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Resolving the dispute over methods of financing elementary and secondary education: The decision of local school districts to go to court
Swinford, William Kinney, Ph.D.
The Ohio State University, 1993
Copyright ©1993 by Swinford, William Kinney. All rights reserved.
UMI 300 N. Zeeb Rd. Ann Arbor, Ml 48106 RESOLVING THE DISPUTE OVER METHODS OF FINANCING
ELEMENTARY AND SECONDARY EDUCATION
The Decision of Local School Districts To Go To Court
DISSERTATION
Presented in Partial Fulfillment of the Requirements for
the Degree of Doctor of Philosophy in the Graduate School of
The Ohio State University
By
William Kinney Swinford, B.A.
******
The Ohio State University
1993
Dissertation Committee Approved by
Dr. Lawrence Baum
Dr. Gregory A. Caldeira Adviser Dr. Paul A. Beck Department of Political Science Copyright by William Kinney Swinford 1993 ACKNOWLEDGEMENTS
The completion of this dissertation and the achievement of my Ph.D. is the result of the contributions, both great and small, of a large number of people. 1 would like to take a moment to express my heartfelt appreciation to a few in particular. Very special thanks to Professor
Lawrence Baum for five years of guidance, insight, stories, patience and friendship. I am also indebted to the other members of my dissertation committee, Professors Paul Beck and Greg
Caldeira, for their consistent encouragement and assistance in the course of this research in particular and over the last five years in general. It has been an honor and a privilege for me to have known and worked with my graduate student colleagues in political science at Ohio State.
They have been an invaluable source of constant encouragement, friendship and support. This is particularly true of Jeff, John, Tom, Marie and Professor John Clark.
There is really no way for me to express my appreciation and adoration for my wife,
Regina, and her unwavering love, patience, encouragement, snacks, endurance, friendship and constant efforts to prevent me from working too much. Without her, this degree simply would not have been possible.
Finally, I want to thank my parents, John and Mary Swinford, to whom this dissertation is dedicated. Everything that I am and will ever become is because of them, particularly my mother’s love and my father’s example.
Thank you all very much. This dissertation and degree is as much yours as it is mine. VITA
May 22, 1966...... Born -- Cynthiana, Kentucky
1988...... B.A., University of Kentucky Lexington, Kentucky
PUBLICATION
"A Predictive Model of Decision Making in State Supreme Courts: The School Financing Cases," American Politics Quarterly 3: 336-352.
FIELDS OF STUDY
Major Field: Political Science
Studies in: Judicial Politics (Dr. Lawrence Baum) State Politics (Dr. Lawrence Baum) Legislative Politics (Dr. Samuel C. Patterson) Voting Behavior (Dr. Paul A. Beck) Public Policy (Dr. Randall B. Ripley) TABLE OF CONTENTS
ACKNOWLEDGEMENTS...... ii
VITA ...... iii
LIST OF TABLES ...... vii
CHAPTER
I. INTRODUCTION ...... 1
Dissertation Focus ...... 3 State-Local R elations ...... 6 Primary and Secondary Education in the U.S ...... 11 Systems of Education Finance ...... 17 Alternative Responses to the Problem of Inequity ...... 19
II. A HISTORY OF EDUCATION FINANCE LITIGATION ...... 23
Serrano v. Priest ...... 24 The Aftermath of S erran o ...... 31 San Antonio v. Rodriguez ...... 32 Litigation in the Post-Rodriguez Era ...... 36 Litigation After Robinson v. Cahill ...... 41 The Third Wave of Reform ...... 46 The Future of Litigation ...... 49
III. A MODEL OF THE DECISION TO LITIGATE THE DISPUTE OVER EDUCATION FINANCE ...... 50
Previous Research on Litigation ...... 50 Developing the Model ...... 54 A Brief Overview of the Model ...... 56 Potential Influences on the Decision to L itigate ...... 59
IV. THE DESIGN FOR RESEARCH ...... 82
The Sample of S ta te s...... 82 Data Collection ...... 86 Data Analysis ...... 88
iv V. EDUCATION FINANCE LITIGATION IN ALABAMA ...... 94
Responding to Brown v. Board of Education ...... 94 Education in Alabama Today ...... % Commencing a Lawsuit over Inequity ...... 100 Bivariate Analysis...... 103 Multivariate Analysis...... 128 Multivariate Analysis-Part II ...... 133
VI. EDUCATION FINANCE LITIGATION IN ARIZONA ...... 137
Education in Arizona ...... 138 The Commencement of the Arizona Lawsuit ...... 142 Bivariate Analysis...... 146 Multivariate Analysis...... 166 Multivariate Analysis-Part II ...... 172
VII. EDUCATION FINANCE LITIGATION IN NEW HAMPSHIRE...... 174
Education in New H am pshire ...... 174 Commencing the Lawsuit ...... 178 Bivariate Analysis...... 183 Multivariate Analysis...... 204 Multivariate Analysis-Part II ...... 209
VIII. EDUCATION FINANCE LITIGATION IN O H IO ...... 210
The Genesis of Finance Litigation ...... 211 Legal Gymnastics on the Issue of Education Finance ...... 214 Bivariate Analysis...... 220 Multivariate Analysis...... 240 Multivariate Analysis-Part II ...... 244
IX. EDUCATION FINANCE LITIGATION IN VIRGINIA ...... 245
Virginia’s Education Finance Reform of 1987 ...... 245 Virginia’s System of Education Finance ...... 247 Forming the Coalition for Equity in Educational Funding ...... 251 Bivariate Analysis...... 257 Multivariate Analysis...... 277 Multivariate Analysis-Part II ...... 281
X. SUMMARY AND CONCLUSIONS ...... 282
Summary ...... 282 C onclusion...... 288
v APPENDICES
A. Education Finance Cases Decided by State Supreme C o u rts ...... 291
B. States with Education Finance Litigation Pending ...... 293
C. Surveys Sent and Response Rates ...... 294
D. S u rv ey...... 295
BIBLIOGRAPHY...... 306
CASE IN D E X ...... 318
vi LIST OF TABLES
TABLE
1. Events in Education Finance Litigation, 1971-1973 ...... 40
2. Attitudes in Alabama About the Preferred Level of Judicial Involvement in Disputes in Particular Areas of Elementary and Secondary Education ...... 107
3. Percentage of Plaintiff and Non-Plaintiff Districts in Alabama That Believe the Judiciary Should "Rarely or Never" Be Involved in Disputes in Areas of E ducation ...... 108
4. Relationship Between Subjective Evaluations of Financial Status and the Decision to Become a Plaintiff in Alabama ...... 112
5. Percentage of Districts Within Each Quartile (Based on Value of Property Per Pupil) That Became Plaintiffs in Alabama ...... 113
6. Percentage of Districts in Alabama That Reported That Each Third Party Had an Opinion About District Involvement in the Litigation ...... 119
7. Percentage of Non-Plaintiff Districts in Alabama That Reported That Each Third Party Had an Opinion About District Involvement in the L itigation ...... 123
8. Percentage of Plaintiffs and Non-Plaintiffs in Alabama That Considered the Decisions of Other School Districts ...... 125
9. Correlation Between Third Party Opinion and the Decision of Local School Districts on Whether to Become a Plaintiff in Alabama ...... 126
10. Intercorrelations Among the Dependent and Independent Variables in Alabama . . . 129
11. Results of a Probit Analysis of the Model of the Decision Making of School Districts in Reference to the Education Finance Litigation in Alabam a ...... 130
12. Results of a Probit Analysis of the Revised Model of the Decision Making of School Districts in Reference to the Education Finance Litigation in Alabama ...... 134
13. Attitudes in Arizona About the Preferred Level of Judicial Involvement in Disputes in Particular Areas of Elementary and Secondary Education ...... 149 14. Percentage of Plaintiff and Non-Plaintiff Districts in Arizona That Believe the Judiciary Should "Rarely or Never" Be Involved in Disputes in Areas of E ducation ...... 150
15. Percentage of Districts Within Each Quartile (Based on Value of Property Per Pupil) That Became Plaintiffs in A riz o n a ...... 153
16. Relationship Between Objective (Value of Property Per Pupil) and Subjective Measures of Financial Status in A rizona ...... 154
17. Relationship Between Subjective Evaluations of Financial Status and the Decision to Become a Plaintiff in Arizona ...... 155
18. Percentage of Districts in Arizona Within Each Group That Predict That Their Financial Status Will Improve Under a More Equitable System ...... 159
19. Percentage of Districts in Arizona That Reported That Each Third Party Had an Opinion About District Involvement in the Litigation ...... 161
20. Percentage of Plaintiffs and Non-Plaintiffs in Arizona That Considered the Decisions of Other School Districts ...... 163
21. Correlation Between Third Party Opinion and the Decision of Local School Districts on Whether to Become a Plaintiff in A rizona ...... 164
22. Percentage of Districts in Arizona That Chose Not to Join the Coalition Out of All Districts Reporting That Each Third Party Favored Joining the Coalition 165
23. Intercorrelations Among the Dependent and Independent Variables in Arizona .... 167
24. Results of a Probit Analysis of the Model of the Decision Making of School Districts in Reference to the Education Finance Litigation in Arizona ...... 168
25. Results of a Probit Analysis of the Revised Model of the Decision Making of School Districts in Reference to the Education Finance Litigation in Arizona ...... 172
26. Attitudes in New Hampshire About the Preferred Level of Judicial Involvement in Disputes in Particular Areas of Elementary and Secondary Education ...... 187
27. Percentage of Plaintiff and Non-Plaintiff Districts in Each State That Believe the Judiciary Should "Rarely or Never" Be Involved in Disputes in Areas of E ducation ...... 188
28. Percentage of Plaintiff and Non-Plaintiff Districts in New Hampshire That Believe the Judiciary Should "Rarely or Never" Be Involved in Disputes in Areas of E ducation ...... 189 29. Relationship Between Subjective Evaluations of Financial Status and the Decision to Become a Plaintiff in New Hampshire ...... 192
30. Percentage of Districts Within Each Quartile (Based on Value of Property Per Pupil) That Became Plaintiffs in New Hampshire...... 193
31. Percentage of Districts in Each State That Reported That Each Third Party Had An Opinion About Districts Involvement in the Litigation ...... 199
32. Percentage of Districts in New Hampshire That Reported That Each Third Party Had an Opinion About District Involvement in the Litigation ...... 201
33. Percentage of Non-Plaintiff Districts in New Hampshire That Reported That Each Third Party Had an Opinion About District Involvement in the Litigation .... 202
34. Correlation Between Third Party Opinion and the Decision of Local School Districts on Whether to Become a Plaintiff in New Hampshire ...... 203
35. Intercorrelations Among the Dependent and Independent Variables in New Hampshire ...... 205
36. Results of a Probit Analysis of the Model of the Decision Making of School Districts in Reference to the Education Finance Litigation in New Hampshire ...... 206
37. Results of a Probit Analysis of the Revised Model of the Decision Making of School Districts in Reference to the Education Finance Litigation in New Hampshire . . 209
38. Attitudes in Ohio About the Preferred Level of Judicial Involvement in Disputes in Particular Areas of Elementary and Secondary Education ...... 224
39. Percentage of Plaintiff and Non-Plaintiff Districts in Ohio That Believe the Judiciary Should "Rarely or Never" Be Involved in Disputes in Areas of Education .... 225
40. Relationship Between Subjective Evaluations of Financial Status and the Decision to Become a Plaintiff in Ohio ...... 228
41. Percentage of Districts Within Each Quartile (Based on Value of Property Per Pupil) That Became Plaintiffs in O h io ...... 229
42. Relationship Between Predictions About the Beneficiaries of Changes in the System of Finance and the Decision to Become a Plaintiff in Ohio ...... 234
43. Percentage of Districts in Ohio That Reported That Each Third Party Had An Opinion About Districts Involvement in the L itig atio n ...... 236
44. Percentage of Plaintiffs and Non-Plaintiffs in Ohio That Considered the Decisions of Other School D istric ts...... 237 45. Correlation Between Third Party Opinion and the Decision of Local School Districts on Whether to Become a Plaintiff in O hio ...... 238
