Reading the State School Finance Litigation Tea Leaves

The “broken system” theory suggests that state legislatures have a duty, per the text of state constitutions, to provide a rational “system” of public schools. Photo by Jane M. Sawyer.

Ever since the Supreme Court held in San Antonio v. Rodriguez that education is not a fundamental right protected under the United States Constitution,[1] legal efforts to advance the educational plight of disadvantaged school children have taken to state courts.[2] School finance lawsuits have now been litigated in 45 states,[3] with a considerable financial impact on classrooms across the country. In New York alone, for example, the plaintiffs’ victory in the landmark case Campaign for Fiscal Equity, Inc. v. State[4] yielded a settlement that would increase statewide education funding by $7 billion over a four-year period.[5]

These lawsuits have been premised on two basic legal theories: the equity theory and the adequacy theory. Plaintiffs suing under the equity theory argue that state school finance systems violate state constitutional guarantees of equal protection, insofar as they distribute resources to public schools in a disparate manner. By contrast, plaintiffs suing under the adequacy theory assert that state constitutions confer upon children the right to some minimum level of education and associated school funding levels that have been denied.

The conventional wisdom holds that the adequacy theory arose around 1989,[6] largely as a response to the low rate of success of litigation brought under the equity approach.[7] As a general matter, the adequacy theory has met with greater judicial solicitude than the equity theory, at least at the liability stage. Of the twenty-two state supreme courts that have considered equity challenges as of 1988, only seven invalidated school finance systems on equal protection grounds..[8] By contrast, of the thirty-three state courts to rule on adequacy arguments, twenty-two—fully two thirds— have found state funding schemes unconstitutional.[9]

Recent trends suggest, however, that the adequacy era of education finance litigation may be falling on hard times. Since 2009, six of the eleven state courts to issue decisions in adequacy cases have ruled against plaintiffs.[10] . Only hindsight, of course, will reveal conclusively whether these recent results are indicative of a permanent shift disfavoring adequacy claims, or whether the 2009-2010 period is just a temporary bump in the road for adequacy litigants. But plaintiffs in California have already decided to pursue a different legal strategy, premised on what I call the “broken system” cause of action.[11] Their decision signals that plaintiff groups may be searching for a new theory of their own accord, not content to wait for courts to announce whether the adequacy theory still has legs.

In light of these recent developments, this essay describes the journey of state-level school finance litigation in the aftermath of Rodriguez, examines the current state of adequacy and equity litigation, and evaluates the possibility that a new wave of “broken system” claims may be on the horizon. Unlike the adequacy theory, the “broken system” theory does not ask a court to define a particular quality of education or level of school funding that is promised under the state constitution. Instead, it suggests that state legislatures have a duty, per the text of state constitutions, to provide a “system” of public schools. The theory then argues that the duty to provide a “system” of public schools requires a state to finance its schools in a manner that is rationally calculated to meet the state’s academic content standards. To be sure, one plausible interpretation of the recent record of adequacy claims is that the state courts may simply be growing increasingly reluctant to grant relief to education plaintiffs under any circumstances, especially in these difficult economic times. Thus, in addition to describing the legal basis for this broken system theory, I also discuss the likelihood that state courts will actually accept it.

I. How We Got Here: Three “Waves” of School Finance Litigation

Under the conventional narrative, school finance litigation in America has proceeded in three “waves,” covering two distinct theories of legal action. The first two waves comprise the equity theory of school finance lawsuits, premised on the idea that the inequitable distribution of school resources violates the guarantee of equal protection under the law.[12] The first wave asserted violations of the federal Equal Protection Clause, and ended abruptly with the Supreme Court’s dual declaration in Rodriguez that education is not a fundamental right and that wealth is not a suspect class.[13]

The second wave commenced thereafter in state courts, based on state equal protection guarantees. However, these claims were met largely with skepticism, primarily due to conceptual difficulties over what kind of “equality” judges should be required to enforce.[14] For instance, some advocates argued that equal funding alone would not be enough, and that disadvantaged children actually need additional resources to reach socially desirable levels of educational success—a kind of “vertical equity” that distributes resources according to student needs.[15] Vertical equity, however, is at least facially contradictory to state equal protection guarantees. Further, it presents serious problems for judicial administration: How much more should student X get than student Y in order to be considered “equal?”

