality can have no effect on budgetary decisions. Presumably, even if Kansas’s total tax revenues were less than this amount, the judges would still demand that the legislature provide it.

In response to this ruling, the state appealed, and Kansas governor Sam Brownback successfully asked the state supreme court to order mediation between the state and the complaining school districts. If mediation fails, the supreme court will hear the case in October.

Most striking about both the Texas and Kansas cases are the broadly encompassing constituencies the plaintiffs represent. If students in two-thirds of the school districts in Texas and 40 percent of the students in Kansas are being deprived of an adequate education, then a political incentive would exist to save them from educational immiseration and protect school spending, even under adverse economic conditions. The histories of the Texas and Kansas supreme courts make us doubt they will resist the treacly rhetoric of the trial courts and return these questions to the legislatures and governors, where they belong. We expect rather that the cases will continue to shuffle abroad in state courts, like the ghoul in a late-night horror show that, in a different context, Justice Scalia said refused to die, even after being repeatedly killed and buried.

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 work are two doctrinal impulses pulling in opposite directions. Under Tinker v. Des Moines (1969), still the lodestar for school discipline cases, schools can punish student speech only if it will cause a substantial disruption or violate the rights of others. But the trend of federal courts since the 1980s has been to give school officials more authority in judging what would cause a substantial disruption, as well as allowing them to punish and censor vulgar speech, school-sponsored speech, and pro-drug speech. The obvious question is whether schools can punish off-campus speech that they believe can cause an on-campus disruption. Students have always said unflattering things about teachers and classmates, but, prior to the Internet, for such speech to reach enough people to cause a significant disruption it had to be uttered on campus or brought there. With the Internet, entire student bodies, if not the whole world, can receive slanderous gossip or obscene speech without anyone setting foot on campus.

So far schools have punished students for, among other things, tweeting vulgarities on a school-provided laptop, creating fake Myspace pages that imply their principals are drunk and have hit on students and their parents, and for using a personal blog to encourage fellow students to call school officials “douchebags” for canceling a “jamfest.” In the Myspace cases, appellate courts held that the fake pages did not create a substantial disruption and thus couldn’t be punished. But in the jamfest case, the appellate court held that the student could be punished, since she was a member of student government and her blog post was “potentially disruptive to student government functions.” And in the case of a student who had used a Myspace profile to mock another girl as a slut who had herpes, the Fourth Circuit upheld the school’s decision to suspend the student for violating a policy against harassment and bullying.

In the absence of clear guidance from the Supreme Court, state legislatures have been acting. North Carolina, a leader, passed a cyberbullying law in 2012 that makes it a misdemeanor for students to post anything online “with the intent to intimidate or torment a school employee.” Critics of the law immediately objected that the legislation does not define what it means to intimidate or torment. Could, for instance, students be punished for complaining about a grade on Facebook if a teacher interpreted it as an attempt to intimidate? The law’s vagueness invites a legal challenge. But perhaps most troubling to the law’s critics, the statute could sanction students for posting factually correct information. For example, the law forbids posting “sexual information” about a school employee, so students could be punished for accurately reporting an affair between two teachers.

Defenders of the law point to examples of students slandering school employees. One student, upset over her schedule, claimed on Facebook that an instructor with responsibility for ROTC groped her during a uniform fitting. She recanted after the schedule was changed. But it is arguable that school employees have adequate recourse under existing law. Slander is not constitutionally protected, so why couldn’t civil suits suffice for punishing malicious personal attacks? Or consider threats against teachers. True threats are also unprotected and subject to civil and criminal punishments. If a student’s speech were sufficiently intimidating or tormenting, then it would probably be subject to legal action.

While the Supreme Court has expressed a desire to avoid being a national school board, the legacy of its own jurisprudence will make it hard to avoid forever deciding the scope of school officials’ authority and students’ rights in this new and growing family of cases.

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.

In eastern North Carolina under Edwards v. Greenville City Board of Education, the Pitt County District has officially been under court supervision since the 1960s. However, in 1972 the federal district court removed the case from its active docket, subject to being reopened should a motion be filed to warrant it. For the next 34 years, there was no such motion. But the case groaned back to life in 2006 when a group organized as the Greenville Parents Association filed a complaint with the Office for Civil Rights objecting to the district’s use of race in student assignments. As part of their attack, the parents also asked the district court to declare the district unitary and dismiss the case.

In 2009, after court-mandated mediation, the parents and school board reached a settlement. The board agreed to consult with the parents on its future assignment plans and the parents agreed to withdraw their motion for unitary status. As well, the court ordered the school district to submit a report by 2012 detailing progress toward achieving unitary status so it could “relinquish jurisdiction” and “return full responsibility” over the district’s schools to the school board.

In 2010, the school board, in consultation with the parents, adopted a new attendance policy that emphasized several factors but most importantly students’ proximity to their school and student achievement. Instead of racial diversity, the goal was diversity of achievement. Nevertheless, one of the elementary schools it produced was largely minority and low-achieving, which angered another group of parents, the Pitt County Coalition for Educating Black Children. In 2011, this group asked the court to overturn the board’s new attendance policy on the grounds that it moved the district further from unitary status.