46. Intercorrelations Among the Dependent and Independent Variables in Ohio ...... 240
47. Results of a Probit Analysis of the Model of the Decision Making of School Districts in Reference to the Education Finance Litigation in Ohio ...... 241
48. Results of a Probit Analysis of the Revised Model of the Decision Making of School Districts in Reference to the Education Finance Litigation in O hio ...... 244
49. Attitudes in Virginia About the Preferred Level of Judicial Involvement in Disputes in Particular Areas of Elementary and Secondary Education ...... 261
50. Percentage of Plaintiff and Non-Plaintiff Districts in Virginia That Believe the Judiciary Should "Rarely or Never" Be Involved in Disputes in Areas of E ducation ...... 262
51. Relationship Between Subjective Evaluations of Financial Status and the Decision to Become a Plaintiff in Virginia ...... 265
52. Percentage of Districts Within Each Quartile (Based on Value of Property Per Pupil) That Became Plaintiffs in V irg in ia ...... 266
53. Percentage of Plaintiffs and Non-Plaintiffs in Virginia That Answered Affirmatively to the Following Questions Concerning the Predicted Results of a Court Decision Favoring the Plaintiffs ...... 268
54. Percentage of Districts in Virginia That Reported That Each Third Party Had an Opinion About District Involvement in the Litigation ...... 270
55. Percentage of All Districts in Each State That Reported That Each Third Party Had an Opinion About District Involvement in the L itigation ...... 273
56. Percentage of All Plaintiffs and Non-Plaintiffs in Virginia That Considered the Decisions of Other School D istricts ...... 274
57. Correlation Between Third Party Opinion and the Decision of Local School Districts on Whether to Become a Plaintiff in V irginia ...... 275
58. Intercorrelations Among the Dependent and Independent Variables in Virginia .... 277
59. Results of a Probit Analysis of the Model of the Decision Making of School Districts in Reference to the Education Finance Litigation in Virginia ...... 278
60. Results of a Probit Analysis of the Revised Model of the Decision Making of School Districts in Reference to the Education Finance Litigation in Virginia ...... 278
x . Probability Changes and Significance Levels of Independent Variables in Each State CHAPTER I
INTRODUCTION
We are witnesses to a remarkable era of societal transition. The last decade has been conspicuous as a time of the destruction and reconfiguration of countless nations and governments around the world. This extraordinary period has necessarily given new vigor to scholarly and lay discussions of the qualities that give particular societies the unique capacity to endure.
Perhaps the most crucial component of any continuing society is a competence for the resolution of internal conflict. It is inevitable that individuals in close proximity to one another for extended periods of time will come into conflict. Intra-society conflict, if not resolved peaceably, can be of a magnitude to cause the erosion and eventual destruction of a nation and its government. Societies endure largely because they create mechanisms by which conflicts between citizens can be resolved in a disciplined and peaceful manner.
Article III of the Constitution of the United States creates a judicial branch whose
...Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority...
American courts are designed for the provision of a formal and structured forum for the resolution of conflict. From the beginning, the legal authority of the courts to resolve disputes between private individuals (i.e divorce, liability, etc.) has never been seriously
1 2
questioned. The decisions that courts make regarding these disputes carry the power of law,
requiring the adherence of the parties involved.
On the other hand, judicial power in the realm of government activity is a concept
that has been under constant scrutiny, discussion and evolution since the ratification of the
Constitution. The central question has been (and continues to be) whether the American
judiciary has the authority to decide conflicts which call into question the constitutionality of
decisions made by the legislative and/or executive branches of government (commonly known
as the power of judicial review)1. Regardless of one’s perspective on the constitutional
existence of judicial review, there can be little doubt that American courts have established
themselves as legitimate arbiters in disputes that involve government policy. Every year,
courts in the United States pass judgement on a variety of decisions made by legislatures and
executives2.
Like their counterparts in private disputes, judicial decisions in disputes involving
government policies are to be heeded by the participants. However, unlike judicial resolution
of most private disputes, court decisions in policy-centered cases have the potential for broad
impact. Judicial decisions which nullify particular government policies can cause fundamental
alterations in government activities affecting thousands of private and public parties. Courts
are thus potentially powerful actors in the policy process.
However, while the power of courts in public policy is broad by virtue of the acceptance of judicial review, it is at the same time restricted by the fundamental nature of the judiciary itself. Courts are reactive policy participants. The judiciary does not possess the
1. For perspectives on and discussions of this debate, see Berger, 1977; Bickel, 1962; Jackson, 1941; Kelly et al., 1983; Lasser, 1988; Melone and Mace, 1988; and Murphy, 1962.
2. For case law involving government policies, see Barry and Whitcomb, 1987; Kutler, 1984; Presser and Zainaldin, 1980; and Schantz, 1976. power to enter policy disputes uninvited. It is only when parties affected by particular policies solicit judicial involvement that courts have the opportunity to become active participants in a specific area of public policy. This solicitation of judicial intervention generally takes the form of lawsuits brought by individuals, organizations and businesses which seek to enhance, alter or prohibit particular federal, state or local government activities.
DISSERTATION FOCUS
Education Finance
It is also possible for governments to bring suit against one another. This dissertation is about the decision to participate in such lawsuits. More precisely, this analysis investigates the forces which induce governing bodies to become involved in adjudication designed to resolve disputes over a particular public policy. The policy conflict examined here involves the method by which state governments finance their primary and secondary education systems. These methods force local districts to rely heavily upon property taxes for local contributions to education. Disparities are created because spending per pupil within each school district becomes, at least to a certain extent, a consequence of property value within each district. Over the last 20 years, lawsuits which seek the nullification of property tax- based methods of financing primary and secondary education have been decided by state-level courts 28 times in 24 states (Appendix A)3. On 14 occasions, state supreme courts have
3. It is not unusual for a state to have more than one education finance lawsuit in its history. voided their methods of financing4. These decisions have resulted in significant alterations to
methods of education finance and, in some instances, to education systems more generally.
As of September 2, 1992 (when this research was in progress), there were active
financing cases in 29 states (Appendix B). A majority of these and past financing cases result
from lawsuits instigated primarily by local school districts. In most instances, collections of
local school districts formally coalesce for the purpose of financing and managing these suits.
For example, the Ohio Coalition for Equity and Adequacy in School Finance was formed in
1991 specifically for the purpose of seeking a judicial resolution to spending disparities in the
state of Ohio.
However, there has not been a case in which all local school districts within a state
unite to litigate a financing dispute. In the case of Ohio, for instance, approximately 280 of
the 612 public school districts in the state joined the Coalition. This research is designed as
an attempt to understand why some school districts join these coalitions, thus becoming
plaintiffs, while other districts within the same state do not. In the process, the research
attempts to develop a theory of the decision of government entities to litigate policy disputes.
The Decision to Litigate
One of the primary operating assumptions underlying this research is that the decision
to litigate does not result from a single decision. Rather, litigation is, in a broad sense, the
result of a process of sequential steps by which injuries are transformed into formal disputes.
This process begins with the acknowledgement of an injury and the attribution of blame to
another. These steps create a "grievance". Then the injured party must recognize the
4. The methods states utilize to fund their primary and secondary education systems will be discussed in greater detail later in this chapter. The financing cases themselves will be discussed in detail in chapter two. possibility of legal recourse. It is only then that a potential litigant can make the decision about whether to proceed with legal action to resolve the grievance.
This approach is relatively new to scholarly inquiry into the genesis of adjudication3.
Traditionally, the existence of a grievance with the capacity to be formally litigated has constituted the starting point of inquiry. The disputes themselves were generally assumed to exist (Miller and Sarat, 1981, p. 525). Only relatively recently have scholars examined the
"transformation" of disputes from their inception as injuries to the commencement of formal, legal action (Boyum, 1983; Felstiner et al., 1981; Galanter, 1983; Miller and Sarat, 1981).
The collected body of research on the decision to litigate in general and the transformation of disputes in particular has concentrated almost exclusively on civil litigation designed to resolve narrow, individual disputes. A number of efforts have brought into focus the variables which are important when these litigation decisions are made6. The question is whether this understanding of the decisions of private individuals to litigate civil disputes can be utilized in an analysis of similar decisions made by public actors in the context of policy conflict. In other words, is the decision to litigate susceptible to the influence of the same variables across types of decision makers and categories of disputes? For the purposes of this dissertation, the primary question is whether variables found to be important in private litigation decisions are applicable to the decisions of local school boards to join suits against the state over the issue of education finance?
Obviously, political actors such as elected school boards are quite different from private citizens in a number of ways. Most importantly, the character of American politics is
5. Felstiner et al. (1980-81) were among the first to utilize this approach in the study of litigation decisions.
6. Chapter three presents a thorough discussion of this area of research. 6
introduced into the litigation decisions of the former. In addition, the decisions of local
districts to bring suit against the state are played out against the backdrop of American
federalism. This provides a set of inter-governmental relationships which will have an effect
on decision making. However, one of the primary objectives of this research is to argue that
the fundamental nature of the decision to litigate remains subject to the same general
influences regardless of the decision maker and the context in which the decision is made.
This chapter proceeds with a discussion of the formal and informal components of the
relationship between local school districts and state government. The chapter then turns to a
more focused discussion of this relationship within the context of the administration and
financing of primary and secondary education.