Proponents of the equity theory in California’s famed Serrano v. Priest litigation responded to these concerns by arguing for a definition of equity known as “fiscal neutrality.”[16] Under this concept, revenues available to a school district should depend on the wealth of the state as a whole, and not on the property wealth of the individual district.[17] Although this theory was persuasive at the liability stage, it led to a severe post-remedy political problem: wealthy tax payers responded to the state supreme court’s order in Serrano I to redistribute funding among school districts by cutting statewide property tax rates, and effectively reducing the quality of education provided to all children.[18] As the California Supreme Court itself recognized,

What the Serrano court imposed as a California constitutional requirement is that there must be uniformity of treatment between the children of the various school districts in the State . . . . If such uniformity of treatment were to result in all children being provided a low-quality educational program, or even a clearly inadequate educational program, the California Constitution would be satisfied.[19]

Advocates then turned to a third “adequacy” wave of school finance litigation, distinguished by its focus not on equality of educational opportunity but rather on the state’s duty to provide some absolute, adequate level of education to all.[20] Rather than relying on state equal protection clauses, the legal hook for adequacy lawsuits is the education clause present in state constitutions that typically requires states to provide a system of public schools. These education clauses are often characterized by adjectives such as “thorough” and “efficient.”[21] Adequacy theory litigators argue that such clauses compel the state to do more than simply open up schools and demand student attendance; the state must ensure a meaningful level of education in its schools.

The principal advantage of the adequacy theory is that a court-ordered remedy does not need to define the thorny concept of “equality” with regard to school resources.[22] Of course, the theory does ask a court to fashion a definition of educational “adequacy” instead, which may pose different challenges from the standpoint of institutional judicial competency. Indeed, a number of courts have ruled against plaintiffs on their adequacy claims on the basis that it is the state legislature’s responsibility to determine appropriate qualitative levels of education for the state’s children, and that the judiciary should stay out of that determination under separation of powers norms.[23]

Yet, the majority of state courts to hear adequacy claims have been willing to define a standard for educational adequacy. The theory’s superior track record suggests that the task of defining “adequacy” is a more palatable one for the courts than defining “equity.” The chief reason for this may be a practical one: adequacy litigation, unlike equity litigation, only implicates a floor for statewide educational funding—it does not demand both a floor and a ceiling. As a result, the adequacy theory does not necessarily confront the same potential political backlash from wealthy taxpayers who, in an equity regime, may be discouraged from spending the amount of money they would prefer in their own school districts by the prospect of their tax dollars being redistributed to lower-income neighborhoods.[24] In contrast, under an adequacy regime, there is nothing stopping a wealthy school district from increasing its funding levels above the “adequate” baseline.

II. Recent Trends in School Finance Lawsuits: Trouble for Adequacy Litigants

Despite the relative advantages enjoyed by adequacy litigants over the equity litigants, recent state supreme court decisions indicate that the adequacy theory may be losing momentum. Plaintiffs have experienced adverse outcomes in six of the eleven adequacy decisions handed down since the start of 2009. The Indiana Supreme Court held that the education clause of the state constitution “does not impose upon government an affirmative duty to achieve any particular standard of resulting educational quality. . . . And in the absence of such a constitutional duty, there is no basis for the judiciary to evaluate whether it has been breached.”[25] Courts in three other states—Oregon, Missouri, and South Dakota—ruled that their respective constitutions did in fact impose some minimum school funding requirement, but that the requisite funding level was so minimal that the states had already fulfilled their obligations.[26] The Kansas Supreme Court rejected a motion by plaintiffs to reopen the court’s jurisdiction over the state legislature in light of recent statewide school funding cuts, despite the fact that those cuts may have violated the court’s prior funding orders issued in 2006.[27] And in New Jersey, the state’s high court ended its historic twenty-four year jurisdiction (spanning twenty discrete decisions), releasing the state from its duty to comply with its prior funding orders in low-income districts across the state.[28]

The question now is whether these outcomes represent idiosyncratic decisions issued by state courts that are distinguishable from pro-plaintiff rulings on the facts (or perhaps are grounded in economic realities as opposed to legal doctrine), or whether they signal a common move among judges away from the adequacy theory. There are reasons why both stories may be accurate. It may not be a coincidence, for instance, that the recent decline in success rates experienced by adequacy advocates has occurred in the aftermath of a severe economic downturn that has left state budgets across the nation in flux. Judges, of course, are not oblivious to budget deficits. Moreover, eleven decisions over two years may be too small a sample size to draw any definitive conclusions about the adequacy theory’s future—particularly in light of strong pro-plaintiff rulings in Connecticut and Washington over the same time period.[29] It should also be noted that courts in Florida, Colorado, and South Dakota have recently denied state motions to dismiss on justiciability grounds, sending those cases to adjudication on the merits.[30]

But there is strong support for the view that plaintiffs’ five-out-of-eleven record in recent years—a notable departure from the overall sixty-seven percent success rate for adequacy claims—is due to a change in attitude by the courts with respect to the adequacy theory itself. Each of the six adverse decisions shares a common characteristic: a concern by judges that it may simply be improper for the judiciary, as opposed to the legislature, to define a state’s educational objectives and concordant funding levels.