The court denied the request, but on appeal a Fourth Circuit panel overturned the district court in 2012, arguing that under Supreme Court doctrine any racial disparities in the district are still presumptively caused by prior discrimination. The court remanded the case back to the district court.

Louisiana has presented a more ironic case. There, in 2012 a public school–choice policy prescribed by No Child Left Behind (NCLB) fell afoul of the inherited judicial law of desegregation. To comply with NCLB, the Richland Parish School Board notified parents that the Rayville Elementary School was failing, but on the advice of its legal counsel it prohibited Rayville’s white students from transferring to certain other schools because of provisions “in the federal Richland Parish School desegregation case.” This referred to a decision of the Fifth Circuit in 1968, in a consolidated case involving dozens of school districts, that purported to prevent white students from making transfers under freedom-of-choice plans if the result would be to create “all Negro” schools.

If the Richland Parish case haunted the choice provisions of NCLB, it is likely to haunt as well a new statewide voucher program that Louisiana has launched for low-income students who attend underperforming schools. Will white students in schools covered by the court order be able to take full advantage of the vouchers?

Even though we are far beyond the wrenching upheaval of forced busing during the 1970s, the antagonisms of desegregation linger. School districts and courts would be wise to take steps to officially close cases that are decades old but which frustrate the resolution of current disputes when their long-dormant wounds are reopened.

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.

Even if the states are, in the theory of federalism, separate and sovereign entities, they have never enjoyed much encouragement from the Supreme Court to resist grant-in-aid conditions through litigation. In its few rulings on the subject, the Court has refused to draw a line on where coercion might lie, and concluded that states were not coerced into cooperating but acted voluntarily in response to financial inducements.

Still without defining a line, the Court ruled 7 to 2 in late June that the Medicaid provisions of the Affordable Care Act impermissibly crossed it. Wherever the line might be, the Affordable Care Act was “surely beyond it.” Without invalidating the Medicaid provisions, the Court ruled that the states could choose whether to embrace them.

Chief Justice John G. Roberts wrote that the act was a “gun to the head” of the states, an act of “economic dragooning.” By threatening the states with the loss of all of their Medicaid grants unless they agreed to a major expansion of Medicaid that would cover the health-care needs of the entire nonelderly population with incomes below 133 percent of the federal poverty level, the act compelled them to accept not a mere revision of Medicaid but an entirely new program. The financial stakes were large. Medicaid spending accounts for more than 20 percent of the average state’s total budget, with federal grants covering from 50 to 83 percent of what the state spends. Federal grants would increase with the new program and cover 100 percent of the added cost through 2016, but would gradually decrease thereafter to a minimum of 90 percent.

It was the size of the stakes that enabled the Court to distinguish Sebelius from South Dakota v. Dole (1987), a grant-in-aid case in which it had sided with Congress. Under scrutiny then was a federal law that threatened to withhold 5 percent of a state’s highway grant if the state did not raise its drinking age to 21. The funds at issue constituted less than half of 1 percent of South Dakota’s budget. The Court concluded that the new condition was not “so coercive as to pass the point” at which pressure turns into compulsion.

The Court’s new ruling has the potential to change the intergovernmental balance of power in all grant-in-aid programs, including those in education. But will it? In the health-care case, it immediately became clear that with freedom comes a heavy political and economic burden of choosing. Chief Justice Roberts wrote that if the states are to be separate and independent sovereigns, as the Court posited, “Sometimes they have to act like it.” But in the real world of politics and policy, they are rational actors, calculating the costs and benefits of federal grant laws. If history is a guide, they weigh the benefits of federal money heavily and hope the costs of the conditions can be avoided or adequately compensated for by political support from constituencies within the state.

In the field of education, states and their local school districts have in recent years chafed under the burdens of No Child Left Behind (NCLB). If Roberts’s decision had already been rendered, perhaps at the time of enactment or in later negotiations with the Department of Education (ED), the states would have been in a stronger position. Members of Congress and ED officials might have paused longer to ask if there were limits to what they could get away with.

The Court’s ruling invites states to sue. Emboldened by it, perhaps many will, with results that are hard to anticipate. But we believe that their first line of defense in grant programs will remain political, not legal and constitutional, and history says it is not very strong. One of the reasons NCLB passed so easily was that it promised more money to the states.

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.

While Title IX makes no mention of athletics and was hardly noticed during congressional debates, this provision of the Education Amendments of 1972 has become most famous, and controversial, for the effect it has had on athletic opportunities for females. The Office for Civil Rights (OCR) in 1979 created a three-pronged test to determine compliance with the law. Schools receiving federal financial assistance could prove their compliance by 1) providing athletic opportunities for both sexes in numbers substantially proportionate to their numbers in the student body, or 2) showing a history of increasing opportunities for the underrepresented sex, or 3) demonstrating that the interests and abilities of the underrepresented sex have been fully accommodated. Most schools have focused on complying with the first prong since it provides a clear standard that they can meet. But over time, the OCR regulations have been elaborated to address many aspects of equal treatment, including scheduling of games and practice times.