STATE-LOCAL RELATIONS
The American federal system contains literally tens of thousands of governments,
ranging from a singular national government to the governments of the fifty states to the
multitude of local governing bodies. The defining characteristic of American federalism is
that its sub-national governments have consequential powers. This criteria places the United
States among the "...most thoroughly federal countries in the world today." (Nathan, 1990,
pp. 232-233)7.
7. Nathan utilizes six categories in his analytical framework designed to assess "consequential powers": 1) legal powers, 2) revenue powers, 3) functional-area authority and responsibility, 4) historical, social and cultural identification, 5) role in the affairs of the central government and 6) power over local units. 7
The diffusion of governmental power in the United States is not an accident of history. In fact, the primary motivation for the utilization of a federal system is the prevention of the accumulation of power in one place.
The argument goes something like this: the centralization of governmental power breeds tyranny, where tyranny is essentially defined as the systematic exploitation of most of the populace by a narrow self-serving few. (Ducat and Chase, 1983, p. 356)
The Constitution formalizes the diffusion of powers between the national government and the states by defining powers that are denied the national and/or state governments and enunciating individual rights which cannot be abridged by either (Hanson, 1990). In addition,
Grodzins (1963) argues there are a number of informal mechanisms which prevent too much centralization of power, including the nature of American politics and the difficulty of dividing governmental functions.
The multitude of governments does not mask any simplicity of activity. There is no neat division of functions among them. If one looks closely, it appears that virtually all governments are involved in virtually all functions...The federal system is not accurately symbolized by a neat layer cake of three distinct and separate planes. A far more realistic symbol is that of the marble cake. (pp. 1-3)
The interaction between governments in the United States is thus a continuous fluctuation between cooperation and competition as each seeks to provide services and protect policy domains.
There are three sets of inter-governmental relations within the American federal system: national-state, national-local and state-local. The relationship between the national government and the states is the only one formalized in the U.S. Constitution. The documentation of spheres of power, responsibility and influence within the relationship makes it federal in nature. It is a relationship about which a good deal is known. A large number of research efforts have examined in detail the legal nature and political character of this relationship (see, for example, Elazar, 1984; Grodzins, 1963; Key, 1956)®, utilizing a variety of approaches (Rosenthal and Hoefler, 1989).
The U.S. Constitution makes no mention of local governing bodies of any kind.
Local governments are instead creations of the state. The relationship between state and local governments is therefore unitary rather than federal. State governments construct local governments to perform particular duties, such as the provision of services and the maintenance of order. Typically, the "terms of existence" of local bodies are enunciated in charters of incorporation or special acts of state legislatures (Hanson, 1990, p. 63).
The legal definition of state-local relations was first enunciated and is currently maintained by what has become know as "Dillon's Rule”. In 1868, Judge John Dillon handed down the opinion in Citv of Clinton v. Cedar Rapids and Missouri Railroad Company.
The true view is this: Municipal corporations owe their origin to and derive their powers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control...[Local governments] are, so to phrase it, the mere tenants at will of the legislature.
The U.S. Supreme Court etched Dillon’s Rule firmly into federal doctrine in 1903 (Atkins v.
Kansas). Localities therefore enjoy only those powers granted to them in documents designed by, and subject to the alteration of, the state. This places local governments in a completely subservient legal position in relations with the state. This is true of all types of local governments, including the governing bodies of townships, cities, counties, property zones and school districts. The judicial declaration of state preeminence in state-local relations generally discourages localities, such as school districts, from formally challenging state actions in court.
8. For an in-depth discussion of the legal intricacies of this relationship, see Ducat and Chase (1983), chapter five. It would be an error to claim, however, that localities are merely administrative arms
of the state. One cannot characterize the general relationship between the two as equivalent to
master-servant. It is true that state legal authority is uncontestable in the context of these
relations. However, there is a difference between legal authority and power. Localities
possess a number of political weapons which allow them to partially mitigate the legal
authority of the state.
Perhaps the most potent political weapon localities bring to interactions with the state
is the pervasiveness of localism in American society. Local generation and determination of
public policy is central to American heritage and affects the way government operates and
decisions are made. There are a number of justifications for local control. First, local
governments are perceived to be inherently more democratic than their state and national
counterparts. This is because individual citizens can exercise a relatively high level of
influence over local decision makers (Grodzins, 1963). Second, local control allows for
better adaptation of public policies to deal with diverse local concerns. Finally, the bias for
local control is self-reinforcing. The preference for local control creates a certain level of
hostility toward policy decisions made on the state or federal level. This hostility can hamper
the effectiveness of particular policies by eroding local support for them. On the other hand,
local decisions often receive greater support and are therefore more effective.
This bias for localism can often be a powerful influence on state government decisions
in the context of relations with localities.
Representation in the legislature is by locality, if not local government, and elected representatives often have prior experience in local affairs. They are sensitive to the desire of local policy-makers for autonomy, and they quickly learn of resentment over state mandating and other practices that infringe on local determination...Members of the legislature are therefore not inclined to enact measures that localities find too objectionable. (Hanson, 1990, pp. 64-65) 10
In other words, localism acts as a informal mechanism which tempers decisions state governments make about issues of local concern9.
As mentioned above, there has been an enduring interest in American federalism on the part of political science researchers. However, this scholarship has generally been limited to analyses of national-state relations. Much less attention has been given to state-local relations. One reason for this dearth of literature has been the paramount importance of the national-state relationship to the function of American government for much of the twentieth century.
However, in the last two decades, state and local governments have reasserted themselves. This is the result of a variety of factors. Perhaps most importantly, there continues to be a general disenchantment with and distrust of policies originating from the national government. This has influenced the rise to power of officials, most notably
President Ronald Reagan, who fervently believe in the necessity of decreasing the power of central government. Consequently, in the 1980s the responsibility for the provision of a number of services devolved, by choice or circumstance, to state and local governments. The subsequent increase in the vitality and importance of these governments has increased the relative significance of their actions and interactions.
Consequently, the amount of scholarly attention paid to states and localities and their interaction has increased substantially. Recent research on inter-governmental relations has expanded in scope to more fully encompass state-local relations within descriptions of the
American federal system (Dye, 1990; Nice, 1987; Wright, 1988). In addition, work focused
9. There are other political resources localities possess in their relations with state government, including local party influence within state political parties (Bibby et al., 1990), unified lobbying of state officials through associations and coalitions of local governments (Thomas and Hrebenar, 1990) and local government appeals to the national government (Glending and Reeves, 1984; Nice, 1987). 11
upon specific policy areas, such as budgeting (Wildavsky, 1990) and corrections (Thompson
and Mays, 1991) is devoting more attention to state-local relations10.
PRIMARY AND SECONDARY EDUCATION IN THE U.S.
The increasing prominence of state and local governments has strengthened the degree
of interdependence across levels of government in the American federal system. More than
ever before, all three levels of government in the United States are intrinsically involved in
nearly every category of American public policy. Nowhere is the inter-connected nature of
American government better exemplified than in primary and secondary education.
By virtue of the Tenth Amendment to the U.S. Constitution, state governments have
the responsibility to provide and maintain systems of primary and secondary education. State
governments, in turn, created local education authorities (LEA) designed specifically for the
purpose of managing local education systems. There are approximately 14,000 LEA in
existence today (Wirt and Gove, 1990).
For its part, the national government has played only a small role in primary and
secondary education throughout the nation’s history". It was not until The Elementary and
Secondary Education Act of 1965 that the national government became directly involved,
mainly by providing funds for poor school districts. This began a series of grants and
regulations that increased the role of the national government (Wirt and Gove, 1990).
However, its fiscal contribution in particular and its involvement in education in general
10. Books and articles about specific aspects of state-local relations, such as financing (Aronson and Hilley, 1986) have been around for some time.
11. The federal role was generally limited to the provision of public lands for the construction of schools (Bromell, 1991). 12 remain relatively small. In 1990, the federal government contributed only 6.3% of the
$172.4 billion dollars spent on public primary and secondary education.
On the other hand, state and local governments make substantial contributions to education. State governments are the largest source of education dollars, contributing, on average, 49.4% of education revenue. Local governments provide the remaining 44.3%.
However, there is a good deal of inter-state variation in the size of local fiscal responsibility for education. Local contributions as a percentage of education spending range from 11.6%
(New Mexico) to 89.6% (New Hampshire). Most states (36) fall into the range of 30-60%
(Calkins, 1990).
As with any other locally administered function, state governments possess complete legal authority over education. However, that authority has been traditionally exercised through the setting of broad goals and guidelines. There is some variation across states, particularly along regional lines (Mitchell et al., 1989), but generally education has been left largely in the hands of local school districts and their locally elected and appointed officials.
Districts have had almost complete control over the day-to-day operations of schools, as well as decisions about curriculum, instructional methods, physical plant, logistics and personnel.
Local control over education is indicative of the widely held perception that the most informed and appropriate policy decisions are local decisions. In fact, education provides the best example of the prominence and intensity of this belief in localism.
No term in the lexicon of American education is more revered than "local control". Honored alike by the National Education Association and the Republican Party, it is a phrase with iconic overtones, much like "academic freedom", "the three R’s", and "equal opportunity". That local control is a good thing is assumed; that it may not be frilly realized is acknowledged, but regretted; that it distinguishes the United States from more centralized societies and more uniform political cultures is celebrated. Critics and dissenters are few and, perhaps, eccentric. (Doyle and Finn, 1984, p.77) 13
Localism embodies a general attitude toward and philosophy about education dominant for much of American history. The institution of education affects what Americans care most deeply about: children. With the exception of the immediate family, schools provide the most potent tool for instructing children on their personal heritage, the tradition of American society and the current condition of that society. Localities are adamant that this knowledge is best passed to succeeding generations by county, city or neighborhood schools which are the personification of their communities. Local control insures that members of those communities in general, and parents in particular, have a powerful influence over what is taught (and, in some circumstances, what is not taught) and the atmosphere in which the instruction takes place. For most of this nation’s history, this philosophy guided the provision and maintenance of American education. State governments, and to a lesser extent the federal government, provided broad direction and allocated financial resources, but left education to the localities.
