Full state funding of education as a state constitutional imperative

Hastings Law Journal

Volumn 60, Issue 4, 2009, Pages 749-795

  Reynolds, Laurie ^a  

^a UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

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EID: 67649314109     PISSN: 00178322     EISSN: None     Source Type: Journal    
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References (259)

1. These figures are for 2004 to 2005. U.S. DEP'T OF EDUC, 10 FACTS ABOUT K-12 EDUCATION FUNDING I (2005), available at http://www.ed.gov/about/overview/fed/10facts/ 10facts.pdf.
2. The inequality has persisted since the beginning of modern school finance litigation, in which plaintiffs documented the tremendous revenue gaps between rich and poor districts. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,11-16 (1973);
3. Serrano v. Priest, 487 P.2d 1241,1258 (Cal. 1971). Since 2000, the Education Trust has issued annual reports documenting the ongoing, and in some cases worsening, revenue inequality. For instance, it reported that in 2004, the gap between wealthy and poor districts had increased in twenty-two states. KEVIN CAREY, EDUC. TRUST, THE FUNDING GAP 2004: MANY STATES STILL SHORTCHANGE LOW-INCOME AND MINORITY STUDENTS 8 (2004), available at http://www2.edtrust.0rg/NR/ rdonlyres/30B3C1B3-3DA6-4809-AFB9-2DAACF11CF88/o/funding2004.pdf. More recently, it found that many states provide the least funding to schools teaching students with the greatest educational needs. See CARMEN ARROYO, EDUC. TRUST, THE FUNDING GAP 4 (2008), available at http://www.closingtheachievementgap. org/cs/ctag/download/resources/75/FundingGap20O7.pdf?x-r=pcfile-d ("In 2005, districts serving the highest concentration of poor students received, on average, $938 less per-pupil in state and local money than the lowest poverty districts. As unjust as these amounts seem[,] they understate the real gaps in educational opportunities. Students growing up in poverty do not merely need the same resources as others, they need more from their schools than do students who can fall back on community and family resources to support their achievement.").
4. For a recent account of continuing deficiencies in U.S. public schools, see Jeannie Oakes and Martin Lipton, "Schools that Shock the Conscience": Williams v. California and the Struggle for Education on Equal Terms Fifty Years After Brown, 11 ASIAN L.J. 234, 237-46 (2004), summarizing the plaintiffs' evidence of deficiencies in the school, which the opposing party, the state, did not dispute. See generally Jonathan Kozol, THE SHAME OF THE NATION: THE RESTORATION OF APARTHEID SCHOOLING IN AMERICA (2004). For an eloquent defense of the need for radical reform of our public education system, see W. Norton Grubb et al., The Unending Search for Equity: California Policy, the "Improved School Finance," and the Williams Case, 106 TCHRS. C. REC. 2081, 2097-98 (2004) ("The claims of equity are too deeply rooted in American history and education, and the consequences of inequity-the miserable conditions in urban schools, the persistence of achievement and other gaps including the black-white test score gap, the Latino-Anglo attainment gap, the differences in college access, the persistent effects of family background on every imaginable educational outcome-are unacceptable.").
5. See William Koski, Achieving "Adequacy" in the Classroom, 27 B.C. THIRD WORLD L.J. 13, 13-14 (2007).
6. Of the twenty cases based on equality brought in state court, plaintiffs won in seven. James E. Ryan, Schools, Race and Money, 109 YALE L.J. 249,267 & nn.74-75 (1999).
7. See, e.g., Molly S. McUsic, The Future of Brown v. Board of Education, 117 HARV. L. REV. 1334, 1136-54 (2004) (examining equality remedies and concluding that "equalizing funding has not equalized opportunity"). In fact, one commentator used the term "Pyrrhic" to describe the results of equality litigation. Bradley W. Joondeph, The Good, The Bad, and the Ugly: An Empirical Analysis of Litigation-Prompted School Finance Reform, 35 SANTA CLARA L. REV. 763,814 (1995).
8. William Thro was the first to use a wave metaphor to describe the shifting doctrinal bases of school finance litigation from equality to adequacy. See William E. Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model, 35 B.C. L. REV. 597, 598 n.4 (1994). Academic literature discussing the "waves" is vast. See, e.g., John Dayton & Anne Dupre, School Funding Litigation: Who's Winning the War?, 57 VAND. L. REV. 2351, 2359-76 (2004);
9. Michael Heise, Equal Educational Opportunity, Hollow Victories, and the Demise of School Finance Equity Theory: An Empirical Perspective and Alternative Explanation, 32 GA. L. REV. 543, 571-79 (1998); Michael Heise, State Constitutions, School Finance Litigation, and the "Third Wave": From Equity to Adequacy, 68 TEMPLE L. REV. 1151, 1151-56 (1995);
10. Gail Levine, Meeting the Third Wave: Legislative Approaches to Recent Judicial School Finance Rulings, 28 HARV. J. ON LEGIS. 507, 507-13 (1991); Laurie Reynolds, Skybox Schools: Public Education as Private Luxury, 82 WASH. U. L.Q. 755, 762-67 (2004) [hereinafter Reynolds, Skybox Schools]; William E. Thro, The Third Wave: The Impact of the Montana, Kentucky, and Texas Decisions on the Future of Public School Finance Reform Litigation, 19 J.L. & EDUC. 219, 219-50 (1990).
11. Laurie Reynolds, Uniformity of Taxation and the Preservation of Local Control in School Finance Reform, 40 U.C. DAVIS L. REV. 1835,1851-62 (2007) [hereinafter Reynolds, Uniformity].
12. Both the equality and adequacy cases borrow heavily from each others' doctrinal underpinnings and normative rationales, and the litigants cannot be so neatly cubbyholed as the typology suggests. See generally Richard Briffault, Adding Equity to Adequacy, in SCHOOL MONEY TRIALS: THE LEGAL PURSUIT OF EDUCATIONAL ADEQUACY 25, 25-54 (Martin R. West & Paul E. Peterson eds., 2007). Inadequacy and inequality come together in the U.S. public school system. For example, in Lakeview District No. 25 v. Huckabee, 91 S.W.3d 472 (Ark. 2002), the court noted the "considerable overlap between the issue of whether a school funding system is inadequate and whether it is inequitable." Id. at 496. Judicial decrees invalidating school funding systems frequently combine notions of equality and adequacy notwithstanding the plaintiffs' singular doctrinal focus. For instance, in Robinson v. Cahill, 303 A.2d 273 (N.J. 1973), a landmark New Jersey decision heralded as one of the earliest adequacy cases, the court interpreted the state's constitutional requirement of a "thorough and efficient" education as requiring "equal educational opportunity" for New Jersey students. Id. at 283; accord Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139,152-56 (Term. 1993); Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391,397 (Tex. 1989); Campbell County Sch. Dist. v. State (Campbell I), 907 P.2d 1238,1263-80 (Wyo. 1995). Professor James Ryan's recent analysis of the cases came to the same conclusion. James P. Ryan, Standards, Testing, and School Finance Litigation, 86 TEX. L. REV. 1223,1232-39 (2008).
13. See, e.g., Peter Enrich, Leaving Equality Behind: New Directions in School Finance Reform, 48 VAND. L. REV.IOI, 166-83 (T995)'Heise, supra note 7, at 1162-76;
14. Molly McUsic, The Law's Role in the Distribution of Education: The Promises and Pitfalls of School Finance Litigation, in LAW AND SCHOOL REFORM: SIX STRATEGIES FOR PROMOTING EDUCATIONAL EQUITY 88, 90-92 (Jay P. Huebert ed., 1999);
15. Molly McUsic, The Uses of Education Clauses in School Finance Reform Litigation, 28 HARV. J. ON LEGIS. 307, 322-32 (1991);
16. Mildred Wigfall Robinson, Financing Adequate Educational Opportunity, 14 J.L. & POL. 483,495-501 (1998).
17. Vertical equity urges distribution of education revenues solely on the basis of children's educational needs. It recognizes that some children are more expensive to educate than others, and that a comparison of dollars spent is not likely to be a reliable way to assess educational opportunity. In a case filed in 2000, for instance, plaintiffs in California asked the court to shift its focus from inadequacy or inequality of revenues to a standard of adequacy of "real resources-credentialed teachers, adequate textbooks, and appropriate physical facilities." Grubb et al., supra note 3, at 2094. In 2004, the parties settled, with the state agreeing to provide money for books, safety in schools, and more highly qualified teachers. The Williams Case-An Explanation, http://www.cde.ca.gov/eo/ce/wc/wmslawsuit.asp (last visited Mar. 23, 2009);
18. see also Preston C. Green & Bruce D. Baker, Circumventing Rodriguez: Can Plaintiffs Use the Equal Protection Clause to Challenge School Finance Disparities Caused by Inequitable State Distribution Policies?, 7 TEX. F. ON C.L. & C.R. 142 (2002) (discussing the potential success of equal protection challenges that might come about as a result of integrating vertical equity); Julie K. Underwood, School Finance Adequacy as Vertical Equity, 28 U. MICH. J.L. REF. 493, 516-19 (1995). In an earlier article, I supported this development, arguing that vertical equity more accurately tracks the right at stake in school finance and that it is more faithful to the foundational principles of equal educational opportunity. See Reynolds, Uniformity, supra note 8, at 1851-62.