Initially filed in 2009, the parents’ claim hinged on the fact that nearly 95 percent of the boys’ basketball games were scheduled for Friday or Saturday nights, while 47 percent of the girls’ games were scheduled for Mondays through Thursdays. According to the plaintiffs, this resulted in smaller crowds for the girls, caused greater difficulties for students to finish homework, and created feelings of inferiority. The school district responded that its athletic director, Beth Foster, had tried to schedule more girls’ games in prime time but could not because she “can’t get anybody to come play us on those nights.” The school district asked for a summary judgment, which the district court granted, saying that the disparity in scheduling was not significant enough to have denied girls’ teams equal athletic opportunities.

On appeal, however, a Seventh Circuit panel reinstated the parents’ lawsuit and said that case should go to trial. The court held that the possible harms caused by disparate scheduling “are not insignificant and may have the effect of discouraging girls from participating in sports.” Of particular concern to the court was the possibility that the disparate scheduling could create feelings of inferiority. The court started its decision with the image of a typical Indiana Friday-night game: “A packed gymnasium, cheer-leaders rallying the fans, the crowd on their feet supporting their team, and the pep band playing the school song.” Without similar support from the community, the court speculated that “girls might be less interested in joining the basketball team because of a lack of school and community support, which results in the perception that the girls’ team is inferior and less deserving than the boys’.” As a result, girls might feel like they are “second-class.”

Whatever the precise outcome of the case after a trial, we hope that judges will forgo psychological speculation. With their presumption that girls were at risk of being made to feel inferior, the appellate judges seemed to be very close to announcing a right to have large crowds cheering them on. But courts cannot compel attendance, much less vociferous cheering and players’ consequent gratification, at high school basketball games, whatever the gender of the players. If lack of fan support can make a female athlete feel second-class, what if the school schedules more girls’ games in prime time and the fans still don’t come? Or don’t come in the same numbers they do for boys’ games? One glance at the Nielsen ratings for women’s and men’s NCAA tournaments would suggest that this could occur.

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.

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.

In the first round, the state supreme court in 2004 struck down a statewide voucher program enacted by the legislature for the benefit of students in low-performing districts. The plaintiffs alleged, and the court narrowly concurred, that the program violated a provision of the state constitution that school boards “shall have control of instruction in the public schools of their respective districts.” The court held that to require school districts to turn over some locally raised money to private schools, as the law did, offended that provision.

This seemed to suggest that a program adopted by a local school board might survive, and a test recently emerged. Suburban areas with high-performing school districts have shown little support for vouchers, so it was surprising to have the first locally enacted voucher program come from Douglas County, a Denver suburb with one of the highest median incomes in the country. School choice advocates, however, had targeted the district in school board elections. As a result, the normally nonpartisan elections turned partisan in 2009, when the Republican Party endorsed a slate of four candidates and handily defeated candidates endorsed by the teachers union.

Those efforts bore fruit in March 2011 when Douglas County’s school board unanimously approved the Pilot Choice Scholarship Program. Through this plan, any student who had been enrolled in district schools for at least one year could apply for a voucher of approximately $4,600, equal to 75 percent of state per-pupil funding, to attend a “partner” private school, with the school district keeping the other 25 percent. Religious schools would not have to waive admission requirements to participate, but would have to offer an exemption for voucher students who wished to be excused from religious services. Of the 19 initial partner schools, 14 were sectarian. The school board capped the program at 500 students but expected it to expand. As the third-largest district in the state, Douglas County serves more than 61,000 students.

The American Civil Liberties Union (ACLU), along with Americans United for Separation of Church and State, sued, citing a host of constitutional offenses, including violating the ban on support for private schools and churches (the state’s Blaine Amendment), the ban on religious tests, the guarantee of religious freedom, the uniformity requirement in the education clause, the prohibition on support for private institutions, and, for good measure, the guarantee of local control. After a three-day hearing in August, state district court judge Michael Martinez granted the ACLU’s request for a permanent injunction. Clearly alarmed by the religious instruction that would occur at religious schools—“not only is the risk of religion intruding into the secular educational function great, that risk is inevitable and unavoidable due to the very structure of the Scholarship Program”—Judge Martinez accepted nearly all of the ACLU’s claims.

Voucher supporters lined up to assist Douglas County in defending the program. The Daniels Fund, a well-regarded and influential foundation in the Rocky Mountain region, pledged $530,000 for legal expenses. In addition, the libertarian Institute for Justice filed an appeal on behalf of several families whose children were granted vouchers.

While the ACLU obviously has a grab bag of provisions at its disposal going forward, one risk is its reliance on the state Blaine Amendment. If state courts rule that the amendment requires that religious students and institutions be treated differently than secular ones, as Martinez’s ruling seems to imply, it could potentially raise a federal challenge under both the First and Fourteenth Amendments as a violation of free exercise and equal protection. The most promising outcome for Douglas County would be for Mickey Mouse to meet the U.S. Constitution.