Of course, local control is not without disadvantages. Occasionally, the state and/or federal governments have stepped in to alleviate some of the negative consequences that resulted from local direction. The primary result of reform measures throughout the twentieth century was to erode local dominance as non-local actors stepped in to solve problems and leave a collection of regulations and mandates behind (Wirt and Gove, 1990). For example, the turn of the century witnessed an increased concern over the role the political parties were playing in education. The Progressive movement in the United States resulted in reforms aimed at removing the influence of political parties. These changes came largely at the expense of local dominance (Chubb and Moe, 1990). This marked the beginning of a gradual erosion of the nearly complete control of localities over education. 14
Perhaps the watershed event in the slow evolution away from local control was produced by the U.S. Supreme Court in Brown v. Board of Education I (1954). It is reasonable to argue that the importance of Brown 1 does not rest in its direct impact upon education systems. It is difficult to make the claim that the decision alone resulted in substantial alterations in education in the United States. The case’s significance may instead result from its psychological impact (Johnson and Canon, 1984). It marked a time of societal re-evaluation of existing attitudes about race, equality and, necessarily, education. It became apparent that local control introduced into primary and secondary schools not only the most important of local traditions but also the most destructive of local prejudices. Racial and religious prejudice, combined with local dominance, led to the construction of school systems that embodied the beliefs of the majority within the locality at the expense of the rights of others. This situation was symptomatic of a more fundamental flaw in community-based education: the inability (or unwillingness) to distribute educational resources equitably (Wirt and Gove, 1990). This is true whether inequity results from prejudice or disparity in property wealth.
Over the last two decades, the erosion of local control generated by a concern for equity in education was compounded by more general concerns about the state of American education.
Whether the criticisms came from average citizens, business leaders, public officials, or educators themselves, they have had common thrust: the schools are failing in their core academic mission...America’s children are not learning enough, they are not learning the right things, and, most debilitating of all, they are not learning how to learn. The signs were there for all to see during the 1970s. Scores on the Scholastic Aptitude Test headed downward year after year. Large numbers of teenagers continued to drop out of school. Drugs and violence poisoned the learning environment. American students consistently did worse than students from other nations on international achievement tests. An emerging awareness of national crisis hit with full force in the early 1980s, when widespread dissatisfaction with the state of American education was granted scientific legitimacy and political weight by a sudden flood of new studies and commission reports, all of them highly critical of the schools and arguing the urgent need for change. (Chubb and Moe, 1990, p. 1) 15
Perhaps the single event that had the greatest level of impact in this "wave" of reform was the publication of A Nation at Risk (1983) by the U.S. Department of Education. It brought about a full-fledged, national discussion of education in the United States. In many instances, it created the "critical mass" among education policy makers that was at least partially responsible for an unprecedented wave of education reform across the country. Because there was a bias against tangible action by the federal government and the local-oriented system did not appear to be working, reform fell largely into the hands of state governments. Many states took up this cause in earnest. The Education Commission of the States reports that between 1983 and 1987, 250 state task forces were created to study every aspect of public education (Wirt and Kirst, 1989).
There has been tremendous variation among commission reports, educators, researchers and the general public as to the reasons for educational decline. Is it a lack of money, inadequate teaching methods, inefficient bureaucratic structure, some combination of these things or does the problem result from flawed assumptions about education? One thing is certain. A lack of agreement on the cause of problems inevitably leads to a lack of consensus over the identity of the most appropriate solution. This lack of agreement makes the task of reform difficult.
Another thing is also certain. There is a great deal of disparity in the extent to which individual school districts across the country experience the problems mentioned above (low test scores, dropout rates, etc.). If there is a pattern to the locations where these problems are most severe, it is in districts where spending per pupil is relatively low. One indisputable fact of American education is that there are often wide disparities between districts in the same state in the amount of money that is spent per pupil. Riddle (1990) reports that every state in the country currently experiences some level of disparity in per pupil spending across 16 districts. More generally, Riddle’s report indicates a great deal of disparity exists in most states. School districts in which spending is relatively low generally seem to suffer disproportionately from low SAT scores, high ratios of students to teachers, low teacher salaries, high drop out rates and low percentages of students who pursue post-secondary education (Bromell, 1991)12.
Criticisms of American education and subsequent reform efforts across the country have had an interesting effect upon the dialogue about financial equity in education. At first, it seemed that discussions about a lack of equity (due primarily to local control) were submerged by larger debates about the quality of education in general. The result was relatively little movement on the issue of equity in the mid to late 1980s. However,
Efforts to raise graduation requirements, expand student testing and assessment, increase teacher salaries and require new services for students (e.g. early childhood, dropout prevention, employment training, etc.) appear to have amplified concerns about the cost of education and seem to have highlighted existing differences in the resources available to implement these reforms. A 1988 review of state education reform initiatives concluded that the performance of state school finance systems (e.g. providing equal resources) affects local ability to respond to those initiatives. (Augenblick et al., 1990, p. VII)
It would seem reasonable, then, that part of the effort at education reform would be aimed at decreasing the level of intra-state spending disparity across school districts. The pursuit of a solution to the problem of inequity in finance begins with an analysis of why such disparities exist in the first place.
12. Among educators, there is a certain level of disagreement as to the appropriateness of such statistics for comparing educational strength of education systems across school districts. While this is not the place to undertake such an argument in either direction, it is reasonable to assume that SAT scores, dropout rates and other statistics do give a rough indication of the relative strength of particular school districts (Educational Testing Service, 1991). 17
SYSTEMS OF EDUCATION FINANCE
Most states utilize the same basic structure to fund their schools13. The vast majority
of currently utilized basic formulas for financing public education were designed in the early
1970s. Most local education authorities receive funds raised at the national, state and local
level. Education finance provides an illustration of a distinctive feature of "fiscal federalism",
which is the extent to which local revenue operations are controlled by state government.
Because of their subservient legal position (described above), localities can levy only those
taxes allowed to them by formal law and informal availability. Local governments, such as
school districts, are therefore forced to employ resources that are not excessively utilized by
higher levels of government. The national and state governments dominate income and sales
taxes as revenue sources14. The main remaining source of revenue is a tax on property
(Aronson and Hilley, 1986). Consequently, localities (who raise nearly half of the funds for
education) depend almost exclusively upon property taxes for their share of education
revenue. In 1987-88, 97.4% of local revenue for schools came from taxes on property
(Augenblick et al., 1990).
The considerable size of the local contributions to education, combined with local
reliance on property taxes, inevitably leads to financial inequalities across school districts.
Inter-district spending for education becomes differentiated because districts differ in the value
of property within their jurisdictions. For example, in the state of Ohio, the average property
tax base for schools is $66,819 dollars per pupil. This ranges from $15,602 dollars in
13. For detailed discussions of issues surrounding education finance, see Augenblick et al., 1990; Educational Testing Service, 1991; Riddle, 1990).
14. State revenue, on average, comes from three sources: sales taxes (33%), personal income taxes (30%), and corporate taxes (8%). The remainder comes from excise and non-income taxes on businesses (Augenblick et al., 1990). 18
Trimble School District to $890,984 dollars in Perry School District (Yost, 1991b). Districts
like Trimble, which depend upon geographic areas with low property values (and therefore
weak tax bases), face the difficult, if not impossible, task of raising enough money to spend
amounts per pupil equivalent to districts with high property values. In effect, a circular phenomenon evolves: The richer districts-those in which the property lots and houses are more highly valued-have more revenue, derived from taxing land and homes, to fund their public schools. The reputation of the schools, in turn, adds to the value of their homes, and this, in turn, expands the tax base for their public schools. The fact that they can levy lower taxes than the poorer districts, but exact more money, raises values even more; and this, again, means further funds for smaller classes and for higher teacher salaries within their public schools. (Kozol, 1991, p. 121).
Property poor districts face numerous constraints on their ability to raise revenue.
Most importantly, there is a weak tax base from which to draw funds. Because of low
property values within their jurisdictions, "property poor" districts must tax at higher rates
than "property wealthy" districts (i.e. districts where property values are high) in order to
raise equivalent levels of revenue. This problem is aggravated by the fact that people who
reside in property poor districts are generally poor themselves, less able to endure the
financial burden of high property tax rates. The difficulty of raising revenue from property
poor areas is further exacerbated by state limits on local tax rates and the amount of revenue
which can be generated from particular sources. Finally, public opinion and local ordinances
within the district place limits on tax rates. The bottom line is that relative spending per pupil
across school districts becomes a consequence of property value within particular districts
rather than an equitable, across-the-state allocation of available funds15.
15. These problems are generally applicable to other potential sources of local revenue, such as income taxes. Most state governments do make some effort to partially offset the problem of disparity by allocating more of the state-level revenue to property poor districts. These efforts have not been successful in alleviating disparities in spending which result from local reliance on property taxes. 19
It would be an error to say, however, that differences in property values are the sole reason for intra-state disparities in educational spending. There is evidence that part of the problem results from differences in the extent of the willingness of districts to support education financially. In other words, there is a good deal of variation in the tax rates assessed within particular localities. On average, districts with greater property wealth also assess higher property tax rates (Hartman, 1988; Riddle, 1990).
ALTERNATIVE RESPONSES TO THE PROBLEM OF INEQUITY
What have local school districts done in response to disparities in education finance?
Galanter (1983) suggests that when someone suffers an injury, there are a number of alternatives available. One course of action is for school districts to simply do nothing (what
Galanter refers to as "lumping it"). A second alternative is to make a claim to those responsible for the injury. State constitutions generally establish legislative responsibility for the provision and maintenance of systems of primary and secondary education. Structural alterations in that system, including the way in which it is financed, would therefore originate in the legislature.
While most state governments have increased their share of the financial burden for education and others have changed components of the financing system, the basic finance structure remains in place in most states. In addition, disparities continue to exist after years of reform. Why? There are a number of reasons, each of which is associated with the extreme difficulty of achieving consensus on the problem (and subsequent solutions) among educators and policy makers in the legislature. This lack of agreement works in favor of the status quo. 20
First, there remains a good deal of disagreement about the necessity of equalized spending.
No matter how the goal of school finance equalization is defined, its desirability, or at least its priority, may be debated. While many individuals place high value on equalization of education resources at least within, if not also between, States, others do not share this value. Part of this debate turns on assumptions about the existence and strength of relationships between educational spending and educational outcomes...available evidence is sufficiently ambiguous to offer support both for those who believe, and those who do not believe, that there is a strong association...(Riddle, 1990, CRS-19) (see also Hanuschek, 1990).
Second, the argument for education reform inevitably conflicts with the belief in localism in education described above. Those who support current financing structures argue that local determination of spending levels is a valuable component of local control over education. In addition, one of the fundamental tenets of American federalism is that "control follows the dollar". It is often assumed that the balance of power in education decision making among levels of government is associated with the relative size of each government’s financial contribution to education. Indeed, the increase in the contributions by state government in the last two decades has coincided with an increase in state involvement in education policy. Many districts are wary of altering the current structure for fear that local control will be further eroded or lost altogether.
At a more fundamental level, there is a tremendous level of inter-district disagreement about education finance. As discussed above, property poor districts suffer under the current structure because of an inability to adequately finance their education systems. On the other hand, school districts with high property values generally support property tax-based systems because of the benefits they derive from such methods. Relatively high property values allow some districts to raise large amounts of money rather painlessly.