19. Michael A. Rebell, Poverty, "Meaningful" Educational Opportunity, and the Necessary Role of the Courts, 85 N.C. L. REV. 1467,1467 (2007).
20. See Ryan, supra note 9, at 1225.
21. Jeffrey Metzler's statistical analysis made this point most convincingly. See Jeffrey Metzler, Inequitable Equilibrium: School Finance in the United States, 36 IND. L. REV. 561, 578-79 (2003) ("Surprisingly, almost no characteristic of a state's school finance program. was significantly correlated with outcome measures. In other words, the allocation of resources in states with flat grant or foundation programs were not, on average, any more equitable or wealth neutral than the allocation of resources in states with percent equalizing, guaranteed tax base, or full state funding." (footnote omitted)).
22. For a recent listing of plaintiff wins and losses, see Nina L. Pickering, Note, Local Control vs. Poor Patrol: Can Discriminatory Police Protection Be Remedied Through the Education Finance Litigation Model?, 86 B.U. L. REV. 741, 754 n.72 (2006). The National Access Network tracks the status of school funding litigation around the country and is an excellent resource. See Access Quality Education: School Funding Litigation, Policy and Advocacy, http://www.schoolfunding.info/index.php3 (last visited Mar. 23, 2009).
23. Molly Hunter, Requiring States to Offer a Quality Education to All Students, 32 FALL HUM. RTS. 10, 10 (2005). Similar observations appear in the press accounts. See, e.g., Steve Smith & Greta Durr, Litigation in Education, STATE LEGISLATURES, Sept. 2004, at 12, 14 ("[P]laintiffs have been successful in approximately two-thirds of the major education finance cases since 1989. Over the past few years, they've won an even higher percentage of court cases.").
24. Arkansas is a good example of the problem. The Arkansas Supreme Court's holding in Dupree v. Alma School District No. 30, 651 S.W.2d 90 (Ark. 1983), invalidated the state's school finance statute and condemned its failure to provide equal educational opportunity. Id. at 94. More than twenty years later, the court once again invalidated the state's school funding system, condemning the "glacier speed" of the legislative response. Lake View Sen. Dist. No. 25 v. Huckabee, 210 S.W.3d 28, 30 (Ark. 2005) (discussing the court's mandate to the legislature to fix school finance system in splintered opinions).
25. See infra text accompanying notes 21-61.
26. See infra Part I.B.
27. Proposals for full state funding of education have been in the literature for decades. See, e.g., Arthur Wise, Movement Toward Full State Funding: A Proposal, n THEORY INTO PRAC. 131, 131-36 (1972). In fact, the New Jersey Federation of Labor made the same proposal as early as 1947. See Robinson v. Cahill, 303 A.2d 273, 294 (N.J. 1973) ("It has been noted that the 1947 Constitutional Convention did not act upon a recommendation of the New Jersey Federation of Labor that education be funded out of State revenues."). One of the earliest and most influential defenses of wealth neutrality in public education in the modern school finance literature is JOHN E. COONS ET AL., PRIVATE WEALTH AND PUBLIC EDUCATION (1970). In that volume, the authors argued that "the quality of public education may not be a function of wealth other than the total wealth of the state." Id. at 304. The supreme courts of California and more recently Wyoming explicitly accepted that standard as the basis for their invalidation of the state's school funding statute. Serrano v. Priest, 487 P.2d 1241, 1244 (Cal. 1971) ("Recognizing as we must that the right to an education in our public schools is a fundamental interest which cannot be conditioned on wealth, we can discern no compelling state purpose necessitating the present method of financing[,]" which "makes the quality of a child's education a function of the wealth of his parents and neighbors."); Washakie County Sch. Dist. No. 1 v. Herschler, 606 P.2d 310,336 (Wyo. 1980).
28. A third and much less frequent type of response has been the legislative imposition of caps on the local tax rate or on total local revenues for school funding. Usually done in conjunction with the appropriation of additional state funds for the poorest districts, the caps are intended to close the gap between poorest and richest districts. In an earlier article, I concluded that the caps did little to enhance equality, primarily because they contain so many grandfathering provisions, exemptions, and opportunities for local option supplementation that they invariably preserve, and sometimes exacerbate, the disparities that led to their imposition. See Reynolds, Skybox Schools, supra note 7, at 779-804.
29. See CHRIS ATKINS, TAX FOUND., BACKGROUND PAPER No. 55, APPROPRIATION BY LITIGATION: ESTIMATING THE COST OF JUDICIAL MANDATES FOR STATE AND LOCAL EDUCATION SPENDING 7 (2007),available at http://www.taxfoundation.org/ files/bp55.pdf.
30. Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71,97-98 (Wash. 1978).
31. For details of the school finance system adopted in response to the supreme court's decision, see Reynolds, Skybox Schools, supra note 7, at 785-88.
32. In 1980, two years after the Washington Supreme Court's holding in Seattle School District No. 1, local levies were 8% of district budgets. Op-Ed., In Our View: Levy Lid Heavy, COLUMBIAN (Vancouver, Wash.), Mar. 15, 2003, at C6. In some districts they now account for almost 30%. Id.
33. Petition for Declaratory Judgment H9-19, McCleary v. State, No. 07-2-02323-2 (Wash. Super. Ct. Jan. n, 2007), available at http-7/www.waschoolexcellence.org/files/SEADOCS% http://www.waschoolexcellence. org/files/SEADOCS%252050757362%2oPetition%20for%2oDeclaratory%2oJudgment%20- %2oHigh%2oResolution%20i.PDF; Complaint for Declaratory Judgment 4.1-.34, Fed. Way Sch. Dist. No. 210 v. State, No. 06-2-86840-1 (Wash. Super. Ct. Nov. 20, 2006), available at http://www.schoolfunding.info/states/wa/FederalWay- complaint%20i 1-20-06.pdf. Both lawsuits point to the state's failure to implement a fully state funded system of education as the crucial constitutional flaw. Petition for Declaratory Judgment, supra, m 99- 108; Complaint for Declaratory Judgment, supra, 5.1-.4.
34. No. 91-CV-1009 (Kan. Dist. Ct. Oct. 14, 1991); see also Montoy v. State, No. 99-C-1738, 2003 WL 22902963 (Kan. Dist. Ct. Dec. 2,2003) (describing and quoting Mock v. State extensively).
35. KAN. STAT. ANN. §§ 72-6405 to -6440 (2002).
36. Unified Sch. Dist. No. 229 v. State, 885 P.2d 1170,1197 (Kan. 1994).
37. Montoy, 2003 WL 22902963, at "37.
38. Montoy v. State, No. 99-C-1738, 2004 WL 1094555, at *4 (Kan. Dist. Ct. May 11, 2004).
39. For a history of the litigation in Montoy v. State, which involved five more supreme court opinions and numerous lower court orders, see Montoy v. State, 138 P.3d 755,757-59 (Kan. 2006).
40. 6o6P.2d3io, 322 (Wyo. 1980).
41. See Campbell /, 907 P.2d 1238,1250 (Wyo. 1995).
42. See BRENDA LISS ET AL., DON'T FOROET THE SCHOOLS: LEGAL CONSIDERATIONS FOR TAX REFORM 9 (2006), available at http://ielp.rutgers. edu/d0cs/DFTS2-web.pdf.
43. 495 A.2d 376 (N.J. 1985).
44. Liss ET AL., supra note 35, at 6.
45. The New Jersey Constitution provides that "[t]he Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years." N.J. CONST, art. VIII, § 4.
46. See Abbott v. Burke (Abbott II), 575 A.2d 359, 385-86 (N.J. 1990). The New Jersey Department of Education classifies districts according to their socioeconomic status. NJ Department of Education District Factor Groups (DFG) for School Districts, http://www.state.nj.us/education/finance/sf/dfgdesc. shtml (last visited Mar. 23, 2009). The Abbott plaintiffs are comprised of New Jersey's poorest urban districts, all classified as either A or B. See Liss ET AL., supra note 35, at 5. The court ordered that the legislature assure that funding in the those districts be roughly equal to spending in the state's wealthiest I and J districts. Abbott II, 575 A.2d at 408. In Abbott by Abbott v. Burke (Abbott IV), the court rejected the legislature's statutory revisions and reinstated the Abbott II funding mandate. 693 A.2d 417,444 (N.J. 1997). The court found that the I and J district budgets were an "objective and reasonable" measure of necessary resources for the special needs districts, but it encouraged the state to come up with its own standards to determine the cost of providing a thorough and efficient education. Id. at 440-42.
47. Abbott II, 575 A.2d at 393-94.
48. Abbott IV, 693 A.2d at 432.
49. Liss ET AL., supra note 35, at 10.
50. In terms of overall state education funding, in fact, the state is currently spending more than half of its annual school budget on Abbott districts. See Catherine Gewertz, A Level Playing Field, EDUC. WK., Jan. 6,2005, at 5. Those districts educate only 22% of the state's children. Id.