This concern may be well-founded. The common experience encountered by courts that have jumped into the adequacy thicket is that, once in, it often takes many difficult and highly politicized years—not to mention additional compliance lawsuits—before any headway is made. The Ohio Supreme Court, for example, issued four rulings over thirteen years affirming the right to an adequate education and demanding legislative compliance, but each order went unheeded by recalcitrant lawmakers.[31] At different points the Ohio General Assembly went so far as to propose stripping the court of jurisdiction altogether, ignoring the court’s orders, and even impeaching judges who voted in the majority.[32] In the end, Ohio’s high court terminated jurisdiction, despite the ongoing constitutional violation and with little educational progress to show for all its trouble.[33] Thus, the fact that recent adequacy decisions have been more likely to fall on deaf ears may be proof of judges learning from the experiences of their sister courts. In other words, in light of experiences such as those encountered by the Ohio Supreme Court, the easiest way for judges today to preserve the institutional authority and competence of the judiciary may be to stay out of educational adequacy claims altogether.

III. A Response to Adequacy: A New “Broken System” Theory of School Finance Litigation?

The emerging reluctance of state courts to rule for plaintiffs on adequacy grounds at the liability stage is just one reason why a new theory of school finance litigation may be on the rise. A second reason may be that adequacy suits, even if successful, often do not produce the extent of relief that plaintiff groups seek at the remedial stage. While large monetary awards to improve dilapidated and underperforming schools were ordered in New York and New Jersey,[34] different outcomes have occurred in other states. For example, in Ohio, despite favorable liability decisions,[35] the state legislature still has failed to provide children the kind of educational opportunities they need.[36] According to a study that examined fourteen states that have experienced pro-plaintiff adequacy decisions, annual per-pupil spending remained below the amount necessary to satisfy academic content standards in thirteen of them.[37]

Recognizing the limits of relief available in adequacy suits and the many institutional challenges that adequacy claims present for courts, some plaintiff groups are beginning to depart from the standard adequacy framework. The leading example of this departure is the “broken system” claim alleged in Robles-Wong v. State, a lawsuit filed in May 2010 by a coalition of California students, parents, and school districts.[38] In the complaint, the plaintiffs do not ask the court to construe the state constitution to create some minimally adequate level of education owed to all children; indeed, the complaint does not even mention the word “adequate.” Instead, the complaint charges that:

Defendants have violated their constitutional duty to provide and support the “system of common schools” by failing to provide and sufficiently fund an education finance system that is intentionally, rationally, and demonstrably aligned with the goals and objectives of the State’s prescribed educational program and the costs of ensuring that all children of all needs have the opportunity to become proficient according to the State’s academic standards . . . .[39]

The critical move in the Robles-Wong complaint is thus two-fold. First, plaintiffs do not ask the court to infer a duty to provide an adequate education from the text of state constitutions, which avoids the problem of asking courts to define educational “adequacy.” This was an important strategic decision because the text of California’s education clause, like most state education clauses, is not particularly conducive to the finding of an educational adequacy duty. In California, for example, the relevant clause merely states, “The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year . . . .”[40] Such language hardly provides a strong textual hook for a judicial standard of adequacy. In fact, out of the fifty state constitutions, only two—Florida and Georgia—use the word “adequate” in describing the state’s educational duty.[41] Most other state education clauses use modifiers like “uniform,” “thorough,” and “general,” which also do not speak to an adequacy duty per se.[42] Strikingly, neither Florida nor Georgia is among the twenty-one states that have agreed with plaintiffs that a state education clause imposes a duty on the legislature to provide an adequate education: Georgia’s high court rejected an adequacy suit in 1981, and the Florida Supreme Court did the same fifteen years later.[43]

Second, instead of asking the court to define educational adequacy using constitutional text that is effectively silent on the matter, the Robles-Wong plaintiffs base their challenge on the text that is clear: the term “system,” which is present in thirty-seven state constitutional education clauses. California’s education clause plainly obligates the state to create a system of schools.[44] The Robles-Wong plaintiffs simply ask the court whether the state’s provision of public education has grown so dysfunctional, so irrational, and so insufficient that it can no longer be considered a “system,” under an ordinary understanding of the term. Thus, the core difference between an adequacy challenge and the new broken system claim is that in the former, the court is asked to determine a particular amount of school funding owed under the state constitution, whereas in the latter, the court is asked only whether the state legislature has designed its school funding system in a rational, deliberate manner.

