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When courts run public schools

Take a look at New Jersey.


The state Supreme Court may have gone quiet again after its terse announcement Jan. 22 that it's getting back in the Lake View game, but if any lawmakers, educators or taxpayers have a hard time imagining what the future may hold, they need only Google the words "New Jersey" and "Abbott." They'll be directed to, among other web sites, that of the Education Law Center in Newark, a non-profit organization that's been a driving force in the state's decades-long school funding lawsuit, Abbott v. Burke. The ELC's site gives the entire history of the suit, which began in 1984 as an offshoot of an earlier lawsuit filed in 1975. It's a story those involved with Arkansas's court case should pay attention to, said Paul Grier, director of legal services for the Arkansas Education Association. "You can look at what happened in New Jersey in the last 10 years and see what's going to happen here," he said. "If history's any lesson, the legislature is going to come up short." Both New Jersey lawsuits, like Arkansas's Lake View case, challenged the way the state funds schools, although in New Jersey's case, only the 30 poorest, lowest achieving urban school districts are involved. The real lesson, however, is in the 20-plus years of back-and-forth between the court and legislature that's led to an unprecedented, vast and expensive remedy being ordered by the court. It began in 1976, when the court rejected the legislature's first attempt at fixing the system because lawmakers didn't fund the plan they adopted. The legislature missed a July 1 deadline to pass a funding mechanism, and the court shut down the state's schools. A week later, lawmakers passed New Jersey's first income tax. That first fix and a later major overhaul were eventually thrown out as unconstitutional, thanks largely to the Education Law Center's dogged advocacy of the 30 so-called Abbott districts. Finally, in 1998, the Supreme Court ordered a sweeping package of entitlements for the 350,000 kids in Abbott districts. The state had to bring per-pupil spending in those districts up to the average per-pupil spending of the state's wealthiest 120 districts, which bought more teachers, raised urban teacher salaries to equal suburban ones, paid for health and social services, technology, after-school and other programs. The state pays for all-day preschool for 3- and 4-year-olds, with teachers who earn just as much as their K-12 counterparts. The state must pay to replace about half the schools in the Abbott districts, and comprehensively renovate the rest. And if an Abbott district can demonstrate a need for a program that isn't on the court's list, the state has to pay for that as well. The bottom line: New Jersey sent about $1.3 billion in state aid to those 30 districts in 1991. A decade later, the figure was $3.1 billion - a 138 percent increase, compared with about a 50 percent increase for the rest of the state's 600-plus districts. The Abbott districts' local revenue was frozen at $550 million, the 1991 level. The ELC's director of school reform initiatives, Steven Block, says the extra help is beginning to produce results in the Abbott districts: for instance, the rate of fourth-graders who fail the literacy portion of the state's standardized test has fallen from 70 percent to 35 percent in the last few years. But he acknowledged that because so much state money has gone to the poorest districts, those in the middle - not suburban wealthy, not Abbott-poor - are getting squeezed. Perhaps the New Jersey case seems a bit far-fetched for crystal-ball gazing. If so, take a look at Texas. The court/legislature struggle there has produced a solution some Arkansas legislators might actually be able to get behind. The Texas Supreme Court threw out the state's funding system in 1984, ruling that its heavy reliance on local property taxes was inherently unfair to poorer districts. Four unproductive special sessions later, a court-appointed special master recommended the justices order a Robin Hood solution, with the state taking money from rich districts and giving it to the less affluent schools. Before the court could act, the legislature passed a bill to add $528 million to the education budget - but didn't alter the basic funding structure. Sound familiar? The Texas court didn't bite. It ruled that simply adding more money didn't produce a fair funding system. Next, the legislature tried consolidating the more than 1,000 school districts into 138 county education units, at the court's suggestion. Then the wealthy districts sued, and that plan eventually was thrown out as well. Finally, in 1993, lawmakers passed a plan that gave the 110 richest districts five options for sharing the wealth, including merging with a poorer district, transferring property to a poorer district's tax rolls and educating children from poorer districts at no charge. Nevada's Supreme Court took a simpler approach to breaking school-funding-reform impasse there. When the legislature couldn't scrape up the 2/3 majority needed to pass a tax increase for schools, the court ruled that they didn't have to: in times of "constitutional crisis," a simple majority would do. That's a ruling Bill Kopsky, director of the Arkansas Public Policy Panel, said would help immensely in Arkansas, where an increase in any tax except the sales tax requires a supermajority. "We could easily pass a progressive tax program with a simple majority," he said. The Arkansas Supreme Court's appointing a special master doesn't mean it will end up taking a more active role in mandating specific remedies. In fact, several of the justices said during the Jan. 22 hearing that they specifically wanted to avoid crossing that line if the legislature court be spurred to compliance another way. "I don't want to run your school district," Justice Donald L. Corbin told attorney David Matthews, who represents the Rogers and Springdale districts in the Lake View case. "But I'm ready to do something." The court did reserve the right to "something" after the master finishes his or her mission, concluding its one-paragraph order on Jan. 22, "This court will consider and decide what remedy or writ is proper to assure compliance." John DiPippa, associate dean of the UALR Bowen School of Law, said he thinks it's unlikely Arkansas will see the same degree of judicial activism as in the New Jersey case. It would take the legislature refusing to comply with the special master's recommendation. "I'm confident that won't happen," he said. So far, the court's taken the conservative route, opting not to go with Lake View attorney Bill Lewellen's motion to either stop funding schools until the Lake View requirements are met, or to take enough money from other state agencies to adequately fund education. Matthews wouldn't comment on what he thinks will happen next. But, he said, Arkansas's lawmakers would be wise to learn from New Jersey's and other states' experience. "The legislature should have been paying attention to that from the get-go."

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