Perhaps more importantly, relatively wealthy districts may fear the implications of a more equitable system of finance. Assuming for the moment that there is a need for more 21
equity, this uniformity can presumably be achieved in one of two ways. One is to decrease
the amount of money that the higher spending districts allocate to their education systems
("leveling down"). Obviously, this is an unpalatable solution.
Alternatively, equity can be achieved by increasing the amount of money spent in
poorer districts ("leveling up"). The question then becomes one of finding the money to carry
out this solution. If the problem of inequity lies primarily in the inability of some districts to
raise sufficient funds for their schools from internal sources, then external sources must be
found. Presumably, this would require the state to take some money from relatively wealthy
districts and redistribute it to poorer ones. This "Robin Hood" approach would either take
money already raised for education in wealthier districts or require such districts to increase
their tax rates. It is simply not in the self-interest of wealthier districts to support such a
solution.
A final component of the context of lobbying for change in education finance is worth
noting. Legislatures, as political units, are susceptible to the demands of constituents.
Legislators are particularly attuned to the concerns of those constituents who hold the tools of
traditional political influence, including high levels of turnout and financial contributions to
political campaigns. Generally, individuals who reside in areas of relative property wealth
possess a disproportionate level of these resources and, therefore, a disproportionate level of
political influence in the legislature. These individuals have a vested interest in the status
quo, which funds their schools well and keeps their taxes low. The result is that those who
benefit from the current structure of financing possess the power to maintain its existence.
According to Galanter (1983), the third alternative in dispute resolution is to appeal to an outside party. In this case, the most relevant third party is the state court system. School districts across the country and individuals within in them are becoming less inclined to quietly accept inequity and more frustrated with attempts to gain legislative solutions. As discussed above, since 1971, 57 past and current cases have been brought in 43 states seeking a judicial resolution to the problem of inequity in education finance. These suits are most often brought by coalitions of school districts. However, never have all districts in a particular state joined one of these coalitions. The question is why.
The history of and the legal issues involved in these lawsuits constitute the subjects of chapter two. Chapter three sets forth the theoretical foundation and the hypotheses for an analysis of the decisions of school districts over whether to become parties in these suits.
Chapter four explains the research design utilized to test these hypotheses. Chapters five through nine analyze the fit between the hypotheses and empirical data collected from five states where education finance litigation is pending: Alabama, Arizona, New Hampshire,
Ohio and Virginia. Chapter ten is reserved for summary and conclusions. CHAPTER II
A HISTORY OF EDUCATION FINANCE LITIGATION
In 1967, John Serrano had two children who were attending a public school in the Los
Angeles area1. He became aware of the generally poor quality of the school his children
attended and the services it provided. He voiced his concern to the principal, who told Mr.
Serrano that the school simply could not afford to provide adequate instruction and services.
According to Mr. Serrano, the principal told him "You’ve got a couple of very bright kids —
get them out of East L.A. schools if you want to give them a chance." (Reinhold, 1972, p. E-
1) If his children were to have a better education, Mr. Serrano was advised to move to one
of the wealthier school districts nearby.
The education system in California in the late 1960s mirrored much of the rest of the
nation. Mr. Serrano lived in an area where property values were low. This prevented the
local school district from raising funds sufficient to provide a well-financed education. There were, however, several school districts in neighboring areas where property values were relatively high. These property values provided these localities with more adequate resources for the provision of revenue for their schools.
1. Much of this chapter is drawn from Franklin et al., 1987. In addition, a variety of detailed analyses provided information on the education finance cases (Dayton, 1991; Franklin et al, 1990; Salmon et al., 1986; Strickland, 1991) and the legal issues surrounding them (Bailey, 1991; Hubsch, 1989; Rice, 1988).
23 24
SERRANO V. PRIEST
The Issues
Recognizing what he perceived as an injustice, Mr. Serrano joined with other parents
and brought suit against the California State Treasurer, Ivy Baker Priest. First, the plaintiffs
argued that the current education system violated the equal protection clause of the Fourteenth
Amendment to the U.S. Constitution. Second, they argued that the system violated the equal
protection clause of the California Constitution. Serrano v. Priest (1971) eventually made its
way to the California supreme court.
In 1969-70, the assessed valuation of property per student across California school
districts ranged from a low of $103 dollars to a high of $952,165 dollars (Franklin et al.,
1987, p. 21). Because much of the revenue for education came from property taxes, the
plaintiffs argued that the school finance system created "wide variations in the amount of
money spent per pupil" (Serrano v. Priest. 1971, pp. 346-347). The result was that the
amount of money spent on a particular child’s education was partially a function of the value of property within the district in which the child lived. The wealth of the area in which a child lived was, in turn, largely a consequence of the wealth of his or her family. Generally speaking, then, poor children attended schools where spending was relatively low. Therefore, according to the plaintiffs, school children were being classified on the basis of wealth, denying them the equal protection of the laws entitled to them under the U.S. and California
Constitutions.
The critical link that the plaintiffs attempted to make was between the amount of money spent on a child’s education and the level of educational opportunity provided to that child. The fundamental problem with the system of financing, according to the plaintiffs, was that children in relatively poor school districts were harmed. Harm was claimed to have resulted from the fact that these children were not afforded the same standard of educational
quality to which children in wealthier districts were accustomed. An inability to provide this
link would have rendered the suit meaningless because no harm was resulting from the system
of finance itself.
By this time, the Supreme Court of the United States had developed a method for
determining whether the equal protection clause of the U.S. Constitution was being violated
by particular government policies. As the California supreme court stated:
As recent decisions of this court have pointed out, the United States Supreme Court has employed a two-level test for measuring legislative classifications against the Equal Protection Clause "...in cases involving ’suspect classifications" or touching on ’fundamental interests’ [fns. omitted] the court has adopted an attitude of active and critical analysis, subjecting the classification to strict scrutiny. [Citations.] Under the strict standard applied in such cases, the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose." (emphasis added by court) (Ibid, p. 1249)
Accordingly, there were two initial questions that the California supreme court had to address
in Serrano. First, was classification based upon wealth "suspect"? Second, was education a
"fundamental interest"? If the answer to either question was in the affirmative, then the court
would apply strict scrutiny to the challenged policy. If the answer to both questions was no,
then the state of California simply had to provide a rational basis for the system of education
finance.
Relevant Precedent
The California supreme court had fairly clear guidance on the meaning of the
Fourteenth Amendment’s equal protection clause. However, there was less clarity about its application within the context of legal challenges to property tax-based methods of education finance. This was not the first time property tax-based financing systems were brought to the attention of the American courts. As early as 1912, the supreme court of Maine had the 26
opportunity to pass judgement on the state system of education finance. Part of the
distribution of education funds in Maine was based upon property value and subsequently
created spending disparities. The plaintiffs in the case argued that this violated the education
article of the Maine Constitution. The article read:
A general diffusion of the advantages of education being essential to the preservation of the rights and liberties of the people, to promote this important object, the Legislature are authorized and it shall be their duty to require the several towns to make provision, at their own expense, for the support and maintenance of the public schools... (Sawyer v. Gilmore. 1912, p. 678).
The plaintiffs sought to focus the court’s attention on the phrases "general diffusion"
and "duty...to make provision". It was argued that the diffusion of funds for education was
not "general", but was instead based upon property wealth. This adversely affected relatively
poor school districts. Under the current system, then, the legislature was not fulfilling its
"duty". The supreme court of Maine chose instead to concentrate upon the words
"Legislature are authorized". In the court’s view, Maine’s Constitution was very clear as to
who should make decisions about the system of education in the state.
...the extent of the requirement [in the Constitution] is left wholly to the discretion of the Legislature, because their duty is to require the several towns to make "suitable" provisions. Who is to determine what is suitable? Clearly the Legislature itself. (Ibid, p. 680)
The plaintiffs had also argued that the system violated the guarantee of equal protection in the Fourteenth Amendment to the U.S. Constitution. This argument was rejected as well. The court found that the education finance system treated everyone in the same manner and was therefore non-discriminatory.
This began a series of decisions in state supreme courts across the country which followed the logic of complete deference to legislatures on the question of school finance, even in the context of wide disparities in spending across school districts. State courts in
Ohio (Miller v. Korns. 1923), Pennsylvania (Ehret v. School District of Borough of 27
Kubmont. 1939) and Oklahoma (State ex Rel. Board of Education of Citv of Saouba v. State
Board of Education. 1947) declared that determinations about the structure of systems of
education were legislative rather than judicial.
It wasn’t until 1966 that a state supreme court took it upon itself to pass judgement on
the constitutionality of the spending disparities themselves. In Ingram v. Pavton (1966), the
plaintiffs argued that the state of Georgia created disparities as a result of the way districts
were categorized for the purpose of collecting and distributing state funds for education. In
its decision, the Georgia supreme court acknowledged the existence of wide disparities among
school districts in spending per pupil. However,
In many decisions of this court, the right of the General Assembly to classify the objects and subjects regulated on a different basis has been sustained where such classification is not arbitrary but has a reasonable relationship to the subject matter, object and purposes of the statute... (Ingram v. Payton. 1966, p. 829).
Deciding that the current system of financing met the qualification of a reasonable relationship to the provision of education and that the classification of students was arbitrary, the court decided in favor of the state.
The United States Supreme Court had yet to address the issue of education finance when John Serrano brought his suit against the state of California2. The Court had issued several related decisions. These decisions left many with the impression that the Court would be inclined to look favorably on plaintiff claims under the Fourteenth Amendment in this area.
In fact, members of the faculty at the University of Chicago published a book in 1968 which predicted that the Court would soon be presented with a challenge to property tax-based
2. Lower federal courts had made decisions in cases where property tax-based financing systems were challenged, although in most cases indirectly. In each instance, the federal courts upheld the systems, most often on the basis of the limited role of federal courts in the assessment of state-managed education systems (see LeBeauf v. State Board of Education of Louisiana [19651, Burrus v. Wilkerson [1970] and Board of Education of Louisville v. Board of Education of Jefferson Countv [1970]. 28
financing of schools. In such a case, the Court would declare the system to be
unconstitutional.
Four sets of cases, decided by the Supreme Court, provide the basis for arguing the unconstitutionality of inequalities in educational opportunity. These cases, in their concern for equality, demonstrate how the Court has approached similar problems and give rise to the possibility that it will act on educational inequality. First, Brown v. Board of Education was a decision to eliminate discrimination in education based upon color. Second, the indigent criminal cases were decisions to eliminate discrimination in the administration of justice based upon wealth. Third, the legislative apportionment cases were decisions to eliminate discrimination in voting based on location of residence. Finally, the poll tax was a decision to eliminate discrimination in voting based upon wealth. (Wise, 1968, p. 32)
The authors of The Quality of Inequality (Daly, 1968) predicted a Supreme Court decision
favoring plaintiffs like John Serrano.