Both a dictionary definition of the term “system”[45] and language from a handful of other court opinions[46] bolster the view that an enterprise is only a system if it is made up of programs and policies that are rationally and actually designed to serve a common purpose.[47] The Robles-Wong plaintiffs concede that the state has satisfied its obligation of creating a common purpose for its school system in the form of academic content standards, by which every school abides. And the plaintiffs agree that most of California’s educational programs and policies—from standardized testing and accountability to textbook selection and teacher licensing—have been rationally and actually aligned with the achievement of these standards.[48]

The state’s school funding apparatus, however, has not been rationally aligned to the achievement of the standards. California’s funding for its public schools is not based on a deliberate calculation of how much it would cost to deliver the quality of education promised in state standards, but is rather a product of a hodgepodge of arcane local property tax formulas and categorical rules rooted in the 1970s.[49] Thus, if the Robles-Wong broken system challenge prevails, the court’s remedy will be to order the state legislature to design a new school finance system that rationally considers the cost of delivering the common purpose it has itself set for California’s schools under the state’s academic standards. Such a remedy allows the court to make good on a substantive constitutional promise embedded in the state constitution without embroiling itself in complex definitions of “educational adequacy.” Here, the legislature has itself defined the education to be delivered (in the form of state standards) and needs only to create a rational funding system in alignment with those standards. But the implications of such an order would be profound. A 2007 econometric study found that, even if California increased education funding by forty percent, it “would still leave over half of the California districts below the goal” set by the state’s own standards.[50]

To be fair, the core premises of the broken system claim are untested, and there are reasonable arguments that a state defendant may make against the notion that the duty to provide a “system” of schools encompasses a duty to align funding levels with state content standards. First, the state may object to the plaintiffs’ proposed definition of “system” as including a rationality requirement to begin with, under the logic that a system can still exist even if it is ineffective at meeting its goal. The problem with this argument is that there is a difference between an inefficient enterprise that may still amount to a system (for example, the present New York subway system) and a completely irrational enterprise that no longer counts as a system (for example, a subway “system” with hundreds of miles of track but only one stop such that passengers cannot actually go anywhere on it). In short, a state’s school finance structure does not have to be perfectly effective to be a “system,” but it does have to be rational.

Second, the state may argue that, even if there is a rationality requirement in the term “system”, that requirement should reach only core educational programs but not the funding of those programs, since funding might be viewed as external to school policy. However, the problem with that argument is plain: if school funding is not included in the basket of educational policies that must be rationally designed, then the state constitution’s “system” duty is rendered meaningless. Imagine a state that has come up with the most deliberate and technically sound academic standards, curriculum guides, and teacher training programs possible. If the duty to provide a “system” of schools does not encompass a rational funding requirement, then the state could provide a “system” of schools simply by putting its standards, curriculum and teacher training programs on paper without spending a single dime to begin implementing them.

In any event, it appears as though we will soon see whether the arguments I have briefly sketched out here will prove persuasive to state judges. The first round of oral arguments in Robles-Wong took place in December, 2010, and touched on several of these concerns. For instance, when confronted with the accusation that the suit was just about more money for schools, the plaintiffs’ attorneys responded that their broken system challenge is not about the amount of funding at all—it is about the “irrational” and “unstable” way that school funding is provided and distributed.[51] The court is set to rule on the state’s motion to dismiss in early 2011. Its decision will influence whether a similar claim may be raised in the thirty-six other states whose constitutions also prescribe a duty to provide a “system” of public schools.

IV. Where We Are Heading: The Next Decade in School Finance Litigation

The recent plaintiff merits victories in Connecticut and Washington adequacy lawsuits[52] show that it is far too soon to sound the death knell of the adequacy theory of school finance litigation that has figured so prominently thus far in legal efforts to improve the quality of education for disadvantaged children. But there are three reasons why the next decade of education finance lawsuits is likely to see a rise in new state constitutional theories to further educational reform such as the broken system claim, as opposed to a rote continuation of the standard equity and adequacy arguments from prior decades.