51. See PAUL TRACTENBERG, DON'T FORGET THE SCHOOLS: FISCAL, BUDGET AND POLICY CONSIDERATIONS FOR TAX REFORM 9 (2006), available at http://ielp.rutgers.edu/docs/DFTSi-web.pdf. In an administrative proceeding before the State Board of Education, Bacon v. Department of Education, seventeen poor A and B districts from rural areas, which had not been included as Abbott districts, filed a claim that they were entitled to the same state aid as the Abbott districts. 942 A.2d 827, 831 (N.J. Super. Ct. App. Div. 2008). Since the original administrative law judge decision in 2002, one new district has been designated as "special needs" and thus entitled to Abbott funding. Id. at 833. The State Board ordered an examination of the current funding system in order to establish a unified system of funding. Id. at 835. The New Jersey appellate court recently ordered the Commissioner of the Department of Education to proceed with that order and to undertake a needs assessment for the poor rural districts who had sought Abbott status. Id. at 838.
52. In Stubaus v. Whitman, the court denied standing to the plaintiff districts and rejected the individual plaintiffs claims that New Jersey's funding statute was unconstitutional because it increases, rather than decreases, funding disparities. 770 A.2d 1222,1230,1237 (N.J. Super. Ct. App. Div. 2001).
53. Abbott IV, 693 A.2d at 445.
54. See ATKINS, supra note 22.
55. See id. at 3.
56. A concurring judge in the recently terminated litigation over school funding for New York City, made a similar observation, noting that other districts are likely to have equally meritorious claims and that a statewide approach to funding issues is required. Campaign for Fiscal Equity, Inc. v. State, 801 N.E.2d 326,360-61 (N.Y. 2003) (Smith, J., concurring).
57. Illinois is a good example, where the gap between the richest and poorest school districts' per pupil spending is nearly $30,000. See CHRISTOPHER M. MULLIN & KATHLEEN SULLIVAN BROWN, III. EDUC. RESEARCH COUNCIL, GROUNDING RESEARCH IN REALITY: FISCAL EQUITY AND K-12 FUNDING IN ILLINOIS 16 (2008), available at http://ierc.siue.edu/documents/2008- 3%20Grounding%20Research%2oin%2oReality.pdf. The State of Illinois contributes less than 30% of all school dollars, leaving the rest to be generated from the local property tax. See Diane Rado, Rich School, Poor School, CHI. TRIB., Feb. 4, 2007, available at http://archives.chicagotribune.com/2007/feb/04/news/chi-0702040055feb04; Diane Rado & Darnell Little, Spending Gap Grows for Schools, Cm, TRIB., Aug. 1, 2005, available at http://www.redorbit.corri/ news/education/i93782/spending-gap-grows-for-schools/.
58. In fact, one statistical analysis of state spending patterns found a negative correlation between a state's average expenditure per pupil and the percentage of education funds that come from the state. Metzler, supra note 14, at 580. Metzler found that "[ljower state contributions as percentage of total spending correlate with higher average spending at a statistically significant level." Id.; see abo McUsic, supra note 6, at 1350 n.87 (noting that a shift towards state rather than local funding also results in a shift of resources away from education and toward other budget priorities).
59. This phenomenon is known to urban economists as full line forcing. Studies of budgeting for services in urban areas have established that when a funding source is isolated and pledged specifically to a particular service, overall revenues are higher than when that service must compete with others for a share of the general revenues fund. See generally KATHRYN A. FOSTER, THE POLITICAL ECONOMY OF SPECIAL-PURPOSE GOVERNMENT 189-217 (1997).
60. See School Finance in Michigan Before and After the Implementation of Proposal A, in THE MICHIGAN SCHOOL AID ACT COMPILED AND APPENDICES APP. A (1094), available at http://www.senate.michigan.gov/sfa/Publications/JointRep/ finpropa/95comp.html (detailing Proposal A and how it changed school funding).
61. Id.
62. Id.
63. See Michael F. Addonizio et al., Blowing Up the System: Some Fiscal and Legal Perspectives on Michigan's School Finance Reform, 107 EDUC. L. REP. 15, 20 (1996).
64. Bloomfield Hills, one of the five richest municipalities in the United States, receives an additional $5,176 per pupil from the state whereas the Detroit public schools' additional payment is set at $353. Citizens for Equity, http://www.citizensforequity.org (last visited Mar. 23, 2009) (follow the "(full listing here)" hyperlink under "Is this Equity?") (school funding watchdog group providing information on the gaps in per pupil spending). Over 400 districts receive no supplemental funding. Id.
65. This glaring inequality in distribution of state money suggests equal protection challenges under the state constitution. See Addonizio et al, supra note 56, at 35.
66. Michele Moser & Ross Rubenstein, The Equality of Public School District Funding in the United States: A National Status Report, 62 PUB. ADMIN. REV. 63,68-69 (2002).
67. See DAVID ARSEN ET AL., ADEQUACY, EQUITY AND CAPITAL SPENDING IN MICHIGAN SCHOOLS 1-3 (2005), available at http://www.epc.msu.edu/ publications/Capital%2oFunding/CF%2oEXEC% http://www.epc.msu.edu/publications/ Capital%252oFunding/CF%252oEXEC%252oSUM%2oFINAL%2026MAY05.pdf. Arsen notes that "the average mileage rate in the poorest 20 percent of school districts is nearly three times higher than the average rate in the richest 20 percent of districts." Id. at ii.
68. This conclusion was most dramatically corroborated by Jeffrey Metzler in his statistical analysis of statutory reform of school finance statutes. Metzler found that: In many states, the distribution of education resources is primarily a function of the distribution of political power in the state. This distribution is the "equilibrium point," and in many states it is an inequitable equilibrium insofar as it permits wealthy districts, even at lower tax rates, to spend more per student than poor districts. Metzler, supra note 14, at 564. Although a court ruling may temporarily upset that equilibrium point, it tends to reemerge over time. See id.
69. In this Part, I use the term "nonjusticiability" loosely to identify a group of courts for which involvement in school funding disputes presented sufficiently serious doctrinal or pragmatic concerns about judicial intervention in essentially legislative affairs as to result in a refusal to consider the merits of the plaintiffs' claims. Some of the courts meticulously applied the political question standards articulated by the United States Supreme Court in Baker v. Carr, 369 U.S. 186, 217 (1962). See, e.g., Lobato v. State, No. 06CA0733, 2008 WL 194019, at "7-11 (Colo. Ct. App. Jan. 24, 2008) (distinguishing justiciability as a standing doctrine from the political question doctrine); Neb. Coal, for Educ. Equity & Adequacy v. Heineman, 731 N.W.2d 164,177-79 (Neb. 2007). Other courts relied on a range of different concerns, such as separation of powers and judicial activism. See, e.g. Ex parte James, 836 So. 2d 813 (Ala. 2002). The precise contours and relationship between these related doctrines, one jurisdictional and one prudential, are beyond the scope of this Article.
70. Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178 (111. 1996).
71. City of Pawtucket v. Sundlun, 662 A.2d 40, 39 (R.I. 1995) (reviewing the New Jersey experience, the court concluded that "[t]he volume of litigation and the extent of judicial oversight provide a chilling example of the thickets that can entrap a court that takes on the duties of a Legislature").
72. Coal, for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 A.2d 400 (Fla. 1996).
73. Marrero v. Commonwealth, 709 A.2d 956,964-65 (Pa. 1998) (reaffirming an earlier supreme court holding, Danson v. Casey, 399 A.2d 360 (Pa. 1979), in which the court found that the plaintiffs had not presented a justiciable cause of action).
74. Ex parte James, 836 So. 2d 813.
75. Lobato v. State, No. 06CA0733, 2008 WL 194019 (Colo. Ct. App. Jan. 24,2008).
76. Plaintiffs in Young v. Williams had asked the court to order the legislature to undertake a cost study to determine the appropriate level of state funding. See Matthew Samberg, Litigation Update: Missouri Plaintiffs Testify; Motions in Kentucky, Indiana, Nebraska, and Oklahoma, ACCESS QUALITY EDUC. LITIG. NEWS, Feb. 20, 2007, http://www.schoolfunding.info/news/litigation/2-20-07litupdate. php3. Although the legislature promptly and substantially increased state funding after the Kentucky Supreme Court's opinion in Rose v. Council for Better Education, 790 S.W.2d 186 (Ky. 1989), it has never determined the cost of providing the "efficient system" of education guaranteed by the state constitution. See id.;
77. see also KY. CONST. § 183. The trial judge was puzzled by the legislature's inaction, but concluded that the state constitution's separation of powers provision prevented judicial involvement. See Samberg, supra. The plaintiffs decided not to appeal. See Nancy C. Rodriguez, School Funding Suit Over, COURIER J., June 12, 2007, at B1.
78. Stroebe v. State, 127 P.3d 1051 (Mont. 2006). In this case, the Montana Supreme Court affirmed the lower court's dismissal of the plaintiff's complaint, concluding that the judiciary should allow the legislature more time to comply with the court's earlier opinion in Columbia Falls Elementary School District No. 6 v. State, 109 P.3d 257 (Mont. 2005), which held that the state's finance statute was unconstitutional. Stroebe, 127 P.3d at 1054. More than fifteen years before Columbia Falls, in Helena Elementary School District No. 1 v. State, 769 P.2d 684, 690-91 (Mont. 1989), the court invalidated the predecessor school finance statute, which suggests that the legislature may not be quick to respond to the court's more recent mandate either. Nevertheless, school funding is currently not justiciable in Montana.