I should tell you then, with some assurance, that sooner or later the Supreme Court will affirm the proposition that a State is obligated by the equal protection clause to afford equal educational opportunity to all of its public school students. (Kurland, 1968, p. 47)3
Brown is particularly instructive. It established that school systems could not discriminate on the basis of color. But equally important was the Court’s pronouncement that education is of substantial importance to the public interest (Davis and Schwartz, 1987).
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. (Brown v. Board of Education I. 1954, p. 493)
In 1968, the Supreme Court declined its first opportunity to hear arguments about the need for fiscal equality in education. In Mclnnis v. Shapiro (1968), the U.S. District Court of the Northern District of Illinois refused to strike down the financing system that created disparities. The district court cited a lack of "discoverable and manageable standards" by which to apply the Fourteenth Amendment in the case. On appeal, the Supreme Court
3. However, this prediction was tempered by the caveat that "The correctness of these inferences can be established only by the holdings of the Supreme Court." (Wise, 1968, p. 32) 29
affirmed the lower court’s decision without discussion. The Court refused to hear reargument
in Burrus v. Wilkerson a year later (Salmon, et al., 1986).
The Decision
It was left to the California supreme court to establish such standards when it decided
Serrano v. Priest on August 30, 1971. The court began with a factual analysis of the current
state of education spending in California. The court concluded that there existed a large inter-
district variation in the amount of money spent per pupil. The court determined that this was
primarily a function of the value of property across districts4.
Given this factual background, the court moved to the question of the constitutionality
of the system. The primary question revolved around what level of scrutiny to apply. The
plaintiffs claimed that residence in a property poor district was a "suspect classification" and
that education was a "fundamental interest". If true, these claims necessitated the use of
"strict scrutiny" in the examination of the education finance system.
On the question of whether wealth is a suspect classification, the California court cited
numerous prior decisions by the U.S. Supreme Court (Serrano v. Priest. 1971, pp. 1251-
1252). The decisions were primarily those dealing with criminal prosecutions and voting rights. The conclusion was that the Supreme Court had established that individuals cannot be classified on the basis of wealth. This is true even in the absence of discriminatory intent.
Wealth was indeed a suspect classification.
4. Like many other states, California’s state government operated an equalization program which sought to reduce disparities by providing additional money to relatively poor districts. Again like most states, the equalization program did not eliminate inequities in spending per pupil. 30
In the case of the education system in California, the court accepted "irrefutable"
evidence that a child’s educational opportunity was based in large measure on the value of
property in their districts. "...[Wle are of the view that the school financing system
discriminates on the basis of the wealth of a district and its residents." (Ibid, p. 1235)
On the issue of whether education was a fundamental interest, the court concluded that
"the distinctive and priceless function of education in our society warrants, indeed compels,
our treating it as a ’fundamental interest’." (Ibid, p. 1258)5
Given the conclusions that classification based on wealth was suspect and education
was a fundamental interest, the court applied the standard of strict scrutiny to the practice of
funding education based on property taxes. The state of California used two arguments to
provide a compelling justification for the system. First, it argued that the classification was justified because it was intended to "...strengthen and encourage local responsibility for
control of education. "(Ibid, p. 1260) As the defendants saw it, local control granted local
governments the power to make effective decisions about the administration of their schools
and the amount of money spent on them.
Second, the defendants argued that if the court found that categorization based upon
wealth violated the equal protection clause, all government activities supported by local taxes
would be unconstitutional. Categorization based on wealth was, to a certain extent, an
inevitable result of tax-based financing (Ibid, p. 1262). This second argument was dismissed rather quickly by the court. The court said that because of the uniqueness of education among
S. It is worth noting that this conclusion was reached even though education is not mentioned in the U.S. Constitution. However, the U.S. Supreme Court had established that interests need not be explicitly stated in the document in order to be fundamental (see Griswold et al. v. Connecticut. 1965, p. 1678). 31
public activities, it clearly needed to be held accountable by the Fourteenth Amendment. This
was not necessarily the case for other government functions.
As for the argument that the desire for local control justified the system, the court
concluded
The individual district may well be in the best position to decide...matters which are either of significant local impact or of such a detailed nature as to require decentralized determination. But even assuming arguendo that local administrative control may be a compelling state interest, the present financial system cannot be considered necessary to further this interest. No matter how the state decides to finance its system of public education, it can still leave this decision-making power in the hands of local districts...Since [the system of financing] does not withstand the requisite "strict scrutiny", it denies to the plaintiffs and other similarly situated the equal protection of the laws...the financial system must fail and the statutes comprising it must be found unconstitutional. (Ibid, pp. 1260-1263)
California thus became the first court to completely overturn a state system of financing6.
THE AFTERMATH OF SERRANO V. PRIEST
The Serrano decision set off a fire storm of optimism among education reformers
across the country. Because nearly every state used methods of finance similar to the one
struck down in California, many felt that Serrano would usher in an area of fundamental
education reform. Words like "revolutionary" and "redistribution" became part of the education vernacular for the first time in two decades.
And many educators view the court ruling just that way. Across the country yesterday, they foresaw as revolutionary the court’s opinion that the local property tax discriminates against children who happen to live in poor districts with meager property tax resources. At one stroke, some educators believe, the court reopened the way for a redistribution of resources in favor of poor communities...Some educators said that the impact of the court’s ruling was in a class with the Brown case... (Maeroff, 1971, p. 48)
6. Previously, the farthest any court had gone on the issue was in the case of Hobson v. Hansen (1966). In that case, the U.S. Court of Appeals had ordered the D.C. school system to equalize pay for teachers in elementary schools. However, in Hobson, the Court of Appeals was faced with inequities between schools in the same district (Horowitz, 1977). 32
Most education policy makers were not completely sure of the direct ramifications of Serrano
for their particular state. At the very least, the decision offered direction to other state courts
in the application of the Fourteenth Amendment in this context.
At the time Serrano was decided, there were active financing cases in Illinois, New
Jersey, Arizona and several other states (Milius, 1971). In addition, litigation efforts were
commenced in a number of other states in the wake of the decision. For example, on October
16, 1971, Michigan’s governor requested that the state’s supreme court pass judgement on the
constitutionality of its method of financing (New York Times. 1971). A year later, the
Michigan state supreme court, in Milliken v. Green I. declared their state’s system of
financing violative of the U.S. Constitution. It was a decision that, in many ways, duplicated
Serrano.
By the middle of 1972, there was a myriad of financing lawsuits active across the
country in both federal and state courts. A great deal of confusion about the issue was
created as lower courts passed differing judgements on financing systems in a large number of
states. Between the time Serrano was handed down in August of 1971 and June of 1972, state courts in Arizona, Michigan, New Jersey and Wyoming and federal courts in Maryland,
Minnesota and Texas were reaching a variety of conclusions as to whether property tax-based systems of finance violate the equal protection clause.
SAN ANTONIO V. RODRIGUEZ
Perhaps in an effort to bring order out of this chaos, on June 7, 1972 the U.S.
Supreme Court agreed to hear the case of San Antonio Independent School District v.
Rodriguez. This caused a temporary cessation of most finance litigation as state and federal 33
courts waited for guidance from the Supreme Court. It also stalled discussion of reform in
many state legislatures as lawmakers waited for the Court’s pronouncement.
The United States District Court for the Western District of Texas had struck down
the Texas system of education finance as unconstitutional under the Fourteenth Amendment.
The state of Texas appealed directly to the Supreme Court. The Justices heard oral argument
on October 12, 1972. The decision in Rodriguez, as in Serrano, came down to the answers
to the following questions: 1) Is wealth a suspect classification? 2) Is education a fundamental
interest? 3) What level of scrutiny should be applied, strict or rational basis? and 4) Did the
system withstand the chosen level of scrutiny?
The Supreme Court’s decision was handed down on March 21, 1973. It was one of
the more eagerly awaited Supreme Court decisions. At the time, 52 education finance
lawsuits were pending in state and federal courts across the country7. The Court readily
acknowledged
substantial interdistrict disparities in school expenditures... largely attributable to differences in the amounts of money collected through local property taxation... (San Antonio Independent School District v. Rodriguez. 1973, p. 17).
The Court began its legal analysis with the question of whether classification based
upon wealth was suspect. According to the Court, in order for a group to claim
discrimination on the basis of wealth, it had to be proven that the group was completely
unable to attain some benefit due to their financial status. In other words, there had to be an
absolute deprivation of the benefit (in this case an education). In Rodriguez, the plaintiffs had
not argued that students in property poor school districts were being denied an education per se. Rather, the plaintiffs in the case argued that the education that these students did receive was inferior. According to the Court, each child in Texas was being provided "...an
7. Of these 52 cases, 27 were in federal courts and 25 in state courts (Greider, 1973). 34
opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of
speech and of full participation in the political process." (Ibid, p. 37)8 Therefore, there was
no absolute deprivation and, in turn, children in poor areas were not the victims of
discrimination9.
The Court then turned its attention to the question of whether education was a
fundamental interest. According to the Court "...the answer lies in assessing whether there is
a right to education explicitly or implicitly guaranteed by the Constitution." (Ibid, p. 34) The
word education is not explicitly mentioned in the U.S. Constitution. The question, then, was
whether education was to be raised to the level of a fundamental interest on an implicit basis.
The Court’s answer was no.
In Brown v. Board of Education. [Citations] a unanimous Court recognized that "education is perhaps the most important function of state and local governments." But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause...It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws...the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State’s social and economic legislation." (Ibid, pp. 34-37)
The Court did not dispute the importance of education. It was, after all, education’s
significance which helped construct the legal foundation for Brown. However, the Court
argued that the designation of a benefit as important does not confer upon it a fundamental
quality.
The utilization of the standard of strict scrutiny was based upon either a suspect
classification or the presence of a fundamental interest. According to the Supreme Court,
8. This line of reasoning allowed the Court to avoid the issue of the link between levels of spending per pupil and educational opportunity.
9. On the other hand, the California supreme court required only a relative deprivation in order to prove wealth discrimination. The court determined that poor children did receive an education, but it was not adequate. 35 neither of these qualities were present in Rodriguez. Therefore, the standard of assessment for the Texas education system was whether there existed a rational relationship to a state purpose. The Court concluded that
...to the extent that the Texas system of school financing results in unequal expenditures between children who happen to reside in different districts, we cannot say that such disparities are the product of a system that is so irrational as to be invidiously discriminatory, (p. 54)
In a 5-4 decision, the Supreme Court held that the system of finance used in Texas did not violate the U.S. Constitution.
