What Business Leaders Need to Know about the Courts and School Finance Alfred A. Lindseth Sutherland, Asbill & Brennan LLP

Q: Based on your best guess, what is the average amount of money spent each year for a child in public schools in your school district (with prompt)? Source: Howell & West, School Spending, Education Next, Summer, 2008, p. 39.

Q: Based on your best guess, what is the average annual salary of a public school teacher in your state? Source: Howell & West, School Spending, Education Next, Summer, 2008, p. 39.

Types of Litigation Federal Court lawsuits to desegregate school districts in south and north. State Court “equity” lawsuits designed to equalize spending between school districts of a state. State Court educational “adequacy”’ lawsuits to require states to fulfill their obligations under the “education clause” of the state constitution.

Examples of Constitutional Language Provide a system of “free common schools” (New York) Shall “cherish the interests of literature and the sciences” (Massachusetts) Make “suitable provision for finance of the educational interests of the state” (Kansas) Establish a “complete and uniform” and “thorough and efficient system” (Wyoming)

Adequacy Cases Dismissed on Separation of Powers Grounds Florida Illinois Nebraska Oklahoma Oregon Colorado Alabama Rhode island Pennsylvania Ohio Kentucky (II)

Plaintiffs’ Victories (mostly from 1989 to 2005) Arizona (facilities) Arkansas Connecticut Kansas Montana New Jersey Kentucky (I) Maryland (Consent Order) New York North Carolina Wyoming Massachusetts (I) Vermont New Hampshire Washington*

Defense Victories (mostly since 2005) Arizona (operational expenses) Texas Alaska South Carolina Massachusetts (II) Louisiana South Dakota Missouri

Did students in states which implemented large scale court- ordered funding increases for K-12 education significantly improve their performance, relative to students in other states, during the period of the remedy?

Per Pupil Expenditures Wyoming versus its Neighbors, 2007* *Adjusted for regional cost differences Source: 2010 Quality Counts Issue, Education Week, Jan. 14, 2010, p. 48

New Jersey and National NAEP Trends for Black Students, 4 th grade reading, 1992 to 2007

Massachusetts and National NAEP Trends for White Students, 1992 to 2007

Massachusetts and National NAEP Trends for Black Students, 1992 to 2007

Courts have Refused to Consider other Causes of Poor Performance: Teacher compensation unrelated to success in classroom Restrictive union work rules Tenure rules affecting ability to terminate incompetent teachers Waste and inefficiency in local operations Perverse incentives

The Time is Ripe for True Reform Court orders are no longer as dominant as they were in many states Fiscal constraints demand solutions, other than increased spending The Obama administration is supporting more innovative approaches