First, most state courts have already ruled on adequacy and equity challenges. Courts in thirty-one states have already passed judgment on adequacy claims (two states, Arizona and Missouri, have had two distinct adequacy suits), and an additional eight states have adequacy challenges pending in court.[53] To say that the next decade in school finance lawsuits might not be dominated by adequacy claims in the same manner as the prior one may just be a reflection of the reality that there are not many states where new adequacy claims can be brought. Plaintiffs can always re-litigate old adequacy arguments in states where decisions have already been handed down. But as Kansas plaintiffs found recently,[54] it is often very difficult to persuade judges to reopen cases on such a difficult matter—judges who have already passed judgment on complex issues of educational adequacy may find it better, so to speak, to let sleeping dogs lie.

Second, the changing education reform landscape has placed a new kind of pressure on statewide school funding structures: standards-based school reform. Pursuant to the No Child Left Behind Act, every state has now enacted its own definition of the quality of education that children should be provided on a grade-by-grade basis. As standards-based reform grows more prominent in the school reform discussions, it is increasingly likely that debates over school finance will be tied to debates over these standards. The remedies sought in adequacy cases, however, are not tied to the standards; they ask courts to determine what an adequate education is and often to set school funding levels accordingly.[55] Typically, the courts fashion definitions of adequacy that are less demanding than the statewide academic standards.[56] This is why most states that have seen a plaintiff’s victory in adequacy litigation still do not spend enough to provide their children with the education promised under their state standards.[57]

The broken system of school finance litigation, by contrast, explicitly ties a state’s duty to fund its schools to a state’s academic standards. The requirement to provide a “system of common schools” specifically means laying out a common purpose for the state’s schools (the academic standards), and implementing programs such as school finance that are rationally tailored to the achievement of those standards. Put another way, then, the pressure on litigants to assert broken system claims instead of (or in addition to) adequacy claims may come from a desire for more extensive relief, insofar as a broken system claim would require funding sufficient to meet statewide academic standards in a manner that adequacy claims have thus far failed to do. It remains to be seen, of course, just how open courts will be to such demands.

Third, new education finance theories are likely to be waged in courts because it does seem as though something is happening in state courts to discourage judges from finding for plaintiffs on the merits of their adequacy claims, at least at the same rates as plaintiffs prevailed in the prior two decades. Whether the reason for the adequacy theory’s declining win-loss record over the past two years has to do with concerns over judicial administrability, a recognition that state coffers cannot bear the weighty price tag that adequacy decisions often command, random variance, or some combination of the three, it is only natural for would-be plaintiffs to look around at decisions from other states (as judges do) and read the tea-leaves. And just as the failure of equity lawsuits spurred on the rise of the adequacy wave in the late 1980s and early 1990s, so too might a perceived decline in success rates for adequacy suits persuade litigants to sue under a new theory like the broken system claim I have described here.

But might the broken system theory struggle for the same reasons that the adequacy theory has appeared less persuasive to judges of late? The answer depends on a deeper understanding of why adequacy lawsuits have been less successful of late. If the reason is purely economic, which is to say that judges are ruling against plaintiffs because they do not want to impose a substantial new spending requirement on state assemblies already struggling to balance their budgets in dim economic times, then there is little reason why the broken system theory asserted in Robles-Wong should be any more successful than adequacy claims. In fact, to the extent that the remedy sought in a broken system claim (full, rational funding of a state’s academic standards) would exceed that which is ordered by courts who seek to enforce a state’s duty to provide some minimally adequate education, the broken system might actually be even less likely to prevail.

But if the adequacy theory’s recent track record is instead rooted in concerns over judicial restraint, then it is possible that the broken system theory may indeed be more likely to succeed. At its root, the source of judicial anxiety to get embroiled in adequacy litigation (and the resulting decision to rule plaintiffs’ claims non-justiciable) is the notion that it should be the democratically elected legislature’s job to define the state’s educational goals, and not the court’s job.[58] But the broken system argument is fully consistent with this separation of powers principle, as it does not ask the court to define what constitutes an “adequate education” at any given time. Instead, it requires a court to defer to whatever academic content standards the state legislature has enacted as the appropriate goal of the state’s system of public schools. It is true that, in the process, a court would have to determine whether a state legislature has designed a rational funding system in light of these standards. However, the court can make that determination by primarily scrutinizing the process that the legislature has engaged in to create its school funding structure, and not substantive nature of the state’s standards or the amount of funding alone. A state that commissions an econometric study to see how much it actually costs to provide the education promised in the standards and that apportions funding in a reasonable relationship to those figures should be found to meet its constitutional duty to provide a “system” of common schools. In contrast, a state like California that arbitrarily sets funding levels based on local property tax receipts from the prior year, without regard for the actual cost of delivering the education promised in state standards, will have failed its duty.