79. Neb. Coal, for Educ. Equity & Adequacy v. Heineman, 731 N.W.2d 164 (Neb. 2007).
80. In State ex rel. State v. Lewis (DeRolph V), 789 N.E.2d 195 (Ohio 2003), the court terminated its long-running involvement in the DeRolph litigation. In DeRolph v. State (DeRolph I), 677 N.E.2d 733 (Ohio 1997), the court had invalidated the state's school funding statute under the constitution's education clause and called for "a complete systematic overhaul." Id. at 747. In subsequent opinions, the court continued to invalidate Ohio's legislative responses to DeRolph 1. See DeRolph v. State (DeRolph II), 728 N.E.2d 993 (Ohio 2000); DeRolph v. State (DeRolph III), 754 N.E.2d 1184 (Ohio 2001); DeRolph v. State (DeRolph IV), 780 N.E.2d 529 (Ohio 2002). In 2003, the court issued a writ of prohibition to the trial judge in order to "end any further litigation in DeRolph v. State." DeRolph V, 789 N.E.2d at 202. Although the court did nothing to disturb its repeated previous holdings that the Ohio school finance statutes are fatally flawed, the opinion marked the end of the judiciary's involvement in the dispute. The court concluded that "[t]he duty now lies with the General Assembly to remedy an educational system that has been found by the majority in DeRolph IV to still be unconstitutional." Id.
81. Okla. Educ. Ass'n v. State ex rel. Okla. Leg., 158 P.3d 1058 (Okla. 2007).
82. Other state courts have recently taken the opposite position and have agreed to resolve the merits of the funding dispute. See Carroll-Hall v. Rell, 44 Conn. L. Rptr. 224 (Conn. Super. Ct. 2007); Bonner ex rel. Bonner v. Daniels, 885 N.E.2d 673 (Ind. Ct. App. 2008); Columbia Falls Elementary Sch. Dist. No. 6 v. State, 109 P.3d 257 (Mont. 2005); Neeley v. W. Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746 (Tex. 2005); Brigham v. State, 889 A.2d 715 (Vt. 2005). Nevertheless, the increased reliance on nonjusticiability is evident.
83. Neeley, 176 S.W.3 at 780.
84. Neb. Coal. For Educ. Equity & Adequacy, 731 N.W.2d at 183.
85. Okla. Educ. Ass'n, 158 P.3d at 1066.
86. Ex parte James, 836 So. 2d 813,817 (Ala. 2002).
87. Lobato v. State, No. 06CA0733, 2008 WL 194019, at *J (Colo. Ct. App. Jan. 24, 2008).
88. Okla. Educ. Ass'n, 158 P-d at 1066.
89. Ex parte James, 836 So. 2d at 817.
90. Id. at 819.
91. Lobato, 2008 WL 194019, at * 11.
92. Id. at *n-i3.
93. The lawsuit was filed in 1990 and remained pending in circuit court until the supreme court's dismissal in Ex parte James. See 836 So. 2d at 815 n.i. The supreme court penned no fewer than five other opinions in that lawsuit over that twelve year span. See Siegelman v. Ala. Ass'n of Sch. Bds., 819 So. 2d 568 (Ala. 2001); Pinto v. Ala. Coal, for Equity, 662 So. 2d 894 (Ala. 1995); Ex parte James, 713 So. 2d 869 (Ala. 1997); Opinion of the Justices No. 338, 624 So. 2d 107 (Ala. 1993); James v. Ala. Coal, for Equity, Inc., 713 So. 2d 937 (Ala. 1997).
94. Ex parte James, 836 So. 2d at 819.
95. For a listing of the opinions in the DeRolph litigation, see cases cited supra note 72.
96. State ex rel. State v. Lewis, 789 N.E.2d 195, 202 (Ohio 2003). Thus, the court essentially confirmed that its earlier judicial findings of unconstitutionality in the school finance formula had not been remedied, while at the same time announcing its unwillingness to continue to spar with the legislature over the contours of a constitutional finance plan.
97. Lake View Sch. Dist. No. 25 v. Huckabee, 257 S.W.3d 879 (Ark. 2007); see also Matthew Samberg, Litigation Update: Constitution Satisfied in Arkansas, Mixed Ruling in Alaska, Suit Dropped in Kentucky, New Hampshire Meets Court Deadline, ACCESS QUALITY EDUC. LITIG. NEWS, Jul. 3, 2007, http://www.schoolfunding.info/news/ litigation/7-3-07litupdate.php3.
98. Lake View Sch. Dist. No. 25 v. Huckabee, 91 S.W.3-472,497 (Ark. 2002).
99. 861 N.E.2d 50 (N.Y. 2006).
100. Three years earlier, in Campaign for Fiscal Equity, Inc. v. State, 801 N.E.2d 326 (N.Y. 2003), the New York court had rejected the state's arguments that its legislative modifications and appropriations had cured the school finance scheme of its constitutionality.
101. See Campaign for Fiscal Equity, Inc., 861 N.E.2d at 63 (Kaye, C.J., concurring in part and dissenting in part).
102. Hancock v. Comm'r of Educ, 822 N.E.2d 1134, 1136-37 (Mass. 2005). Two other justices would have found the dispute nonjusticiable, thus producing a majority of five justices unwilling to overturn the legislative response. Id. at 1159-60 (Corwin, J., concurring in the result).
103. Id. at 1139 (Marshall, C.J., concurring).
104. Id. at 1148; see also id. at 1155.
105. 138 P.3d 755,764 (Kan. 2006).
106. Unified Sch. Dist. No. 229 v. State, 885 P.2d 1170,1195 (Kan. 1994).
107. Montoy, 138 P.3d at 771 (Beier, J., dissenting).
108. Aaron Jay Saiger, The Last Wave: The Rise of the Contingent School District, 84 N.C. L. REV. 857, 914 (2006). Professor Saiger posits that adequacy's ascendancy as the legal doctrine of choice for school funding plaintiffs had to do with their belief that adequacy posed less of a nonjusticiability threat, a strategic decision that Saiger believes to be erroneous. Id. at 913.
109. As the author of the Massachusetts Supreme Court's plurality opinion noted, "It is significant. that the Commonwealth has allocated billions of dollars for education reform." Hancock, 822 N.E.2d at 1139.
110. Id. at 1149,1155.
111. Others have noted that the remedy phase of successful school finance litigation can be unsatisfactory and incomplete. See, e.g., Tracy A. Thomas, Ubi Jus, Ibi Remedium: The Fundamental Right to a Remedy Under Due Process, 41 San DIEGO L. REV. 1633, 1636 (2004) (noting that in school litigation, "it may be true that, since the time of Brown, institutional defendants have won the remedial battle"). Others also noted that plaintiffs should articulate a more specific and detailed remedy. See Maurice R. Dyson, A Covenant Broken: The Crisis
112. 104- See Ryan, supra note 9, at 1255-57 (arguing that as a matter of institutional competence, courts are better equipped to measure inputs than outputs).
113. See Reynolds, Uniformity, supra note 8, at 1844-45.
114. See 71 AM. JUR. 2D State and Local Taxation § 113 (2001); 16 MCQUILLIN MUN. CORP. § 44.19 (3d ed. 1984);
115. RICHARD BRIFFAULT & LAURIE REYNOLDS, CASES AND MATERIALS ON STATE AND LOCAL GOVERNMENT LAW 660-81 (7th ed. 2009).
116. III. CONST, art. IX, § 4(a).
117. See, e.g., Medlock v. Leathers, 842 S.W.2d 428,430-31 (Ark. 1992).
118. See, e.g., Desenco, Inc. v. City of Akron, 706 N.E.2d 323,330 (Ohio 1999).
119. See, e.g., State v. Metro. St. Louis Sewer Dist., 275 S.W.2d 225, 234 (Mo. 1955) ("Certainly whether property, of the same value and in this same District, is located in the City or the County is not a reasonable basis for classification for taxation To make this the sole basis for a different amount of tax on the same valuation for the same purpose would be palpably arbitrary and unreasonable."); accord Jarvill v. City of Eugene, 613 P.2d 1, 18 (Or. 1980) ("[Classification based on location is impermissible.").
120. As the Indiana Supreme Court noted: Uniformity in rate. means that the same rate shall apply alike to all in any given taxing district. This means that as a general proposition, [the uniformity of taxation provision] requires that a tax for a state purpose must be uniform and equal throughout the state, a tax for a county purpose must be uniform and equal throughout the county, and so forth. Dep't of Local Gov't Fin. v. Griffin, 784 N.E.2d 448, 452-53 (Ind. 2003) (citations omitted); see also Kankakee County Bd. of Review v. Prop. Tax Appeal Bd., 544 N.E.2d 762, 771 (111. 1989); Thomas v. Kingsley, 206 A.2d 161, 165 (N.J. 1965).
