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Public School And The Courts

The Sirkins, who have written about public education in Connecticut, point us in the right direction and review a book edited by the masterful Eric A. Hanushek

By Gerald and Natalie Sirkin

Thinking Americans have become keenly aware during the past 30 years of two public entities which, by their bungling, are doing great damage to society.

One is the public school system. The other is the arrogant, intrusive judiciary. Separately, each is capable of inflicting serious harm. Combined, their power for injury is greatly magnified. We are only just becoming conscious that the public schools and the courts have joined hands.

Excellent essays concerning legal proceedings on school financing are collected in Courting Failure, How School Finance Lawsuits Exploit Judges’ Good Intentions and Harm Our Children, edited by Eric A. Hanushek (Stanford, Cal.: Hoover Institution Press, Education Next Books, 2006, pp. 367, $25, paperback $15).

Interested parties in the school system hunting for more funds have turned to the courts. In the 1970s, they began filing lawsuits based on the argument that the disparity of spending among school districts is not equitable and therefore not constitutional.

The equity argument did not work out well for them. Sol Stern comments on New York’s Court of Appeals decision in 1982: “In a rare display of restraint that seems almost quaint by today’s standard, the state’s highest court declared that while reducing or ending funding disparities in education might be a grand idea, it was up to the legislature, not the judicial branch, to address the issue.”

That decision, however, created a new opening for lawsuits. The court hinted that it might be willing to consider a suit based on “gross and glaring inadequacies.” If school funding were found to be inadequate for an acceptable level of education, it would violate the state constitution.

Thus began the adequacy lawsuits although no one knew then and no one knows today how to define or measure adequate funding. New York City , one of the leaders, filed a suit in 1993 against New York State for more funding. After 13 years and immense legal expenses, the case is just ending.

The plaintiffs arrived at a figure for the cost of an “adequate” education by commissioning a study by a panel of school administrators, principals, and teachers. Not surprisingly, these school employees thought that the schools needed a great deal more money, specifically $5.63 billions more per year. The State Legislature and the Governor, wrestling with a budget deficit, were staggered. They proposed a much smaller amount. The judge appointed another panel, three referees all in the law business with no expertise in education, and they confirmed $5.63 billion. Meanwhile, spending by the City schools shot up by 50 percent. The increased spending yielded no improvement in learning. The court paid no attention.

Last month, on November 20, the Court of Appeals ended the case, holding that the lower court had exceeded its authority by intruding on the domain of the State Legislature and the Governor. The decision cut back the increase from $5.63 billion to $1.93 billion, which the Governor’s commission had recommended.

Adequacy lawsuits have spread to about 45 states. The state courts have taken on themselves the task of defining what the state constitutions require, often going to absurd lengths. Some courts have interpreted the constitutions to mean that the schools must provide the “best” education, an open-ended concept that can enable the courts to order unlimited increases of spending. In Wyoming , the court expanded its interpretation from “the best” to “visionary” and “unsurpassed.”

In several states, the courts have held that “thorough and efficient” means that the schools must eliminate the achievement-gap between ethnic or socio-economic groups. Since no school system has been able to eliminate the gap, the potential for finding education funding unconstitutional and requiring more spending is endless.

The incompetence of the judiciary in overcoming the failures of public schools is demonstrated by the apparent faith of courts that more spending assures more learning. Several essays in Courting Failure show how little relation learning has to spending. Some of the highest spending schools have the lowest test scores (Newark, Washington, D.C., Cambridge, Mass., Kansas City, Sausalito, Cal.). Some of the lowest spenders have the highest scores.

Walberg’s essay on high-poverty, high-performance schools reports a large-scale RAND study showing that major cost factors—per-pupil spending, pupil-teacher ratios, proportion of teachers with advanced degrees, and teacher experience—make no difference in achievement.

All these attempts at school reform have been blatant failures. Eric Hanushek’s essay shows convincingly that no educational benefit can possibly come from judicial interference.

The failures are illustrated by the persistence of Progressivism in education, summarized in Evers and Clopton’s essay on high-spending, low-performing school districts. Progressivism believes in child-centered discovery-learning (leave it to the children to find their own knowledge), Whole Language (learn to read by recognizing the appearance of words, not by decoding), abstract mental skills (“higher order critical thinking”), no drills or memorization.

None of the Progressive beliefs is supported by empirical research. All are rejected, yet they continue and are taught to prospective teachers in schools of education.

Courting Failure recognizes the blight of Progressivism but doesn’t explain why the blight persists in spite of research and experience. One explanation is that public schools do not have to compete. They are political organizations. They do not have to produce results to get financing.

School reform will not work nor will education improve till schooling in the private sector is sufficiently financed and expanded to provide the competition that will drive the public schools to reform.


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