Moreover, the broken system theory does not ask courts to calculate a particular funding level for every district in the state, and it does not require the court to then continue its jurisdiction in order to enforce those funding levels—a difficult dynamic under which several states such as New Jersey and Ohio have suffered. Rather, the broken system claim simply asks the court to conduct a version of rationality review to check that the legislature (a) has identified the cost of providing the education promised in state standards, and (b) has rationally designed and implemented a school funding system to deliver that cost of education. In other words, the broken system claim guarantees to school children that their state legislature will go through a deliberate, rational process for determining the kind of education they are owed and the way in which that education will be funded. Few states fulfill that obligation presently. To be sure, litigation based on the broken system theory will produce heated argument over whether a particular school funding system is sufficiently rational in light of a state’s academic content standards. Furthermore, any significant changes to a state’s funding structure over time may trigger new litigation to determine whether a funding structure has fallen out of constitutional compliance. But in no event would a court be called upon to define the state’s educational objectives or to set an exact funding level necessary to reach those objectives. Those responsibilities would remain with the democratically accountable state legislatures.

* * *

Ultimately, the likeliest outlook for the next decade of school finance litigation is that adequacy challenges will continue to be brought, but will be increasingly accompanied by new claims perhaps like the broken system cause of action. Such a development would not be unusual; after all, even to this day, many adequacy lawsuits are filed in conjunction with equal protection challenges.[59]

The question of whether the broken system theory will eventually rise to prominence in the same way that the adequacy theory has dominated school finance lawsuits over the past two decades, however, will depend largely on the early response to the theory in California’s courts and elsewhere. If the theory experiences early success, it may well catch on in other states. The same dynamic that may push adequacy challenges slowly into the backseat can also bring a new theory to the fore. Just as judges often track the decisions of their sister courts to see whether certain legal actions like the adequacy theory are judicially manageable, so too can plaintiffs track cases in other states to see what legal arguments are gaining traction. For now, eyes are on California to see how the new theory raised in Robles-Wong will fare—and whether the same forces that have impaired adequacy suits of late will apply to the broken system theory as well.

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* I thank Elizabeth Campbell, William S. Koski, John Affeldt, Michael Rebell, and Paul Tractenberg.

[1] 411 U.S. 1, 35 (1973) available at FindLaw.

[2] Michael A. Rebell, Education Adequacy, Democracy and the Courts, in Achieving High Educational Standards for All 218 (Timothy Ready et al. eds., 2002).

[3] Nat’l Access Network, Litigations Challenging Constitutionality of K-12 Funding in the 50 States (June 2010).

[4] 655 N.E.2d 661 (N.Y. 1995).

[5] Elizabeth Benjamin, No Cheers for Delayed CFE Funds, N.Y. Daily News, Nov. 29, 2007.

[6] Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989), is often credited with “ushering in the ‘adequacy’ theory as the dominant one.” Scott R. Bauries, Is There an Elephant in the Room?: Judicial Review of Educational Adequacy and the Separation of Powers in State Constitutions, 61 Ala. L. Rev. 701, 722 (2010).

[7] Rebell, supra note 2, at 227 (“Despite an initial flurry of pro-plaintiff decisions [in fiscal equity cases] in the mid-1970s, by the mid-1980s, the pendulum has decisively swung the other way . . . .”); see also 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, 576 (1998) (“Between 1973 and 1989, the years in which school finance litigants pursued an equity theory, almost as many state courts invalidated school finance systems as upheld them.”).

[8] Rebell, supra note 2, at 227.

[9] Nat’l Access Network, Education Adequacy Liability Decisions Since 1989 (June 2010).

[10] See Bonner v. Daniels, 907 N.E.2d 516, 522 (Ind. 2009); Pendleton Sch. Dist. v. State, 200 P.3d 133, 145 (Or. Jan. 23, 2009), available at Oregon Supreme Court; Comm. for Educ. Equal. v. State, 294 S.W.3d 477 (Mo. 2009); Davis v. State, No. 06-244, slip op. (S.D. Cir. Ct. 2009), available at Lakeherman.org; Montoy v. State, No. 92-032, slip op. (Kan. Feb. 12, 2010), available at Kansas Supreme Court; Abbott v. Burke, 971 A.2d 989 (N.J. May 28, 2009).

[11] Robles-Wong v. State, No. RG10515768 (Cal. Super. Ct. filed May 20, 2010), available at fixschoolfinance.org.