121. All state constitutions require the state to provide education to its citizens. See Dayton & Dupre, supra note 7, at 2356 n.13.
122. Though the argument may seem straightforward, the lack of analogies in the case law makes a standard doctrinal defense more challenging. Education is sui generis: it is in fact the only affirmative duty that has been placed on the state in most state constitutions. The argument's novelty then, derives from the fact that the state constitutional structure singles out education as an affirmative state obligation. Once that duty has been explicitly entrusted to the state, the debate about its implementation cannot ignore the transformation of state sovereignty that follows from the textual commitment. In fact, it is the failure to recognize how the uniformity clause argument crucially depends on the education clause for both its force and its limit that produces judicial rejection of the claim. For a discussion of the New Jersey Supreme Court's uniformity analysis, see infra text accompanying notes 135-47.
123. The Court stated: In part, local control means. the freedom to devote more money to the education of one's children. Equally important, however, is the opportunity it offers for participation in the decisionmaking process that determines how those local tax dollars will be spent. Each locality is free to tailor local programs to local needs. Pluralism also affords some opportunity for experimentation, innovation, and a healthy competition for educational excellence. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,49-50 (1973).
124. In a recent study, the authors found that socioeconomic segregation among local governments in metropolitan regions is continuing to increase. See TODD SWANSTROM ET AL., BROOKINGS INST., PULLING APART: ECONOMIC SEGREGATION AMONG SUBURBS AND CENTRAL CRNES IN MAJOR METROPOLITAN AREAS I (2004), available at http://www.brookings.edU/-/media/Files/rc/reports/2004/ iometropolitanpolicy-swanstrom/2004ioi8-econsegregation.pdf. Between 1990 and 2000, the percentage of communities in metropolitan areas that could be characterized as middle class suburbs decreased from 75% to 61%. Id. at 1, 9-10. Those suburbs falling out of middle class status became either "rich" or "poor" communities, thus creating larger numbers of both winners and losers in the local property tax system. Id. at 1.
125. Serrano v. Priest, 487 P.2d 1241, 1260 (Cal. 1971). The supreme courts of Arkansas, Tennessee, and Vermont share that view of local control. See DuPree v. Alma Sch. Dist. No. 30, 651 S.W.2d 90, 93 (Ark. 1983); Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 155 (Tenn. 1993); Brigham v. State, 692 A.2d 384,396 (Vt. 1997).
126. In Serrano, for instance, although the community of Baldwin Park taxed itself at a tax rate that was more than twice the tax rate levied on property in Beverly Hills, the revenues generated by that much higher tax rate were less than half the amount produced in Beverly Hills. See Serrano, 487 P.2d at 1260.
127. 677 N.E.2d 733,746 (Ohio 1997).
128. 119- Both state and federal laws impose numerous regulatory burdens on school districts. See BRIFFAULT & REYNOLDS, supra note 106, at 423-24; Michael D. Blanchard, The New Judicial Federalism: Deference Masquerading as Discourse and the Tyranny of the Locality in State Judicial Review of Education Finance, 60 U. PITT. L. REV. 231, 280-82 (1998); Charles F. Faber, Is Local Control of the Schools Still a Viable Option?, 14 HARV. J.L. & PUB. POL'Y 447,450-58 (1991).
129. For a discussion of how local control might be detached from property wealth, see Reynolds, Uniformity, supra note 8, at 1889-93. In fact, equalized, wealth-neutral school funding laws would provide more, rather than less, local control. See Dupree, 651 S.W.2d at 93; Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391,398 (Tex. 1989).
130. As one critic of the public schools recently argued, "[i]t is hard to imagine a more undemocratic system of public schooling than one that effectively limits to the affluent the opportunity to choose the best school for one's children." Paul R. Dimond, School Choice and the Democratic Ideal of Free Common Schools, in THE PUBLIC SCHOOLS 323, 323-24 (Susan Fuhrman & Marvin Lazerson eds., 2005).
131. For a more thorough review of the shortcomings of the local control argument, see Reynolds, Uniformity, supra note 8, at 1886-93.
132. The model is based on based on premises of economic theory and supports local funding and service provisions with as little centralization as possible, in order to preserve a range of options for citizens, also referred to as "consumer voters." See Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416, 419 (1956). The model has been criticized on many fronts. See, e.g., Richard Briffault, Our Localism: Part II-Localism and Legal Theory, 90 COLUM. L. REV. 346,399-435 (1990); Richard C. Schragger, Consuming Government, 101 MICH. L. REV. 1824,1825-27 (2003).
133. As Professor Jerry Frug sensibly noted, "[pjeople who live in unsafe neighborhoods or send their children to inadequate schools don't do so because they have taste for them If they had a choice , they would prefer better schools and less crime." Gerald Frug, City Services, 73 N.Y.TJ. L. REV. 23,31 (1998).
134. A Government Accountability Office study describes how, in Minnesota, the wealthiest 10% of school districts raised on average six times more revenue than the poorest 10%, even though the poorest districts' tax rates were about 25% higher. See U.S. GOV'T ACCOUNTABILITY OFFICE, SCHOOL FINANCE: THREE STATES' EXPERIENCES WITH EQUITY IN SCHOOL FUNDING 5 (1995).
135. That foundational principle of state and local government law was first articulated by the Supreme Court in Hunter v. City of Pittsburgh, xyj U.S. 161 (1907). See BRIFFAULT & REYNOLDS, supra note 106, at 70-98.
136. Campbell I, 907 P.2d 1238, 1270 (Wyo. 1995).
137. A lower court in the recent litigation over school funding in New York City said it most categorically: "[T]he State Constitution reposes responsibility to provide a sound basic education with the State, and if the State's subdivisions act to impede the delivery of a sound basic education it is the State's responsibility under the constitution to remove such impediments." Campaign for Fiscal Equity v. State, 719 N.Y.S.zd 475, 527-28 (N.Y. Sup. Ct. 2001); see also Claremont Sch. Dist. v. Governor (Claremont II), 703 A.2d 1353, 1360 (N.H. 1997) ("[T]he State cannot use local control as a justification for allowing the existence of educational services below the level of constitutional adequacy.").
138. For one of the many Supreme Court articulations of this principle, see United States v. Lopez, 514 U.S. 549, 552 (1995). "The powers delegated by the Constitution to the federal government are few and defined. Those which remain in the State governments are numerous and indefinite." Id. (quoting THE FEDERALIST No. 45 (James Madison)).
139. In the interpretation of a statute, "[t]he doctrine of expressio unius est exclusio alterius 'as applied to statutory interpretation creates a presumption that when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions.'" Silvers v. Sony Pictures Entm't, 402 F.3d 881, 885 (9th Cir. 2005) (citation omitted). Omissions from state constitutions carry no similar implication of prohibition or exclusion. Thus, a state constitutional provision authorizing the legislature to allow absentee voting for electors in military service was not deemed to implicitly prohibit the establishment of absentee voting for all state citizens. See Gangemi v. Berry, 134 A.2d 1,4 (N.J. 1957).
140. See BRIFFAULT & REYNOLDS, supra note 119, at 47-50.
141. See supra note 112.
142. See Claremont 11,703 A.2d at 1356.
143. A corollary principle is that the state cannot do indirectly what it is prohibited to do directly. If, for instance, a state constitution prohibits state adoption of a particular tax, the state cannot circumvent that limitation by authorizing one of its political subdivisions to implement the tax. See Chanin v. Bibb County, 216 S.E.2d 250, 253-54 Ga. 1975). Similarly, if the state is incapable of passing a certain type of statute or regulation, it cannot avoid that restriction on its sovereignty by purporting to authorize one of its political subdivisions to exercise the desired power. Ark. Game & Fish Comm'n v. Clark, 96 S.W.2d 699,700 (Ark. 1936); Clark v. Miller, 105 So. 502,504 (Miss. 1925).
144. 135- 303 A.2d273 (N.J. 1973).
145. See Liss ET AL., supra note 35, at 5-6 (listing six supreme court opinions on Robinson v. Cahill, followed by seventeen in the follow-up Abbott v. Burke litigation).
146. Robinson, 303 A.2d at 298.
147. The New Jersey Constitution provides that: "Property shall be assessed for taxes. by uniform rules " N.J. CONST, art. VIII, § 1, K 1. In its invalidation of the New Jersey statute, the lower court used the uniformity argument suggested here. See Robinson v. Cahill, 287 A.2d 187, 217 (N.J. Super. 1972), off d as modified, 303 A.2d 273,273.
148. 139- 3°3 A.2d at 288.
149. Id.
150. Id. The court essentially repeated that assertion at the end of its tax clause discussion, concluding that the uniformity provision had "nothing to do with the question whether the State may assign a State obligation to local government for discharge by it by use of revenues raised locally." Id.
151. 142- Id.
152. Id. at 295.
153. Id. at 297.
154. Id. at 298.
155. Id.
156. See supra text accompanying notes 35-46.
157. Professor James Ryan uses the term "political dynamite" to describe and reject efforts to limit or eliminate local property tax funding of schools. Ryan, supra note 9, at 1253. Though the term may accurately describe the legislative reality, the five states examined in this Article have made such changes to varying degrees.