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.

New Jersey’s supreme court in May restored $500 million in added spending for the state’s poor, urban schools, known as the “Abbott districts” (31 out of 591 districts in total), which particularly benefit from nearly 40 years of its constitutional rulings. Otherwise, a divided court left intact school spending cuts in the budget of Republican governor Chris Christie, an outspoken critic of the court, who promised to abide by its decision.

In deciding how to rule, New Jersey’s court was guided by earlier decisions on behalf of the Abbott districts, stating, “Like anyone else, the State is not free to walk away from judicial orders enforcing constitutional obligations.” We are guessing that other courts that receive petitions asking for restoration of funds will attempt a similar approach and will seek to defend positions staked out on grounds of equity or adequacy, but will avoid picking fresh fights with governors and legislatures if they can.

Budget cutting has precipitated another issue: the pension rights of public employees, among whom are this country’s heavily unionized teachers.

In June, the Florida Education Association (FEA), the state’s teachers union, filed suit in a circuit court in Tallahassee against the governor and other officials on behalf of the more than 550,000 state employees, among them 140,000 FEA members, who participate in the Florida Retirement System (FRS), charging that changes in the system made by a Republican legislature violated Florida’s constitution in three ways: They impaired the employees’ contract with the state, took private property without compensation, and impaired the employees’ right to bargain collectively.

Participation in the FRS is mandatory for state employees. Underlying the union’s complaint were revisions that would take effect on July 1, 2011. Although the FRS was created in 1970 as a contributory system, it had been noncontributory since 1974. The legislature now returned to a contributory plan under which 3 percent of a member’s pay would be deducted monthly and credited to an account with the FRS. A second change addressed provisions for cost-of-living adjustments following retirement. Under the plan of 1974, retirees were to receive an annual cost-of-living increase of 3 percent without regard to the number of years of credited service or when the service had occurred. Under the revised plan, the 3 percent adjustment would be subject to a fractional reduction for years of service after July 1, 2011. The union’s petition objected that these changes had been made unilaterally rather than having been the subject of collective bargaining. It asked for temporary and permanent injunctions, and that the funds at issue be segregated and placed in an interest-bearing account until the lawsuit was settled.

“This pay cut was used by legislative leadership to make up a budget shortfall on the backs of teachers, law enforcement officers, firefighters, and other state workers,” FEA president Andy Ford said. “It is essentially an income tax levied only on workers belonging to the Florida Retirement System,” he added, apparently hoping to cast as hypocritical Republicans who are opposed to tax increases.

Florida is one of only five states with a constitutional protection for collective bargaining rights, though the language is strangely ambiguous. Without specifically granting the right, the law guarantees against its abridgement. This invites discretion from a supreme court that has a pro-union past but today is composed of a narrow majority of Republican appointees.

More or less simultaneously with the filing of Florida’s suit, state district judges in Minnesota and Colorado threw out public employees’ suits against governments that had reduced cost-of-living adjustments to their pensions, ruling that they were not contractually protected. The Florida plaintiffs, citing both statutes and the constitution, assert such protection. The state, citing past supreme court decisions in support of its position, asserts that the FRS is entirely prospective and must allow for modification of future benefits by the legislature.

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.

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.

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.

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.

In February 2010, for the first time, a state judge overturned a school district’s choice of a high-school math curriculum. In May 2009, the Seattle school board in a 4–3 vote adopted the “Discovering” math curriculum. The Discovering series, which the Seattle district already used in elementary and middle schools, allegedly allows students to learn math principles on their own through “inquiry-based learning.” The texts and methods discourage “direct” instruction in which teachers teach students the best method for solving problems. Instead, students “discover” mathematical principles on their own through “cooperative learning groups” and by playing with objects. Students, no doubt to their delight, also begin using calculators early in elementary school as part of the series’ emphasis on using “technology to build conceptual mastery.”

When considering the curriculum, the board received conflicting evidence about the effectiveness of the Discovering series. The Washington State Office of Public Instruction ranked the series second out of four competing curricula, while a report from the Washington State Board of Education called the series “mathematically unsound.” The board also heard criticism from parents and expert reports about the series.

In response to the board’s decision, three plaintiffs—a retired high-school math teacher, a professor of atmospheric science at the University of Washington, and a mother of a high-school student—filed suit, calling the Discovering series deficient and dumbed down. The plaintiffs argued that the curriculum would widen rather than narrow Seattle’s achievement gap between minority and white children. One of the plaintiffs, Professor Cliff Mass, wrote in his blog, “Seattle Public Schools picked high school math books that are not only bad for everyone, but they are PARTICULARLY bad for the disadvantaged who don’t have extra cash for tutoring or whose parents don’t have the time or backgrounds to help their kids.”

