10 states, with another 4 more having recently wrapped up litigation, currently face lawsuits regarding increased funding for education. This phenomenon is not new. Lawsuits supported by pro-school funding organizations have been taking place for decades, although the economic recession of the last five years has reignited a long-standing debate about school funding.
In 1973, the Supreme Court, then under the leadership of Associate Justice Thurgood Marshall, ruled that education is not a right guaranteed by the Constitution; therefore, education funding cannot be increased or guaranteed by the federal government. However, within that ruling, Marshall noted that there was no prohibition against this issue being taken up in the states and each of their state supreme courts. Since that time, only five states have not faced such lawsuits: Delaware, Hawaii, Mississippi, Nevada and Utah. This month, Texas, Kansas and Colorado face lawsuits.
Since each state has a “provision for education as a positive right”, according to Molly Hunter, director of Education Justice at the Education Law Center, these lawsuits show no sign of stopping.
Part of the confusion surrounding these lawsuits concerns the fact that some address the issue of “equity” while others address the issue of “adequacy”. At times, each argument for increased educational funding has achieved success in state supreme courts; however, Hunter argues that historically the “equity” argument—that states are not spreading education funds proportionally—has found more success. Moreover, Hunter argues that state supreme courts reviewing education funding lawsuits, even when those lawsuits argue in terms of “adequacy”, tend to still view these lawsuits through the lens of “equity”.
The emphasis in recent years on higher standards, however, may bolster the “adequacy” argument.
The other question that confuses the issue of lawsuits concerning education funding is that state supreme courts are restricted by diverse state laws concerning how state funds can be used. Some states, such Colorado, have forms of a “taxpayers’ bill of rights” which restrict funding, while others, such as Wyoming, have more consistently ruled in favor of increased funding, leading to an influx of teachers from around the country who are seeking higher salaries. Due to these diverse rules and the confused history of this issue, state supreme courts are also typically unwilling to specify any guidelines for the future regarding how education funding should be dispersed.
Ultimately, many policy analysts, such as Dan Thatcher of the National Conference of State Legislatures, argue that even if pro-funding decisions are made, the vicissitudes of state budgets over time determine that “the status quo before the litigation eventually comes back into place.”
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