158. See, e.g., Abbott IV, 693 A.2d 417, 445 (N.J. 1997) ("Only comprehensive and systemic relief will bring about enduring reform."); DeRolph IV, 780 N.E.2d 529, 533 (Ohio 2002) (reiterating that DeRolph I called for "a complete systematic overhaul" of the school-funding system in order to enact a truly "thorough and efficient" school-funding scheme).
159. An Illinois trial court is currently wrestling with this issue. The Chicago Urban League's lawsuit against the State of Illinois makes the uniformity of taxation argument that I propose in this Article. See Amended Complaint at 39-41, Chicago Urban League v. Illinois, No. 2008-CH-30490 (111. Cir. Ct. Oct. 14,2008).
160. See supra text accompanying notes 22-49.
161. DeRolph I,677 N.E.zd 733,745 (Ohio 1997).
162. 153- 585 P.2d 71,98 (Wash. 1978).
163. Id. In i960, special levies constituted a mere 6.8% of total school maintenance and operating costs in Washington. Id. By 1974/1975, it had increased to 25.6%. Id.
164. 606 P.2d 310,336 (Wyo. 1980). It has taken nearly thirty years for the legislature to implement that mandate. A second round of litigation began with Campbell 1,907 P.2d 1238 (Wyo. 1995). In 2008, the Wyoming Supreme Court concluded that the state school funding statute had finally met its full state funding standard of wealth neutrality. See Campbell County Sch. Dist. v. State (Campbell IV), i8t P.3d 43,73 (Wyo. 2008).
165. Brigham v. State, 692 A.2d 384,386 (Vt. 1997).
166. Id. at 392.
167. Id. at 397.
168. Opinion of the Justices, 765 A.2d 673, 676 (N.H. 2000).
169. Id.
170. 112 P.3d 923, 937 (Kan. 2005).
171. Petition for Declaratory Judgment, supra note 26, U 104.
172. See Rachel Tunistra, State's Unequal World of School Funding, SEATTLE TIMES, Oct. 21, 2006, atBi.
173. See supra note 26.
174. 138 P.30! 755,762 (Kan. 2006); see supra text accompanying notes 97-99.
175. Id. at 765.
176. Id. at 760,761.
177. Id. at 768-69 (Rosen, J., concurring); id. at 771 (Beier, J., concurring in part and dissenting in part).
178. Id. at 763 (majority opinion) (noting that the estimated annual increase in funding totals $755.6 million).
179. Id. at 765-66.
180. Id. at 766.
181. According to the Education Trust, which publishes an annual report on the revenue gaps between wealthy and poor school districts across the country, as of 2005 New Hampshire's system had the fourth worst gap between highest and lowest poverty districts. See ARROYO, supra note 2, at 9.
182. See, e.g., Opinion of the Justices, 765 A.2d 673, 676 (N.H. 2000) (concluding that the state education clause "imposes upon the State the exclusive obligation to fund a constitutionally adequate education," and insisting that "[t]he State may not shift any of this constitutional responsibility to local communities"); Claremont II, 703 A.2d 1353, 1357 (N.H. 1997) (ruling that property taxes levied for the funding of schools are state and not local taxes, and thus are invalid under the uniformity of taxation clause).
183. Opinion of the Justices, 765 A.2d at 677.
184. In Washakie County School District No. 1 v. Herschler, 606 P.2d 310, 332 (Wyo. 1980), the court first announced its wealth-neutral standard of full state funding. Fifteen years later, in Campbell I, 907 P.2d 1238 (Wyo. 1995), the court invalidated many of the post-Washakie legislative changes for failure to conform to the Washakie standard. In State v. Campbell County School District (Campbell II), the court recognized that the legislature had made great progress, but invalidated some funding formulas for their failure to "accurately reflect the cost" to the district. 19 P.3d 518, 540 (Wyo. 2001). On rehearing, the court tackled the school facilities funding problem. State v. Campbell County Sch. Dist. (Campbell III), 32 P.3d 325 (Wyo. 2001). Finally, in 2008, the court undertook a detailed review of numerous funding formulas, including maintenance and operations, at risk students, vocational education, small school adjustment, small district adjustment, and regional cost of living adjustment, terminating its jurisdiction and concluding that "the legislature has in place a thorough and efficient educational structure funded from state wealth as required by our state constitution." Campbell IV, 181 P.3d 43, 48 (Wyo. 2008).
185. Washakie, 606 P.2d at 336.
186. Campbell 1,907 P.2d at 1251 n.13.
187. Id. at 1268-69.
188. Id. at 1269-70.
189. Id. at 1274-5.
190. Id. at 1276-77.
191. Id. at 1276.
192. Campbell II, 19 P.3d 518 (Wyo. 2001). For instance, the court invalidated the state's funding formula for administrator salaries because it bore "little relationship to the actual costs incurred by any Wyoming school district and results in funding disparities for which the state has shown no compelling state interest." Id. at 543-44. A rehearing and follow-up opinion focused on the application of the wealth neutrality standard to facilities funding. Campbell III, 32 P.3d 325 (Wyo. 2001).
193. Campbell IV, 181 P.3d 43,50 (Wyo. 2008).
194. Id. at 49.
195. The Wyoming court has not indicated its opinion on local supplementation since Campbell I, when it expressed doubt about its legitimacy. In that case, the court suggested that local supplementation would be impermissible unless the legislature had a "compelling reason," 907 P.2d at 1274. In addition, it noted that using the district power equalizer on optional mills seemed permissible. Id. at 1274 n-4°- The court then went on to "inject two notes of caution," suggesting first that local enhancement levies may be unconstitutional in and of themselves. Id. at 1274. Second, it observed that because the "definition of a proper education is not static," the innovations and improvements funded by "local enhancements," might well become part of the state's constitutional obligation to all districts. Id.
196. 692 A.2d 384 (Vt. 1997).
197. Id. at 398.
198. See, e.g., Opinion of the Justices, 624 So. 2d 107, 114 (Ala. 1993);
199. Rose v. Council for Better Educ, Inc., 790 S.W.2d 186, 194 n.4 (Ky. 1989) (quoting language of a school funding statute); Abbott v. Burke, 710 A.2d 450, 478 (N.J. 1998);
200. Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 140 (Tenn. 1993); Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 397 (Tex. 1989). A dissenting judge in Rose pointed out the inconsistency of the majority's opinion. 790 S.W.2d at 220 (Vance, J., dissenting). Although the court had issued a mandate for a "substantially equal" education for all, at the same time, it had left in place a local financing system that would continue to provide wealth- based, and hence inherently unequal, educational opportunity. Id.;
201. see also Serrano v. Priest, 557 P.2d 929 (Cal. 1976). The Serrano court has interpreted the standard of substantial equality as requiring a range of no more than $100 in per capita dollars for operating expenses for all school districts. Id. at 939;
202. see also Hanif S.P. Hirji, Note, Inequalities in California's Public School System: the Undermining o/Serrano v. Priest and the Need for a Minimum Standards System of Education, 32 LOY. L.A. L. REV. 583 (1999). As the plaintiffs argued in the recently settled school funding litigation in California, however, equality of dollars may not produce equality of educational opportunity. See sources cited supra notes 11-13.
203. In an earlier article I explained how state courts that relied on equality to invalidate school finance statutes frequently failed to require equalization. See Reynolds, Uniformity, supra note 8, at 1851-56.
204. Brigham, 692 A.2d at 395. The court's caution here was that the state "cannot, however, abdicate the basic responsibility for education by passing it on to local governments, which are themselves creations of the state." Id.
205. One commentator has suggested that the rapidity and depth of the legislative overhaul of the school funding statute were due both to the independent, longstanding debate over school funding that predated the litigation, as well as to the fact that the Democratic Party controlled both legislative branches and the governor's mansion. See Michael A. Rebell & Jeffrey Metzler, Rapid Response, Radical Reform: The Story of School Finance Litigation in Vermont, 31 J. L. * EDUC. 167,180 (2002).
206. For evaluation of Act 60, the legislature's original response to Brigham, see Reynolds, Skybox Schools, supra note 7, at 792-94.
207. Other funding sources include the state sales tax and proceeds from a new lottery. See id. at 795-96 n.207.
208. VT. STAT. ANN. tit. 32, § 5401(7), (10) (2007). Professor Kirk Stark made the same proposal in his student law review note. See Kirk J. Stark, Note, Rethinking Statewide Taxation of Nonresidential Property for Public Schools, 102 YALE L.J. 805,806-07 (J992)-
209. The properties most responsible for the extreme variations in school district wealth, local property tax rates, and widely disparate school operating budgets were the ski and summer homes that created Vermont's so-called "gold towns." See Town of Killington v. State, 776 A.2d 395, 396 (Vt. 2001).
210. The rate is currently set at $1.59 per $100 of equalized assessed valuation. See VT. STAT. ANN. tit. 32, § 5402(a)(1).
211. The rate of $1.10 is lower than the rate for nonresidential property but subject to increase upon voter approval. Id. § 5402(a)(2). In addition, categorical grants are distributed across the state for the costs associated with special education, transportation, small school size, state-placed students, technical education, and early education. See VT. DEP'T OF EDUC, OVERVIEW OF VERMONT'S EDUCATION FUNDING SYSTEM UNDER ACT 68 & ACT 130, at 1 (2005). Thus, the "equality" that Vermont seeks is not a fixed per capita student equality, but rather a system that adjusts funding in accordance with the special needs of each district's children.