In February 2010, Judge Julie Spector agreed with the plaintiffs in a terse three-page opinion devoid of any analysis. She simply asserted that the district behaved arbitrarily and capriciously and that there was “insufficient evidence for any reasonable member of the board to approve the selection of the Discovering Series.” The decision surprised both plaintiffs and the Washington education community. During the litigation, the plaintiffs’ attorney, Keith Scully, said winning seemed unlikely since “no judge wants to second guess the school board.” After the decision, the executive director of the state board of education, Edie Harding, said the decision was a “surprise” and that in Washington “the local board is always the prime decision-maker on curriculum.” Likewise, David Stolier, an assistant state attorney general, said that “the courts ought not to be making decisions about curriculum,” noting the state supreme court had ruled “it’s not the role of courts to be micromanaging education.”

There might be very good reasons to reject the curriculum. One can easily understand why parents wouldn’t want to expose their children to the faddish ideas afflicting the Discovering series. But there should be no mistaking what happened. The judge substituted her educational judgment for that of the school board, and didn’t bother to give an explanation. Her ruling then was far more arbitrary and capricious than the school board’s decision, even if it might have salutary effects.

The dispute in Seattle is a small, but significant, skirmish, in a growing debate over the lucrative and controversial textbook market. The Seattle school district is appealing Judge Spector’s decision. Parents have filed a lawsuit against the wealthy Issaquah school district since its adoption of the Discovering series; the similarly wealthy Bellevue school district is also facing a possible lawsuit. No doubt other concerned parents around the country will be following Washington’s lead. Prior to the Seattle case there appears to have been only one unsuccessful Plano, Texas, lawsuit over a math curriculum.

Supporters of the Discovering series, including its publisher, are not immune to the temptations of litigation. When the Washington State superintendent of public instruction, Randy Dorn, dropped the Discovering series from the recommended list of textbooks, Key Curriculum Press, the publisher of the Discovering series, unsuccessfully sued the state claiming, naturally, that his decision was arbitrary and capricious.

Regardless of the efficacy of “direct instruction” or “inquiry-based learning,” such pedagogical disputes are beyond the courts’ proper constitutional role and institutional capacity.

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

Charter schools are created under state statutes, but they often retain a private character. Can they qualify as “state actors” for a plaintiff’s purpose of using Section 1983 of Title 42 of the U. S. Code, which is the main gateway for achieving relief? In the case from Arizona that the Ninth Circuit decided, the answer was no, and the claims of the plaintiff were dismissed.

The plaintiff, Michael Caviness, had been employed for six years as a teacher of health and physical education and a track coach at Horizon Community Learning Center, a nonprofit corporation that operated a charter school in Phoenix. A female student filed a grievance charging that he had crossed “the student-teacher boundary.” At a hearing, Horizon’s governing board learned that the student had a “crush” on Caviness and that the two had been communicating by telephone. The board concluded that he had exercised questionable judgment and kept him on paid administrative leave until his contract expired. When he applied for a job in the Mesa Public Schools, Horizon’s executive director declined to evaluate him, and Caviness claimed that what the director said to Mesa was “purposely false and incomplete” and intended to harm him. He further claimed that some Horizon employees had defamed him by falsely calling him a pedophile.

Caviness filed a complaint under Section 1983 alleging that Horizon had, without due process, deprived him of his liberty interest in finding work, in that it had not granted him a hearing to clear his name. To establish that the school was a “state actor,” he made five arguments: that Arizona law defines a charter school as a public school; that a charter school is a state actor for all purposes, including employment; that a charter school provides a public education, a function that is traditionally and exclusively the prerogative of the state; that a charter school is a state actor in Arizona because the state regulates the personnel matters of such schools; and that it is a state actor because charter schools, unlike traditional private schools, are permitted to participate in the state’s retirement system.

The district court granted Horizon’s petition for dismissal for lack of federal jurisdiction. It found no evidence “with respect to [Caviness’s] specific employment claims, that Horizon acted in concert or conspired with state actors, was subject to government coercion or encouragement, or was otherwise entwined or controlled by an agency of the State.”

Three circuit judges concurred that the actions that Horizon took or failed to take were all connected with its role as Caviness’s employer, and that what it did as such did not constitute “state action.” State action, it said, “may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.”

Caviness failed because he did not establish the close nexus. It was not enough to argue that under Arizona law all charter schools are state actors. Without facts to show that Horizon was acting as “the government,” Caviness had no federal case.

While the Caviness case could be a harbinger of more cases to come, we would be surprised to see federal litigation lead to a broad characterization of charters as private actors. Charters will likely increase in both number and federal financial support under President Obama, and with federal aid comes the force of laws emphasizing charter schools’ public character. Charters are explicitly obliged to abide by federal statutes prohibiting discrimination, for example. And while no federal law applies, the Department of Education’s guidance has made clear that charter schools must be nonreligious as well. Balking at either constraint would put charters at risk of losing not only federal aid but also their status as public schools, which has been critical to the charter movement’s success.

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.

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.

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.