[12] 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, 600–01 (1994). But see William S. Koski, Of Fuzzy Standards and Institutional Constraints: A Re-examination of the Jurisprudential History of Educational Finance Reform Litigation, 43 Santa Clara L. Rev. 1185, 1188 (2003) (noting that judicial fusion of equity and adequacy analyses suggested that “the supposed demarcation between ‘second wave’ equity cases and ‘third wave’ adequacy cases is not so distinct”).

[13] Rodriguez, 411 U.S. at 35, available at FindLaw.

[14] William S. Koski & Rob Reich, When “Adequate” Isn’t: The Retreat from Equity in Educational Law and Policy and Why It Matters, 56 Emory L.J. 545, 594 (2006) (describing competing definitions of “equality” in school finance).

[15] Id. at 610.

[16] Serrano v. Priest, 5 Cal. 3d 584 (1971), available at Stanford.edu.

[17] See John E. Coons et al., Educational Opportunity: A Workable Constitutional Test for State Financial Structures, 57 Cal. L. Rev. 305, 419 (1969).

[18] William A. Fischel, How Serrano Caused Proposition 13, 12 J.L. & Pol. 607 (1996).

[19] Serrano v. Priest, 18 Cal. 3d 728, 754 n.28 (1976), available at LawLink.

[20] Janet D. McDonald et al., School Finance Litigation and Adequacy Studies, 27 U. Ark. Little Rock L. Rev. 69 (2004).

[21] William E. Sparkman, The Legal Foundations of Public School Finance, 35 B.C. L. Rev 569, 572–73 (1994).

[22] Heise, supra note 7, at 1169.

[23] See, e.g., City of Pawtucket v. Sundlun, 662 A.2d 40, 57 (R.I. 1995) ( “Because the Legislature is endowed with virtually unreviewable discretion in this area, plaintiffs should seek their remedy in that forum rather than in the courts.”), available at Google Scholar.

[24] See Koski, supra note 9, at 1233.

[25] Bonner v. Daniels, 907 N.E.2d 516, 522 (Ind. 2009).

[26] Pendleton Sch. Dist. v. State, 200 P.3d 133, 145 (Or. Jan. 23, 2009), available at Oregon Supreme Court; Comm. for Educ. Equal. v. State, 294 S.W.3d 477 (Mo. 2009); Davis v. State, No. 06-244, slip op. (S.D. Cir. Ct. 2009), available at Lakeherman.org.

[27] Montoy v. State, No. 92-032, slip op. (Kan. Feb. 12, 2010), available at Kansas Supreme Court.

[28] Abbott v. Burke, 971 A.2d 989 (N.J. May 28, 2009).

[29] See Conn. Coal. for Justice in Educ. Funding v. Rell, 990 A.2d 206 (Conn. Mar. 30, 2010), available at courant.com (holding the Connecticut Constitution to guarantee children an adequate education defined by civic and economic preparedness); see also McCleary v. State, No. 07-2-02323-2, slip op. (Wash. King County Super. Ct. Feb. 24, 2010) available at waschoolexcellence.com (ruling the state’s school finance system to be in violation of the state’s constitutional duty to provide an adequate education).

[30] Citizens for Strong Sch. v. Fla. Bd. of Educ., No. 09-CA-4534, slip op. (Fla. Cir. Ct. Aug. 25, 2010) (denying the state’s motion to dismiss and holding justiciable the plaintiffs’ allegation that the state is denying school children their right to a “high quality education” as promised under a 1998 constitutional amendment); Lobato v. State, 218 P.3d 358 (Colo. 2009) available at Google Scholar (holding plaintiffs’ adequacy claims justiciable); Olson v. Guindon, 771 N.W.2d 318 (S.D. 2009) available at Google Scholar (school district’s adequacy challenge justiciable, but remanding for a decision on the merits).

[31] See Larry J. Obhof, DeRolph v. State and Ohio’s Long Road to an Adequate Education, 2005 BYU Educ. & L.J. 83, 84 (2005).

[32] Id. at 85.

[33] DeRolph v. State, 780 N.E.2d 529, 533 (Oh. 2002), available at ohiotaxreform.org.

[34] See Linda Darling-Hammond, The Flat World and Education: How America’s Commitment to Equity Will Determine Our Future 122–30 (2010).

[35] DeRolph v. State, 677 N.E.2d 733 (Oh. 1997); DeRolph v. State, 728 N.E.2d 993 (Oh. 2000); DeRolph v. State, 754 N.E.2d 1184 (Oh. 2001); DeRolph v. State, 780 N.E.2d 529 (Oh. 2002).

