Will ESSA Energize "Adequate Education" in State Courts?
Note: This week, Arnold Shober, associate professor of Government at Lawrence University in Appleton, WI, will be guest blogging.
Sen. Lamar Alexander heralded the long-overdue ESSA as a gift to the states. And it does indeed return major educational decisions to state leaders, especially over the content of standards and methods of assessment. But giving the states additional authority over the federal government's premier educational equity law may be a gift that states rue. This week, I'd like to take a look at possible political consequences of this new state-federal alignment.
Perhaps the most overlooked sleeper consequence of the new law is a subtle institutional power shift from state legislatures to state courts. Sen. Alexander may have thought he was freeing legislators and governors to "make their own decisions," but ESSA may have instead offered an open invitation for state judges to assert themselves aggressively as arbiters of state education policy. Many did this in 1970s and 1980s finance cases, but ESSA covers much more than spending.
The original Elementary and Secondary Education Act (1965) was a way to take some decision-making power away from states and districts and redistribute it. Federal courts in that decade seemed eager to overturn decades of local control in favor of equal educational access — and perhaps even equal outcomes. Advocates tried to sever the link between local politics and education. For a time, court decisions culminating with Serrano v. Priest (1971) seemed to find that unequal education violated both the First (guaranteeing the ability to participate in politics through speech) and Fourteenth (equal protection) Amendments.
Still, the courts struggled with knowing what equality meant, at least after de jure racial barriers were eliminated. A federal court held that student "needs" were not "judicially manageable" and the courts could not provide "intelligent educational planning." Essentially, that court found that judges could tell if spending was equal but they could not really tell what was adequate for less well-off students. To top it off the Supreme Court held that trying to guarantee equal outcomes was a "judicial intrusion" in 1974. Education wouldn't be a fundamental right, and federal courts' remaining interests were the narrower questions of racial integration and desegregation.
Advocates for spending and outcome equity pressed on at the state level. By and large, they tried two different strategies in the courts. One simply argued that per-pupil spending should be equal anywhere within a state. This is an "equity" argument. This strategy met limited success in the courts and even advocates grew dissatisfied with the results. Some students, they came to argue, might need extra spending. So they tried something else.
The alternative, the "adequacy" defense, argued that states should guarantee that students could meet state standards, even if that meant very unequal spending. Unlike the federal Constitution, many state constitutions guarantee some form of educational equality. In one of the early cases, Kentucky's court took its constitutional guarantees to argue that education could not be equal unless it met some minimum standard of quality. A handful of state courts also adopted this view in the 1990s, but it was clear that it was the superior legal strategy. And so most contemporary cases are adequacy cases. State courts that have adopted this view recently include Colorado, Kansas, and Washington.
Here is where ESSA comes in.
In 1989, Kentucky's court-mandated adequacy standards required the state to pay for students to have "academic or vocational skills . . . to compete favorably with their counterparts in other states" and be prepared for "advanced training in either academic or vocational fields" at the completion of the K-12 sequence. This fits hand-in-glove with ESSA's (and Common Core's) college-and-career focus, and now the federal law requires states to adopt the same view.
Although ESSA does not itself require academic equity, state courts have become more interested in academic training recently —and because ESSA applies to all states, courts in every state could now use it to push equity. Last month, Kansas' supreme court announced it would hear arguments about the adequacy for ensuring academic achievement under a just-approved state financing system. This was a switch; Kansas' earlier finance case had only considered the "actual costs" of required education services. What might academic achievement be? Well, in 2011, a Colorado trial court faulted that state for "failing to quantify" the costs of academic standards. NCLB is mentioned, but only as a minor part of the story. Although the Colorado Supreme Court reversed the finding, other state courts have applied similar logic. Washington State's case indicated that districts had to be funded to meet state standards, and indeed, federal education laws are not mentioned in that supreme court's 2012 decision.
Prior to ESSA, states could at least use Colorado's strategy — keep one set of books for assessment at home and one set for the feds. This fact was well documented. Now, ESSA makes states central to identifying schools for improvement and crafting "turnaround" plans. What was once a sidebar in state court decisions may now be headliners. At least with NCLB, states could argue that the federal government's legislation, or Department of Education regulations, placed impossible demands on the states —like Connecticut did in its failed court challenge. Now, the state is responsible for setting the standards, measuring performance on those standards, and creating consequences for the standards. It is not a hard stretch for litigants to argue that state governments must also make it possible for schools to meet those goals. It's all in-house work.
But wait, there more! ESSA requires a non-tested measure of schools, too. If they opt to use some sort of "school climate" measure — like California's SQII — a court could require schools to be adequately conducive to learning. A fuzzy concept like school climate would then be quantified. How much does one school happiness unit cost? That might also be the beginning: After all, Kentucky's Rose standards also require students to "appreciate his or her . . . heritage" and posses "self-knowledge." These are fuzzy concepts that are impossible to equalize, at least in the country's industrial, age-stratified school systems.
Although funding is unlikely to remedy inequality in a meaningful way in the short term, state courts have found it a convenient metric, not to mention that it is quantifiable. And it makes both Republicans and Democrats squirm. Although Republicans often take heat for clamping down on school spending, Democrats are just as skittish of giving courts a say over education funding. Democrat Christine Gregoire supported an appeal in Washington's case and Democrat John Hickenlooper was adamant that lower courts were ill-informed about the interaction of several state laws. The reasons aren't mysterious. As K-12 funding is often the largest single item in state budgets — approximately one-third of all general purpose revenue. (This does not include federal monies.) Those funds tie directly to state taxes, and few politicians are eager to let a state courts tie their hands on taxes.
ESSA was meant to move beyond NCLB's widely-panned proficiency obsession. But there is substantial political comfort in having someone else make the rules, and free will is frightening. Governors and legislators aren't likely to stray too far from simplistic NCLB-era accountability with which they've had a decade of experience. If Sen. Alexander meant to give authority to the states, he may have created a Trojan horse instead.