212. A district power equalizer means that the state guarantees that identical taxpayer efforts will generate identical school revenues, irrespective of the value of the property on which the tax is levied. For wealthy districts, then, the levy is likely to require transfer of excess revenues to the state. In poor districts, in contrast, state contributions will be needed to make up for the districts' low property value. For an explanation of the district power equalizer, see Enrich, supra note 10, at 110-11, and Kirk Vandersall, Pasf-Brown School Finance Reform, in STRATEGIES FOR SCHOOL EQUITY 17, 22 n.i (Marilyn Gittell ed., 1998).
213. This figure is currently set by law at $6800 per pupil, with additional funds allocated for district and student special needs. See VT. STAT. ANN. tit. 16, § 4011.
214. For a detailed description of the Vermont provisions, see Reynolds, Skybox Schools, supra note 7, at 794-95.
215. Id.
216. Id.
217. Moreover, if a district's supplemental spending reaches a level of 125% of the state- guaranteed amount, the town will be deemed an "excess spending municipality" and will be required to make additional tax payments to the state. See VT. STAT. ANN. tit. 32, § 5401(12). Notwithstanding these equalizing provisions, it is not surprising that the Vermont statute continues to result in wide ranges in budgets between wealthy and poor districts. Because increasing spending requires voter approval to impose a higher tax rate, it is likely to be an option chosen less frequently by poorer districts. And in fact, the gap in Vermont remains high. See infra note 220.
218. See supra note 196.
219. Campbell 1,907 P.2d 1238, 1246 (Wyo. 1195).
220. Although it is generally true that the differences between adequacy and equality are not sharp, see supra note 9, in the full state funding context the two theories have put courts and their state funding laws on very different paths.
221. The sentiment of the Kansas court is typical: "We fully acknowledge that once the legislature has provided suitable funding for the state school system, there may be nothing in the constitution that prevents the legislature from allowing school districts to raise additional funds for enhancements to the constitutionally adequate education already provided." Montoy v. State, 112 P.3d. 923, 937 (Kan. 2005). The supreme courts of New Hampshire and Vermont agree. See Claremont II, 703 A.2d 1353, 1360 (N.H. 1997) ("Our decision does not prevent the legislature from authorizing local school districts to dedicate additional resources to their schools or to develop educational programs beyond those required for a constitutionally adequate public education."); Brigham v. State, 692 A.2d 384, 397 (Vt. 1997) ("Equal opportunity does not necessarily prohibit cities and towns from spending more on education if they choose.").
222. For a discussion of the incentives that influence the course of funding in adequacy states, see Ryan, supra note 9, at 1252-55. These incentives are not limited exclusively to the adequacy context. In any funding system that preserves the local property tax as a school funding source, wealthy districts will always push to preserve as much of their wealth as possible from redistribution by the state because they rationally prefer to tax their own high wealth for their own use rather than have the state tax it and redistribute.
223. Litigation in Washington is ongoing. See supra text accompanying notes 23-26.
224. The court in Kansas terminated its involvement in the case notwithstanding statutory provisions that did not conform to the court's standard of wealth neutrality. See supra text accompanying notes 97-99.
225. U.S. GENERAL ACCOUNTING OFFICE, SCHOOL FINANCE: STATE EFFORTS TO EQUALIZE FUNDING BETWEEN WEALTHY AND POOR SCHOOL DISTRICTS 14 (1998).
226. N.H. STATE DEPT. OF EDUC, COST PER PUPIL BY DISTRICT, 2006-2007, at 1-4 (2008), available at http://www.ed.state.nh.us/education/data/ ReportsandStatistics/FinancialReports/CostPerPupil/CostPerPupil2oo6-2ck7/ CostPerPupil20o6-2oo7.pdf.
227. The statute has a two year transition period and does not specify a state funding source for the increased revenues, suggesting a rocky road ahead for the New Hampshire legislature and governor. See Sarah Liebowitz, Lynch Lets School Plan Go into Law, CONCORD MONITOR, June 10, 2008, available at http://www.concordmonitor.com/apps/pbcs.dll/ article7AIDs/20o8o6io/FRONTPAGE/806100306. According to the new state law, the cost of an adequate education is set at $3450 per child, with additional per capita grants of up to another $3450 per child, depending on the district's total percentage of poor children. If 48% or more of students in a district qualify for free lunch, the district will receive an additional per capita payment of $3450. At the low end, if less than 12% of the population is low income, the district receives an additional $431 per pupil. See N.H. REV. STAT. ANN. § 198:40-8(1) (2009). Per student distributions are also given for non-English speakers ($675), id. §198:40-8(11), and special education children ($1856), id. §198:40-8(111).
228. Liebowitz, supra note 214.
229. See Norma Love, N.H. School Funding Plan Becomes Law, TIMES ARGUS (Montpelier-Barre, Vt.), June 10, 2008, available at http://www.timesargus.com/apps/pbcs.du/article7AID72oo8o6io/ NEWS02/806100334/1003/NEWS0.
230. Of course, the wealthy districts in New Hampshire will also contribute to the funding of the adequate education, but the fact remains that the cost of an adequate education, which the wealthy districts previously funded almost entirely on their own, will now be funded by the state as a whole, thus resulting in a redistribution from the state to the wealthy districts. At the same time, that redistribution means that the high property wealth in those districts now has a certain untapped taxing potential that reflects the cost that has been shifted from the local to the state level.
231. Claremont II, 703 A.2d 1353, 1356-57 (N.H. 1997) (noting tax rate differential of 400% between wealthy and poor districts).
232. Vermont's system applies a district power equalizer to all local supplementation beyond the state guaranteed amount. See supra text accompanying notes 187-204.
233. According to that report: In Vermont, the funding gap has grown by more than $2,000 per student in recent years, even though the state was under court order to provide equitable funding to poor districts. In 1999, Vermont ensured that high-poverty districts had $2,193 more per student. By 2005, high-poverty districts in Vermont were receiving $264 less per student than low poverty districts. ARROYO, supra note 2, at 3.
234. See DARCY ROLLINS SAAS, NEW ENO. PUB. POLICY CTR., DISCUSSION PAPER NO. 07-1, SCHOOL FINANCE IN VERMONT: BALANCING EQUAL EDUCATION AND FAIR TAX BURDENS 9 (2007), available at http://www.bos.frb.org/economic/neppc/dp/2007/neppcdpo701.pdf.
235. To the extent that poorer districts are less likely to adopt tax rate increases than others, of course, the districts with greater tolerance for higher taxation, and hence, higher school revenues, are likely to be the wealthier districts.
236. For instance, the Illinois Constitution states that "the State has the primary responsibility for financing the system of public education," suggesting some constitutional protection of local funding. III. CONST, art. X, § 1.
237. As Richard Briffault has noted, adequacy is "totally free-floating. It requires difficult and deeply contestable determinations about the purposes of education, how to achieve it, and what resources are necessary to do so. As opposed to equity, adequacy would appear to lack 'judicially manageable standards' and therefore be a poor candidate for judicial enforcement." Briffault, supra note 9, at 45; see also Michael A. Rebell, Fiscal Equity in Education: Deconstructing the Reigning Myths and Facing Reality, 21 N.Y.U. REV. L. & Soc. CHANGE 691,705 (1995).
238. See Campbell 1,907 P.2d 1238,1274 (Wyo. 1995).
239. See supra text accompanying notes 21-61.
240. Jeffrey Metzler has argued that "adoption of a more progressive school finance formula will not necessarily result in a more equitable allocation of education resources. To achieve this latter goal, courts and reformers must dig deeper, and they must focus on changing the political dynamics that perpetuate the inequitable equilibrium of school finance." Metzler, supra note 14, at 564. Severance of the link between property district wealth and school revenues would certainly require a profound change in the political dynamics of the state. Without such a paradigm shift, according to Metzler, school funding reform will continue to drift back to the point of "inequitable equilibrium. [that] permits wealthy districts, even at lower tax rates, to spend more per student than poor districts." Id.
241. See Briffault, supra note 9, at 44-45; William H. Clune, New Answers to Hard Questions Posed by Rodriquez: Ending the Separation of School Finance and Educational Policy by Bridging the Gap Between Wrong and Remedy, 24 CONN. L. REV. 721, 721-32 (1992) (arguing that equalization is a more manageable judicial norm than adequacy); Ryan, supra note 9, at 1255-59.
242. Although it would be foolish to discount the difficulty of the political process that would be required to make that shift, the Wyoming experience shows that judicial insistence on real wealth neutrality can produce a legislative funding formula that bases revenue allocation exclusively on cost differentials. See supra text accompanying notes 176-83.
243. Abbott IV, 693 A.2d 417,445 (N.J. 1997).
244. The Texas Supreme Court's level of frustration with the lack of rationality of the state finance scheme is not unusual, describing it as "complex and unwieldy," the result of "crisis management" rather than deliberate policy. See Edgewood Indep. Sch. Dist. v. Meno (Edgewood IV), 917 S.W.2d 717,726 (Tex. 1995).