While the participants were familiar, the challenges were in other respects unusual. Two of the cases involved programs offering tax credits for donations to scholarship funds, which have elsewhere avoided legal challenge since a favorable ruling from the Arizona Supreme Court in 1999. Equally uncharacteristic was litigation involving voucher programs for students with special needs and those in foster care. Politically popular and seemingly consistent with the practice of private placement under the federal Individuals with Disabilities Education Act, special-education voucher programs in Florida, Georgia, Ohio, and Utah have not faced court challenge.

The longest-running of the cases, filed in federal court in 2000, alleged that Arizona’s individual tax-credit program violates the establishment clause of the U.S. Constitution by permitting organizations to provide scholarships to students that can be used only at religious schools. This, plaintiffs argued, means that participating parents lack “true private choice” as defined by Zelman. Defendants responded that the program offers choice to both taxpayers claiming the credit and parents accepting scholarships, thus achieving “a double attenuation separating the state and religion.” They also asserted that the program must be evaluated in light of the full range of choices available to Arizona parents, including interdistrict transfers and ample charter schools.

A Ninth Circuit panel that included the famously liberal Stephen Reinhardt sided with the plaintiffs. While it did not deem scholarship tax credits generally unconstitutional, the decision, if not overturned on appeal, will prevent religious organizations from participating in similar initiatives nationwide—including a parallel program for corporate donations upheld by an Arizona appellate court just weeks earlier.

The irony in the Ninth Circuit outcome is that the tax-credit mechanism, which Arizona adopted in order to avoid legal challenges, created a new pitfall; there is little doubt that a program that offered vouchers directly to parents instead would now be acceptable as a matter of federal law. Still, the value of tax-credit programs in states with strong constitutional prohibitions on aid to religious schools was confirmed by the near-simultaneous invalidation of Arizona’s new voucher programs.

The Arizona Supreme Court ruled in Cain v. Horne that voucher programs violate the aid clause of the Arizona Constitution, which states, “No tax shall be laid or appropriation of public money made in aid of any…private or sectarian school.” The court rejected the notion that vouchers aid students rather than schools, arguing that such an interpretation “would nullify the Aid Clause’s clear prohibition.” It thus ignored the state’s argument that the clause would still ban grants to private schools for such purposes as teacher salaries even if the complaint were dismissed.

The court also failed to distinguish the programs from other Arizona policies through which beneficiaries use public funds to attend private and religious schools. Foster children, for example, become eligible at the age of 16 for grants of $5,000 to be used at the college of their choice. And more than 1,000 special-education students annually are educated in private settings at public expense because their school districts could not meet their needs. If government officials, whose behavior the constitution is clearly intended to constrain, are able to make this choice, it is hard to see why parents should not also be able to do so.

Seven years after Zelman, court challenges continue to shape the pace and trajectory of choice-based reform in Arizona and elsewhere. The constantly evolving nature of the complaints suggests that opponents’ objections are politically—not legally—motivated. It is unfortunate that they are succeeding in getting the courts to revisit policy decisions made by more representative bodies.

Martin R. West is assistant professor of education at the Harvard Graduate School of Education and an executive editor of Education Next.

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.

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.

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.

We surmise that the different outcomes turned less on differences in constitutional language than on political differences between the courts. Florida’s court has a Democratic majority, whereas Ohio’s contained only one Democrat—a lame duck who protested that the charter law produces “a hodgepodge of uncommon schools financed by the state.” One Ohio Republican wrote separately in dissent, and another dissented on procedural grounds, objecting that the trial judge had erred in bifurcating the suit into constitutional issues and others that alleged statutory violations in particular schools. The court decided only the constitutional questions.

Popularity may also have buttressed Ohio’s charter program. Ohio has more than 300 charter schools, with 72,000 students. Five of the biggest cities—Cleveland, Cincinnati, Dayton, Toledo, and Youngstown—have charter enrollments of 16 to 28 percent of the student population, putting them among the top ranks of the country’s charter-school cities. The voucher program that was invalidated in Florida enrolled barely 700 students. A second voucher program—Florida’s McKay program for disabled students—is less vulnerable to attack because it is much bigger (17,000 students).

Rather than proceed with the second half of the suit, which rested on claims that charter schools had failed to comply with statutes and sponsorship contracts, their opponents withdrew it in December and instead appealed for regulatory help from a newly-elected Democratic governor and a legislature whose Republican majority had been reduced.

Litigation will continue nonetheless, because Ohio’ the charter school law increases local districts’ reliance on the local property tax, which increases inequalities in school funding, which leads to violation of the equal protection clause of the Fourteenth Amendment. This argument is a modified reprise of the argument in the state.

State aid in Ohio depends on enrollments. Any student who is schooled elsewhere—at home, in a private school, in a charter school—“deprives” the local district of aid, but with charter enrollment the aid follows the student to the charter school. Plaintiffs claimed that this particular diversion of funds deprives school districts, poor urban ones especially, of the ability to provide a “thorough and efficient educational system.” Though rejected by the majority, this argument resonated with a liberal Republican on the court, Paul Pfeifer. While conceding that the Ohio constitution does not prohibit charter schools, he cited the court’s previous rulings in DeRolph v. State, Ohio’s adequacy lawsuit, holding that the constitution does prohibit “excessive reliance on locally raised funds to finance public schools.”