A final component of the decision is worth noting. The Court went beyond its decision on the merits to comment upon the role of the judiciary in disputes over education finance. To those who supported the Court’s decision, this final discussion was a statement of the logic of judicial restraint. For those who had hoped for a different outcome in the case, the comment was an enunciation of what might have been if but one vote had changed sides in the 5-4 decision.
In its essential characteristics the Texas plan for financing public education reflects what many educators for a half century have thought was an enlightened approach to a problem for which there is no perfect solution. We are unwilling to assume for ourselves a level of wisdom superior to that of legislators, scholars, and educational authorities in 49 states...The consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various states, and we do no violence to the values of federalism and separation of powers by staying our hand...certainly innovative new thinking as to public education, its methods and its binding, is necessary to assure both a higher level of quality and greater uniformity of opportunity...But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them." (pp. 55-59)
Rodriguez effectively closed the door to challenges of property tax-based financing systems on the basis of the U.S. Constitution10. For state governments, it provided relief
10. The Court’s increased conservatism in the years subsequent to Rodriguez made the overturning of this decision unlikely, even though the original vote margin was slim. In fact, on two later occasions, in Plvler v. Doe (1982) and Papasan v. Allain (1986), the Court reaffirmed Rodriguez. 36 firom the threat of federal judicial intervention into debates over school finance reform. For reformers, the decision represented a setback in efforts to pressure state governments to construct more equitable systems.
LITIGATION IN THE POST-RODRIGUEZ ERA
Rodriguez did not, however, prohibit the bringing of claims before state courts under state constitutional mandates. In fact, as Rodriguez was being decided in 1973, state courts across the country were beginning to become more active in rights-based litigation. During the Warren Court era of the 1950s and 1960s, civil liberties became the dominant area of law on the Supreme Court’s agenda. The Court began to elaborate upon individual rights under the Bill of Rights and the Fourteenth Amendment. This lead to an expansion of the definitions of rights and increased their protection. As for state courts, this
...elaboration of federal law served to retard the development of state constitutional law because, faced with a choice between developed federal standards and inchoate and/or inhospitable state constitutional doctrines, civil liberties claimants increasingly relied on federal guarantees in pressing their claims. (Tarr and Porter, 1988, p. 21)
The advent of the Burger Court in the 1970s, however, introduced a more conservative strain of jurisprudence to the U.S. Supreme Court. One result of this conservatism was to lessen federal judicial protection of a number of individual rights. In response, individuals and groups increasingly turned to state courts for the protection and expansion of these rights (Friedelbaum, 1988). Litigants hoped that state courts would use their own constitutions to define and protect the rights of individuals in the face of what was perceived as retrenchment by the Supreme Court.
As a matter of Constitutional doctrine, federal law sets the floor on rights rather than the ceiling (Spaeth, 1985). State courts are free to grant broader definition to language in 37
state constitutions that is equivalent to words in the federal constitution. However, it had
become the prevailing mode of operation for state courts to accept federal rulings on civil
liberties as definitive and germane to equivalent state constitutional language. For example,
in determining the scope of "equal protection" under state constitutions, state courts relied on
the definition that the Supreme Court gave to the federal due process clause. This was a
reasonable response, given that 1) state courts were dealing with relatively few rights-based
cases based on state constitutional language alone and 2) the Warren Court seemed to be
constantly expanding the categories and definitions of rights under the U.S. Constitution.
In the 1960s, there seemed to be little need for state courts to expand definitions of
rights based upon state constitutional language. Therefore, when rights-based litigation
increased at the state level in the 1970s, state courts were relatively inexperienced in utilizing
the language contained in state constitutions.
Even after the advent of the Burger Court in the early 1970s, which encouraged rights claimants to turn their attention to state constitutional protections, the effects of federal dominance in civil liberties law continued to be apparent...Because the protection of civil liberties law had been ceded for so long to the federal courts, their decisions furnished the intellectual baggage, the doctrines and the precedents, that state court judges brought with them in confronting state constitutional guarantees. Thus, when state judges turned their attention to their own charter, it was only natural for them to look to Federal precedents as a way to invigorate long dormant state provisions. As a result, the categories and conceptions of federal constitutional law have decisively influenced developments on the state level. (Tarr and Porter, 1988, pp. 21-22) (see also Davis and Banks, 1987)
This situation is particularly true in instances where state constitutions contain language
similar or identical to the U.S. Constitution. In cases brought after Rodriguez was decided,
"...[state] courts that base their decisions on equal protection grounds may find it difficult to justify departures from federal equal protection." (Davis, 1988, p. 63)
The bottom line is that Rodriguez, while not eliminating state courts as an alternative
for lawsuits challenging methods of education finance, does make the task of getting favorable
state court decisions much more difficult for plaintiffs. This is significant because of the large 38 number of finance cases active in state courts when Rodriguez was decided. Many legal commentators at the time felt that "...to the extent that these cases were based on the fourteenth amendment, Rodriguez had probably disposed of them." (Strickland, 1991, p.
1132).
However, the news of the death of education finance litigation had apparently been somewhat exaggerated in the wake of Rodriguez. The California supreme court announced that its ultimate conclusion in Serrano remained in effect because the decision was reached on the basis of state constitutional language as well as the Fourteenth Amendment". Only a month after Rodriguez was decided, the supreme court of the state of New Jersey passed judgement on its own finance system. In Robinson v. Cahill (1973), the court began by analyzing the New Jersey Constitution’s equal protection clause. The court discussed
Rodriguez in great detail, but noted
The question whether the equal protection demand of our State Constitution is offended remains for us to decide. Conceivably a State Constitution could be more demanding. (Robinson v. Cahill. 1973, p. 282)12.
The court followed the Supreme Court’s defined method of determining what level of scrutiny ought to be used. The court found that education was not a fundamental interest. It also declared that wealth was not a suspect classification. Consequently, using the rational basis test, the court found that the equal protection clause had not been violated.
11. For its part, Milliken I was overturned by the Michigan Supreme Court nine months after Rodriguez was decided.
12. It is worth noting that the court went to great pains to indicate that the section of the Robinson opinion dealing with the state equal protection clause was written before Rodriguez was announced. The court noted that this section had not been substantially altered by the advent of Rodriguez. 39
This conclusion, however, did not terminate the dispute. The plaintiffs in the case had also challenged the state system of education finance under the education clause of the
New Jersey Constitution. This clause stated:
The legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all children in this State between the ages of five and eighteen years. (Ibid, pp. 287-288)
The argument was that a system that produces inequity in spending across school districts was neither "thorough" or "efficient". The court acknowledged the wide inter-district disparities in education spending. It then turned to an interpretation of the education clause in the context of spending inequity.
We are brought then to the question whether the State has fulfilled its obligation to afford all pupils that level of instructional opportunity which is comprehended by a thorough and efficient system of education... (Ibid, p. 295)
The New Jersey court unanimously declared that spending disparities prevented this obligation from being met.
We deal with the problem in those terms because dollar input is plainly relevant and because we have been shown no other viable criterion for measuring compliance with the constitutional mandate. The constitutional mandate could not be said to be satisfied unless we were to suppose the unlikely proposition that the lowest level of dollar performance happens to coincide with the constitutional mandate and that all efforts beyond the lowest level are attributable to local decisions to do more than the State was obliged to do. (Ibid)
The result was that the system of finance was declared unconstitutional.
If Rodriguez marked the end of the "first wave" of education finance litigation, then
Robinson ushered in the second. The New Jersey supreme court reinvigorated the education reform movement only a month after it was dealt a major setback in Rodriguez. 40
TABLE 1
EVENTS IN EDUCATION FINANCE LITIGATION, 1971-1973
August 30. 1971: The supreme court of California overturns the state’s method of education finance on the basis of the equal protection clause of the California state constitution and the Fourteenth Amendment of the U.S. Constitution.
June 7. 1972: The U.S. Supreme Court agrees to decide whether systems of education finance which create disparities violate the Fourteenth Amendment to the U.S. Constitution.
March 21. 1973: The U.S. Supreme Court decides that systems of education finance which rely on local property taxes do not violate the U.S. Constitution. The California state supreme court ultimately reaffirms its 1971 decision on the basis of the state constitution’s equal protection clause.
April 3. 1973: The state supreme court of New Jersey overturns the state’s method of education finance on the basis of the state constitution’s education clause.
More important, perhaps, Robinson encouraged litigation that challenged state systems of education finance on the basis of education clauses. Nearly every state has such a clause in
its constitution. An analysis of these clauses indicates that, in most cases, the language differs in wording but is similar in ambiguity to the New Jersey clause upon which the Robinson decision was reached. For example, the education clause of the Arizona Constitution reads:
The legislature shall provide for a system of common schools by which a free school shall be established and maintained in every school district for at least six months in each year, which school shall be open to all pupils between the ages of six and twenty-one years. (Shofstall v. Hollins. 1973, p. 591).
On the other hand, the Georgia Constitution reads:
The provision of an adequate education for the citizens shall be a primary obligation of the state of Georgia, the expense of which shall be provided by taxation. (Thomas v. McDaniels. 1981, p. 162) 41
While encouraged by Robinson, advocates of reform were sobered by the limited
utility of the decision itself. First, the New Jersey court followed the Supreme Court’s path
in evaluating the equal protection clause. Second, Robinson indicated only that systems of
education finance could be successfully challenged on the basis of an education clause. The
decision seemed directly applicable only to those cases in which similar language was at issue.
Even in these instances, other state courts were under no obligation to follow New Jersey’s
lead in defining "thorough and efficient". Litigants were thus forced to prove that their
state’s financing system was inconsistent with their state’s own education clause.
LITIGATION AFTER ROBINSON
Serrano. Rodriguez and Robinson were the primary forces guiding the strategies of
plaintiffs and defendants and the decisions of state supreme courts for the next IS years
(Strickland, 1991). During the period between 1974 and 1989, 19 education finance cases
were decided by state supreme courts13. In 11 cases, the state supreme court upheld the
system of financing, while in eight others the court struck down such systems as
unconstitutional.
Thorough reviews of these cases are provided in a number of places14. For the
purposes of this analysis, it is important to recognize that each of the cases in Appendix A
share a number of common characteristics: 1) the disputes were created by intra-state
13. See Appendix I for cases, citations and decisions. These lawsuits were filed by property poor school districts or individuals within such districts or both. Over time, however, the participation of school districts has increased substantially.
