The Supreme Court Gets School Funding Right

By Alfred Lindseth and 09/15/2009

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One sleeper in the flurry of decisions at the end of the last U.S. Supreme Court term has to be the decision in Horne v. Flores, a long-running Arizona case about funding special programs for English Language Learners (ELL).   In overturning lower court decisions calling for continued court-ordered school spending without regard to student outcomes, the Court may lead to a new era of more rational and effective court involvement in school funding policies.  Few people have yet to notice it, but it may be the final blow to the faltering movement to have courts actively involved in school appropriations.

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

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

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

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

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

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

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

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

Comment on this article
  • Marci Kanstoroom says:

    It looks like officials in DC have taken note of the Flores ruling:

  • George Mitchell says:

    In the spirit of sounding like a broken record, I note that this excellent post once again brings to mind the near-complete failure of the news media to report the evidence regarding growth in K-12 expenditures and the absence of any correlation with results. The voluminous material available at Ed Next and other reliable sources on this topic have not made a dent, in my opinion. Am I wrong? Is there any evidence that policymakers are catching on? I can name a number of elected officials who do get it, but their efforts are overwhelmed by the prevailing media template about schools be “underfunded.”

    What can be done to increase awareness of the facts?

  • Andrew Coulson says:


    You couldn’t be more right. While parts of the blogosphere picked up on a chart I posted recently showing the collapse in education productivity ( ), the education media were not remotely interested. Even the business/econ media have largely ignored this issue, but I think a much less concerted effort has been made to reach out to them. In their case, I think the problem is that they’re just not aware of the facts.

    So perhaps everyone aware of the astonishing productivity collapse in education of the past 40 years, and the pointlessness of spending more on the status quo system, should focus their efforts on business/econ journalists. Education reporters, in my experience, just aren’t interested.

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  • Arnold Hillman says:

    I know that this is an old article, but it still sounds like you. Do you honestly believe that the only reason there are court cases is more money. How about unequal distribution of funds to rural schools across the country? How about the dichotomous distribution of both real estate wealth and personal income. I know you believe that targeted funds are somewhat of any answer and there are some schools that have done miraculous things with “less.”
    Your continuing trumping of “money doesn’t matter,” is wearing thin. Let’s look at school districts of the same size in wealthy and poor places and see what kinds of outcomes you get, what materials they each have, programs, access to broadband, and so many other things. Where would you want your own children to go to school?

    Arnold (former member of AEFA and progenitor of the equity suit in PA PARSS v. Ridge decided by the Supreme Court in 1999 with one sentence- It is not a judiciable issue.

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