In Ohio, the long-running DeRolph suit is closed to further litigation, and in their federal suit, the unions will be going headlong against San Antonio School District v. Rodriguez (1973), in which the Supreme Court declined to invalidate educational inequalities resulting from reliance on the local property tax. Thus, the unions face the challenge of overturning more than 30 years of settled precedent before courts that are increasingly hesitant to tackle large-scale institutional reform.

Nonetheless, finding some way to overturn Rodriguez is a gleam in the collective eye of all those litigants who want to use courts both to increase school spending and to equalize it within states and even nationally. This is a liberal project for the long run, nurtured in state-level adequacy lawsuits and law school seminars. Project proponents can take comfort in the way Judge Pfeifer cast his dissent.

Josh Dunn is professor at the University of Colorado–Colorado Springs. Martha Derthick is professor emeritus at the University of Virginia.

One proposal comes from the Education Trust, which has a 17-year track record of commitment to school reform.The Ed Trust proposes that parents of children in Title I schools, those that have a disadvantaged population and are the main recipients of federal funds, be vested with a private right of action “to enforce their rights under the law.” The rights that the Trust names are of two kinds. One is for access to data on funding patterns, teacher distributions, and high school graduation rates. The other is for participation in school-level decisions about allocation of supplemental educational services funds, for example, whether to use them for tutoring or expanded in-school instruction.

If the Ed Trust proposal imprudently invites lawsuits from aggrieved parents on a few specific topics, it appears quite restrained when compared to the superhighway to the courtroom concocted by the No Child Left Behind Commission, which offers an unlimited array of statutory language to an unlimited universe of potential litigants. Sponsored by the Aspen Institute, a think tank with global aspirations, the 15-member commission was co-chaired by two former governors, Tommy G. Thompson of Wisconsin and Roy E. Barnes of Georgia, and included the law dean at the University of California at Berkeley, Christopher Edley, who is a leading advocate of private rights of action in education.

In contrast to the Education Trust’s willingness to call a spade a spade and specify its use, the commission proposal is a Pandora’s box wrapped in a euphemism and tied with red tape. Rather than a private right of action, it speaks of “enhanced enforcement options” for parents and “other concerned parties.” Plaintiffs could sue “to enforce the law,” namely NCLB, which is a statute of immense scope and complexity, laden with problematic and sharply contested features, not likely to become simpler in revision.

However, the aggrieved parties would not get to court immediately. There are a lot of bureaucratic stops on the Aspen superhighway. The commission proposal would require states to define procedures by which complainants would bring grievances against local districts or the state itself to a state agency. If the state rejected a complaint, the complaining party could appeal to the U.S. Department of Education (ED), which would be empowered to select the “complaints worthy of response or needing clarifying rulings.” The ED could order a state to respond, but if the department elected not to hear an appeal, the complainant could file suit in state court, an odd approach for a federal law to take, given that in our federal system the United States does not define the jurisdiction of state courts.

Edley has complained, according to the San Francisco Chronicle (February 14, 2007), that parents and the public cannot get in the courthouse door to argue that officials are failing to live up to the obligations of education statutes: “If the state fails to enforce environmental regulations against a polluter, members of the public can not only go to the ballot box, they can also go to court. That’s true in countless areas, and it ought to be true in education.”

But the fact is that for decades litigants have been marching through the courthouse door to influence what happens in schools. They did so to achieve racial desegregation. They do so today for countless purposes, typically to claim a right to free and edgy speech on T-shirts or banners under the First Amendment, to assert rights to education of the handicapped under the federal Individuals with Disabilities Education Act, and to ask for more school spending under state constitutional provisions that are said to guarantee an equitable or an adequate education.

Attaching private rights of action to NCLB would not open the courthouse door for the first time, but would open it much wider.

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.

One case before the Court is from Seattle, which has a policy of open choice for high-school attendance and uses race, along with other factors, as a tiebreaker when demand exceeds the number of spaces available. The goal of the policy is to assure that no school deviates by more than 15 percent from the district’s overall racial composition, which is 60 percent minority (African American, Asian, and Hispanic).

The other case is from Jefferson County, Kentucky, which includes Louisville. There the school board tries to keep black enrollment in most schools in the range of 15 to 50 percent by encouraging or compelling white students to attend schools in black neighborhoods and vice versa. The district, which has a black enrollment of approximately 36 percent, is unusual in that it includes suburbs as well as the central city. Its ambitious policy was framed, unlike Seattle’s, against a background of judicially mandated integration. Both suits were brought by white parents whose children failed to get into the school they sought.

To survive, racial preference policies must pass “strict scrutiny,” the Court’s most exacting level of analysis. Racial classifications are “inherently suspect” and thus must be narrowly tailored, serve a legitimate governmental interest, and use the least restrictive means possible. Federal circuit courts upheld both of the challenged plans.