245. See Reynolds, Skybox Schools, supra note 7, at 761 n. 23,768-71.
246. This claim was first made in what has become known simply as the Coleman Report. See 1 JAMES S. COLEMAN ET AL., EQUALITY OF EDUCATIONAL OPPORTUNITY 312 (1966). One commentator described the author of the report as casting "the longest shadow in modern American education." PETER SCHRAG, FINAL TEST 205 (2003). For a description of the report and how it has influenced the debate over the relationship between education spending and achievement, see id. at 205-30. One recent study along the same lines concluded that the socioeconomic status of a student's peers predicts more than three-fourths of the difference in academic achievement among students. See Russell W. Rumberger & Gregory J. Palardy, Does Resegregation Matter?: The Impact of Social Composition on Academic Achievement in Southern High Schools, in SCHOOL RESEGREGATION: MUST THE SOUTH TURN BACK? 127,127 (John Charles Boger & Gary Orfield eds., 2005).
247. The State of Illinois reports that New Trier High School's annual operating expenditures averaged $16,856 per student in 2007. Interactive Illinois Report Card, http://iirc.niu.edu/School.aspx?source= Fiances&schoolID=i40i62030i70002&level=S (last visited Mar. 23, 2009) (click on "District Finances" tab).
248. U.S. CENSUS BUREAU, PUB. No. SF3pi6o& 395i9, CENSUS 2000 SUMMARY FILE 3,11 (2002).
249. The New York Court of Appeals recognized, but did not condemn, this state of affairs when it ordered the removal of the budgets of the top half (in terms of revenue) of New York school districts from a computation of the constitutionally required per capita revenue amount. Campaign for Fiscal Equity, Inc. v. State, 861 N.E.2d 50, 54 (N.Y. 2006). The "cost filter" is required, the court noted, because "not all schools operate in a manner that is economical." Id.
250. See Reynolds, Skybox Schools, supra note 7, at 788-97,804-07.
251. See Schragger, supra note 123, at 1847. Professor Schragger wondered why taxpayers seem to object more strenuously to state redistribution of local taxes than to the far greater levels of redistribution that occurs with state and federal taxation schemes. Though that phenomenon is described from many different doctrinal perspectives, the bottom line is the same: whether labeled as the endowment effect, see, e.g., Russell Korobkin, The Endowment Effect and Legal Analysis, 97 Nw. U. L. REV. 1227,1228 (2003) (describing endowment effect as "the principle that people tend to value goods more when they own them than when they do not"), the principle of reciprocity, see, e.g., Christopher C Fennell & Lee Anne Fennell, Fear and Greed in Tax Policy: A Qualitative Research Agenda, 13 WASH. U. J.L. & POL'Y 75, 122 (2003) (noting that if the level at which the government collects the revenues is different from the level at which the government provides the benefit, a less tangible sense of reciprocity contributes to citizen opposition), or the homevoter hypothesis, see WILLIAM A. FISCHEL, THE HOMEVOTER HYPOTHESIS: How HOME VALUES INFLUENCE LOCAL GOVERNMENT TAXATION, SCHOOL FINANCE, AND LAND-USE POLICIES 120 (2001) (noting that citizens view local taxes differently than taxes generated at higher levels of government because "Locals View the Property Tax Base as Their Own"), the theories explain why we should not be surprised to find an important link between the level of taxation power and the taxpayers' sense of ownership of those revenues.
252. The negative comparisons between students in the U.S. and around the world are multiple. To put it succinctly: "[0]n virtually every international assessment of academic proficiency, American secondary school students' performance varies from mediocre to poor." See ALLIANCE FOR EXCELLENT EDUC, FACT SHEET: HOW DOES THE UNITED STATES STACK UP? I (2008), available at http://www.all4ed.org/files/ IntlC0mp-FactSheet.pdf. A report by the Organisation for Economic Cooperation and Development and UNESCO Institute for Statistics, Literacy Skills for the World of Tomorrow-Further Results from PISA 2000, compared international educational spending with international educational performance and found that although the United States spends more per student than any country except Norway and Luxembourg, its student achievement levels lag well behind. See ORG. FOR ECON. COOPERATION & DEV. & UNESCO, LITERACY SKILLS FOR THE WORLD OF TOMORROW-FURTHER RESULTS FROM PISA 2000, at 111-14 (2003); see also IRWIN KIRSCH ET AL., EDUC. TESTING SERVICE, AMERICA'S PERFECT STORM: THREE FORCES CHANGING OUR NATION'S FUTURE II (2007) (claiming that the changing economy, the wide range of skill levels among the population, and changing demographics as putting the country on a crash course for greater inequality and social instability); Matthew Ladner & Matthew J. Brouillette, The Impact of Charter Schools and Public School Choice on Public School Districts in Wayne County, Michigan, 45 How. L.J. 395, 401 (2002) (describing international studies that confirm that other countries "spend much less and get much better results").
253. The Supreme Court of New Jersey described how inadequate education has an impact on the entire state and its economy-not only on its social and cultural fabric, but on its material well-being, on its jobs, industry, and business. Economists and business leaders say that our state's economic well-being is dependent on more skilled workers, technically proficient workers, literate and well-educated citizens. And they point to the urban poor as an integral part of our future economic strength So it is not just that their future depends on the State, the state's future depends on them. Abbott II, 575 A.2d 359,412 (N.J. 1990). For commentary on the importance of broadening the base of support of education beyond the self-interested parent group, see generally STRATEGIES FOR SCHOOL EQUITY 131-63 (Marilyn J. Gittell ed., 1998) and Enrich, supra note 10, at 110-11.
254. Opponents of equalization of school finance repeatedly make the "dumbing down" argument that equalization would bring down the quality of education in the state's top schools. It is true that the cost of funding all districts at the same level as the state's highest spending districts would be enormous. In the case of Texas, for instance, the state's Attorney General estimated it would cost an amount equal to four times the total state budget. Edgewood Indep. Sch. Dist. v. Kirby (Edgewood IT), 804 S.W.2d 491, 495-96 (Tex. 1991). Similarly, a study prepared for litigation in Alabama found that raising all per-pupil revenues to the level of the highest spending district would require an increase of $1 billion over the state's $2.4 billion education budget. SCHRAG, supra note 233, at 210. In another article, I responded to the "dumbing down" objection. Reynolds, Skybox Schools, supra note 7, at 777-78. It is also worth noting that the phenomenon appears to have made inroads in public education even in the absence of wealth neutral school finance, such that it would be a mistake to find a causal relationship between the perceived dumbing down and full state funding. See Ryan, supra note 9, at 1247-50 (noting how the federal No Child Left Behind law creates incentives for states to reduce expectations and standards).
255. Ryan, supra note 5, at 271.
256. The percentage of household comprised of married couples with children has decreased by almost half over the past few decades, dropping from 40% in 1970 to 24% in 2000, with the prediction that the number will fall below 20% in 2010. CIYATA D. COLEMAN, DEMOGRAPHIC AND ECONOMIC CHARACTERISTICS OF THE AMERICAN FAMILY 2 (2003), available at http://www.irs.gov/pub/irs-soi/ coleman.pdf.
257. See Laurie Reynolds. Taxes, Fees, Assessments, Dues, and the 'Get What You Pay For' Model of Local Government, 56 FLA. L. REV. 373, 438-40 (2004) (analyzing government's shift from general taxation to more particularized nontax revenue devices and how it reflects antigovernment and antitaxation sentiments).
258. The work of Professor Myron Orfield has shown that all major metropolitan regions display a remarkably similar distribution of population and wealth: 20% to 40% live in central cities; 25% to 30% in older declining suburbs; 10% to 15% in low tax base suburbs; and the remainder, the favored quarter, in high tax base, wealthy suburbs. See MYRON ORFIELD, CHICAGO METROPOLITICS: A REGIONAL AGENDA FOR MEMBERS OF THE U.S. CONGRESS 27 (1998); MYRON ORFIELD, METROPOLITICS 2-8 (Rev. ed. 1997); Myron Orfield, Conflict or Consensus? Forty Years of Minnesota Metropolitan Politics, BROOKINGS REV., Fall 1998, at 31, 34. If his analysis is correct, and the communities who benefit from local control over local property tax revenues are in fact few in number, preservation of local revenue raising may no longer be a political "sacred cow." See Frances C. Fowler, Converging Forces: Understanding the Growth of State Authority over Education, in AM. EDUC. FIN. ASS'N, BALANCING LOCAL CONTROL AND STATE RESPONSIBILITY FOR K-12 EDUCATION 123, 123 (Neil D. Theobald & Betty Malen eds., 2000).
259. 246- According to a report by the Organisation for Economic Cooperation and Development, wealth is more predictive of educational achievement in the United States than in any other developed country in the world. See ORG. FOR ECON. COOPERATION & DEV., KNOWLEDGE AND SKILLS FOR LIFE: FIRST RESULTS FROM PISA 2000, at 286, app. B, tbl.6.2 (2001). For evaluation of the forces that push towards wealth inequality in school funding in the United States, see Enrich, supra note 10, at 155-63.