[36] Obhof, supra note 31.

[37] Aaron Tang, Broken Systems, Broken Duties: A New Theory of School Finance Litigation, 94 Marq. L. Rev. (forthcoming 2011).

[38] Robles-Wong v. State, No. RG10515768 (Cal. Super. Ct. filed May 20, 2010), available at fixschoolfinance.org.

[39] Complaint at 53, Robles-Wong v. State, No. RG10515768 (Cal. Super. Ct. filed May 20, 2010) (emphasis added), available at fixschoolfinance.org.

[40] Cal. Const. art. IX, § 5, available at FindLaw. See also art. IX, § 1 (“Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.”), available at FindLaw.

[41] Fla. Const. art. IX, § 1, available at FloridaLegislature; Ga. Const. art. VIII, §1, available at www.sos.ga.gov.

[42] See, e.g., Ohio Const. art. VI, § 2 (“thorough and efficient system of common schools”), available at OhioLegislature; Nev. Const. art. XI, § 2 (“legislature shall provide for a uniform system of common schools”), available at NevadaLegislature.

[43] McDaniel v. Thomas, 285 S.E.2d 156, 165 (Ga. 1981) (declaring that “it is primarily the legislative branch of government which must give content to the term ‘adequate.’”), available at GoogleScholar; Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400, 408 (Fla. 1996) (plaintiffs “failed to demonstrate . . . an appropriate standard for determining ‘adequacy’ that would not present a substantial risk of judicial intrusion into the powers and responsibilities assigned to the legislature . . . .”).

[44] Cal. Const. art. IX, § 5 (“The Legislature shall provide for a system of common schools . . . .”).

[45] System is defined as “an organization forming a network especially for . . . serving a common purpose.” Merriam-Webster Online Dictionary (2011) (emphasis added).

[46] See, e.g., Campbell County Sch. Dist. v. State, 907 P.2d 1238, 1258–59 (Wyo. 1995) (defining “a thorough and efficient system of public schools” as “an organization forming a network for serving the common purpose of public schools which organization . . . is reasonably sufficient for the appropriate or suitable teaching/education/learning of the state’s school age children.”) (emphasis added), available at WyomingLegislature.

[47] For a thorough discussion of the “broken system” theory of school finance litigation, see Tang, supra note 37.

[48] Complaint at 20–23, Robles-Wong v. State, No. RG10515768 (Cal. Super. Ct. filed May 20, 2010), available at fixschoolfinance.org.

[49] Educ. Data P’ship, A Guide to California’s School Finance System (Feb. 2007).

[50] Susanna Loeb et al., Getting Down to Facts: School Finance & Governance in California 57 (Mar. 2007).

[51] Susan Davis, Robles-Wong, State Attorneys Present Arguments in Court, In Alameda Blog, S.F. Chron., Dec. 13 2010.

[52] Conn. Coal. for Justice in Educ. Funding v. Rell, 990 A.2d 206 (Conn. Mar. 30, 2010); McCleary v. State, No. 07-2-02323-2, slip op. (Wash. King County Super. Ct. Feb. 24, 2010).

[53] See Nat’l Access Network, supra note 9.

[54] Montoy v. State, No. 92-032, slip op. (Kan. Feb. 12, 2010), available at Kansas Supreme Court.

[55] James E. Ryan, Standards, Testing, and School Finance Litigation, 86 Tex. L. Rev. 1223, 1238 (2008) (Observing that standards have not gained traction as a legal definition of educational adequacy because courts would have to fundamentally change their concept of school finance litigation from one concerned with comparability to one concerned with absolute resource distribution).

[56] See, e.g., Abbeville County Sch. Dist. v. State, 515 S.E.2d 535 (S.C. 1999), available at SC.edu (defining the state’s duty to provide a “minimally adequate education”).

[57] See McDaniel v. Thomas, 285 S.E.2d 156, 165 (Ga. 1981), available at Google Scholar.

[58] See, e.g., Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178, 1191 (Ill. 1996) (“To hold that the question of educational quality is subject to judicial determination would largely deprive the members of the general public of a voice in a matter which is close to the hearts of all individuals in Illinois.”), available at GoogleScholar.

[59] See, e.g., Bonner v. Daniels, 907 N.E.2d 516, 522 (Ind. 2009) (considering but rejecting plaintiffs’ claim that the state’s school finance system violated the state’s Equal Privileges and Immunities Clause).