Liberals fear and conservatives hope that the reconstituted court of Chief Justice John G. Roberts will rule against racial preferences. In a different context, Roberts has already shown an aversion to racial classification. In a voting rights case from Texas, he wrote, “It is a sordid business, this divvying us up by race.” Samuel Alito is widely expected to be more skeptical of racial classification than the justice whom he replaced, Sandra Day O’Connor. She was the swing vote and wrote the opinion in Grutter v. Bollinger (2003), in which the Court upheld narrowly tailored affirmative action in higher education. Even if the Court should reject affirmative action, that would not invalidate existing lawsuits that are based on claims of unconstitutional racial segregation. Federal judicial decrees that mandate integration remain in effect in approximately 300 districts, enforced by the Justice Department’s Civil Rights Division and the issuing courts. These are only the desegregation cases to which the United States is a party. When we queried the Department of Justice, we were told that it would be hard to determine the total number of active desegregation cases.

American parents like to choose where their children go to school. Those who are able have ordinarily done this by selecting their residence, given the long tradition of geographically defined districts and limited opportunity to cross district boundaries. But choices are multiplying. All states but Alabama, Maryland, North Carolina, and Virginia have open enrollment laws that offer varying degrees of intra- and interdistrict choice. The No Child Left Behind Act requires districts to offer choice to children in schools found to be failing. Magnet schools, charter schools, and vouchers have proliferated. Underlying the affirmative action cases is the question: to what extent should the widening scope for choice be regulated on racial grounds?

If the Court rules against affirmative action, the local districts that practice it will be compelled to search for race-neutral methods of pupil assignment. This may mean a return to geographic districts, with results that will depend on residential patterns and the politics of line drawing in particular cities. Insofar as school boards offer choice, which we would expect to be a popular position for them to take, a race-blind lottery could be a fair, practical, and constitutionally acceptable way to allocate spaces in oversubscribed schools.

Josh Dunn is assistant professor, the University of Colorado–Colorado Springs. Martha Derthick is professor emeritus, the University of Virginia

Below the high court, however, was a veritable ant farm of judicial activity concerning our schools. This legal trench warfare involves critical issues that may give Chief Justice John Roberts plenty to do for years to come. Most of the action centered on the unsexy but significant question of the allocation of authority in education policymaking. A growing number of nasty fights between and among federal, state, and local officials about how to manage education resources emerged, and include two notable cases: Pontiac v. Spellings and Connecticut v. Spellings.

These cases, and much other intergovernmental jockeying, derive from resentment generated by No Child Left Behind (NCLB). The historic law dramatically increased the federal government’s influence in K–12 education policy, and hostility toward the law has been percolating for some time. The transition from hostility to federal education policy to formal litigation should surprise no one.

What was not anticipated, however, was the federal law’s influence on litigation concerning the adequacy of school financing. Thus the National Education Association and the several public-school districts in Michigan that sued the Department of Education last April in Pontiac v. Spellings, asserted that NCLB is an unfunded mandate and, for relief, sought the ability to use federal education funds as they saw fit. Similarly, last August the state of Connecticut sued the federal government (Connecticut v. Spellings) on the grounds of unfunded mandate and for perceived “inflexibility” regarding the state’s numerous NCLB waiver applications.

Though both lawsuits will probably fail in the courts (see “NEA Sues over NCLB,” legal beat, Fall 2005), they are already having a political effect on the way that education funds are obtained and distributed. And they may already be more effective in diluting NCLB requirements than an army of Capitol Hill lobbyists has been. In an effort to buy some political peace, or perhaps in response to the litigation, Education Secretary Margaret Spellings recently announced additional “flex­ibility” and a “common-sense” approach for states’ regulatory compliance with NCLB. It is too early to tell whether the DOE’s modified approach will fuel even more state foot dragging, but the winds of compromise are blowing.

It will also be worth watching how NCLB affects other litigation concerning school finance. Although state and local district feuds over school funding persist, these disagreements are increasingly cast in a way to implicate the 2002 federal law. The Supreme Court’s Rodriguez decision in 1973 may have insulated the federal government from any direct constitutional liability flowing from per-pupil spending gaps within a state, but many school-finance activists view NCLB as creating a federal statutory avenue for helping to transform failure in the classroom into success in the courtroom. Any legal success, however, comes out of state coffers, not the U.S. Treasury. The dynamic of a federal law’s generating increased financial exposure for state lawmakers helps explain why some states, such as Louisiana, Colorado, and Connecticut, are lowering student achievement standards —and taking proactive measures in court.

Viewed in isolation, these issues—NCLB litigation, the U.S. Department of Education’s tinkering with NCLB compliance, and school-finance litigation—may not suggest anything out of the ordinary. Viewed collectively, however, the thread that binds all three is NCLB and, more important, how the act restructures K–12 education federalism. Fights over K–12 policymaking now loom even larger on the horizon and increasingly threaten to exacerbate an already litigious education culture. Roberts, long thought to be a states’ rights advocate, may be forced to rethink such matters.

-Michael Heise is professor of law, Cornell Law School.