14. For information on the cases, see Dayton, 1991; Franklin et al, 1987, 1990; Salmon et al., 1986; Strickland, 1991. For more detailed analyses of the legal issues surrounding them, see Bailey, 1991; Hubsch, 1989; Rice, 1988. 42
variations in spending per pupil across school districts, 2) the plaintiffs directly challenged the
constitutionality of property tax-based finance methods, 3) the challenges were based upon the
equal protection or education clauses of the state constitution or both, 4) no court refused to
hear a case on jurisdictional grounds (Dayton, 1991), 5) each court that assessed the financing
system on the basis of the equal protection clause followed the Supreme Court’s two-tiered
test and 6) each case was ultimately decided on the merits by the state supreme court.
State supreme courts have not been unanimous in their decisions about these financing
systems. This is the case because there are a number of issues about which courts disagree.
First, McQuire (1990) reports that in every case he analyzes between 1974 and 1989, it is the
respective supreme court’s analysis of the equal protection clause that separates constitutional
and unconstitutional systems. There is a clear difference of opinion among courts as to the
standard which must be met under the equal protection clause15. In cases where the equal
protection clause was at issue, every state supreme court that upheld the system used the
rational basis test. In addition, in all but one case where the clause was at issue and the court struck down the system, the strict scrutiny standard was applied16.
Second, state supreme courts have differed as to whether their respective financing systems violate their state constitution’s education clause. The question is whether the words in the education clauses require that the education system spend roughly equivalent amounts
15. For a difference of opinion about wealth as a suspect class, compare Luian v. Colorado State Board of Education (1982), pp. 1020-1021 and Washakie Countv School District #1 v. Herschler (1980), pp. 334-335. For a disagreement over education as a fundamental right, see Hornbeck v. Somerset County Board of Education (1983), pp. 784-787 and Seattle School District #1 v. State of Washington (1978), p. 91.
16. The exception was Dupree v. Alma School District 130. decided by the Arkansas supreme court in 1983. In that case, the court determined that the rational basis test was appropriate, but the system failed to meet that standard. 43
per pupil. If so, then a system which creates substantial disparities violates that constitutional
intent.
Differences of opinion among state supreme courts on this question are due in large
measure to differing interpretations of the meanings of words such as "uniform'', "thorough
and efficient” and "common" which are typically found in education clauses of state
constitutions. Disagreement occurs even when the courts are reading basically the same
language. For example, the Pennsylvania Constitution requires that "The General Assembly
shall provide for the maintenance of a thorough and efficient system of public education to
serve the needs of the Commonwealth." (Danson v. Casev. 1979, p. 366). Using historical
analysis to deduce the intent of the framers, the Pennsylvania supreme court decided that
"thorough and efficient" was not meant as a specific requirement that the schools be uniform.
Therefore, a system which created spending disparities could still be constitutional.
Alternatively, the West Virginia Constitution states that "The Legislature shall provide by general law, for a thorough and efficient system of free schools." (Pauley v. Kellv. 1979, p. 869) Drawing heavily on previous cases decided in other state courts and the historical records of its own constitution, the West Virginia supreme court declared that a system that maintained disparities was not "thorough and efficient".
The third major component of disagreement among state supreme courts rests in decisions about the role of the judiciary in educational policy. Some state supreme courts appear hesitant to decide in favor of the plaintiffs because of a belief that education policy is the province of the legislature. This is true even when the court gives overt recognition to the financial shortcomings of the current system.
Our holding that the current system of financing public education in Georgia is not unconstitutional, should not be construed as an endorsement by this court of the status quo...Plaintiffs have shown that serious disparities in educational opportunities exist in Georgia and that legislation currently in effect will not eliminate them. It is clear that a great 44
deal more can be done and needs to be done to equalize educational opportunities in this state. For the present, however, solutions must come from our lawmakers (Thomas v. McDaniels. 1981, p. 168)
Other courts, however, do not view the legislature’s prominent role in education as
prohibitive to judicial intervention. Quoting Baker v. Carr (1962), the Washington supreme
court, reversing an earlier decision on the issue, stated
Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation and is a responsibility of this Court as ultimate interpreter of the Constitution. (Seattle School District #1 v. State of Washington. 1978, pp. 83-84)
Finally, it was stated earlier in this chapter that the critical link that the plaintiffs have had to make was between the amount of money spent on a child’s education and the level of educational opportunity provided to that child. An inability to provide this link would render a suit meaningless because no harm was resulting from spending inequities. This has been a point of disagreement among state supreme courts as well. For example, the supreme court of Idaho was skeptical in 197S.
...we cannot adopt the ultimate conclusion advanced by respondents, i.e., that unless a substantially equal amount of funds are expended per pupil throughout the state...those students receiving less than that district with the greatest expenditure per student are denied equal educational opportunities...This factor must be stressed in light of the considerable debate among educators and commentators respecting the assumption "that the quality of education varies directly with the amount of funds expended on it and that, therefore, the difference in quality between two schools can be determined simplistically by looking at the differences in per-pupil expenditures." Because of this ongoing argument...we refuse to venture into the realm of social policv...(Thompson v. Engleking. p. 642)
The Connecticut supreme court, in Horton v. Meskill 1 (1977), disagreed:
In most cases, the optimal version of these [quality of education] criteria is achieved by higher per pupil operating expenditures, and because many of the elements of a quality education require higher per pupil operating expenditures there is a direct relationship between per pupil school expenditures and the breadth and quality of educational programs. (Horton v. Meskill I, 1977, p. 368). 45
The ten years following Robinson was a time of inconsistency in education finance
litigation. Most state courts upheld their systems of education finance, based largely upon the
fact that local control provided a rational basis for the system of finance. There were some
courts, however, which did strike down systems of finance.
From the beginning of 1984 through 1988, there was relatively little activity in education finance. Only two cases went to state supreme courts, both of which were decided
in favor of the state government. There are a number of reasons for this lull in activity, but three seem to stand out. First, the trend in favor of upholding these systems probably discouraged potential plaintiffs from seeking judicial redress (Strickland, 1991). This trend is evidenced by the fact that in the last eight cases heard before 1989, courts upheld the financing systems in seven.
Second, the ability of education finance reform to achieve the goal of spending equity was increasingly in doubt. The 1970s saw a dramatic increase in efforts to reform education finance systems. This movement was spurred by a number of forces, including court decisions overturning methods of finance in some states and the threat of legal action in others. Nearly every state was undertaking reforms or studying the issue. It was the prevailing view that this reform movement would bring an end to inequality in the financing of American schools (Sinclair, 1978). However, there was growing evidence that "...reforms of public school financing, heralded as a way to equalize spending for rich and poor students, have apparently done little to accomplish this aim." (Sinclair, 1979, p. A-3). Many of the states where finance reform had resulted in little improvement had been forced into reform by court order. It seemed that perhaps court involvement in particular and reform in general was not the answer. 46
A third reason for the slowdown in education finance litigation can be traced to the
increase in concern about the strength of American education more generally. Publication of
A Nation at Risk and other assessments of education in the United States shifted "...attention
toward efficiency, excellence, and choice in education and away from issues of equity in
educational opportunity." (Educational Testing Service, 1991).
THE THIRD WAVE OF REFORM
The relative silence of education finance litigation was broken in 1989. In that year, state supreme courts in Montana, Kentucky and Texas ruled their systems of education finance unconstitutional. This marked the first occasion that three states struck down their systems of finance in the same calendar year (Strickland, 1991). It breathed new life into education finance litigation by encouraging potential plaintiffs to go to court.
These three cases (Kentucky’s in particular) had two implications for education finance litigation. First, the cases demonstrated, perhaps more than ever before, that the potential impact of a decision overturning the finance system was very strong and very broad.
The Kentucky supreme court had gone further than any court in the breadth of its decision.
Lest there be any doubt, the result of our decision is that Kentucky’s entire system of common schools is unconstitutional ...The decision applies to the entire sweep of the system - all its parts and parcels...[including] the statutes creating, implementing and financing the system and to all regulations, etc. pertaining thereto...(Rose v. Council for Better Education. 1989, p. 215).
The court had mandated the legislature to reconstruct the entire system of education. The result was that in March of 1990, the Kentucky General Assembly passed a comprehensive package of reforms in school finance, government and curriculum (Trumbell, 1990). 47
Education advocates in several states point to these cases in general, and the Kentucky
case in particular, as the events most responsible for spurring litigation in their states17.
"The attitude right now is, ’These other guys won, we’ve got to get going’", according to
John Augenblick, who is an education finance consultant at the Education Commission to the
States (Mitchell, 1990). Suddenly, several lawsuits were commenced across the country. By
one count, there have been 23 lawsuits commenced since these decisions were announced.
While certainly not completely responsible, the cases in Kentucky, Texas and Montana no doubt encouraged those contemplating suits in other states to move forward.
A second set of implications of these decisions deals with the legal reasoning
involved. All three decisions were reached solely on the basis of their respective education
clauses. In each instance, the state supreme court defined the language of the education clause through an extensive historical analysis. In each case, the current system, which created disparity, was found to be insufficient.
Local control was not perceived by the courts as a rational justification for property tax-based systems of finance, even in the absence of a declaration of education as a fundamental interest. According to Bailey (1991), this may have fundamentally altered the way education finance decisions are reached. The two-tiered test for equal protection violations, so critical to the outcomes in cases in the 1970s and 1980s, may have been discarded. In its place is an assessment of education finance systems in light of education clauses alone. These analyses are based primarily upon whether the history and text of the education clause indicates a desire for equality in education spending. An assessment on these grounds does not necessarily require education to be a fundamental interest. Rather, it is only
17. Source: confidential interviews 48
important that it be thought to hold some significance. This significance does appear to
be subordinate to the long-held desire for local control of education.
The implications of this trend are potentially enormous. In 1971, the Serrano decision
broke new ground by being the first to be unswayed by the goal of local control in education
as a justification for property tax-based systems of finance. The California supreme court
stated that when strict scrutiny was applied, local control was not a "compelling" reason to
maintain property tax-based systems of finance. Between 1971 and 1988, there was never a
time when a state supreme court ruled that local control met that level of scrutiny. Serrano
and like-minded decisions heightened the state’s constitutional responsibility for education.
Rose v. Council for Better Education and the other post-1988 decisions increased the burden of proof still further. These decisions declared that local control was not an "adequate" justification, much less a "compelling" one, for a lack of equity in spending. This reasoning may further inhibit the ability of states to defend current methods of finance which create disparities.
It is also important to note that these decisions reflected innovation as state courts took broader perspectives, investigating the extent to which the entire system of education met the constitutional standards of efficiency and uniformity. The Kentucky court went so far as to suggest a set of criteria by which to determine whether an education system is efficient. The court enunciated nine characteristics of an efficient system and seven "capacities" that such a system should provide to every child. (Rose v. Council for Better Education. 1989, pp. 212-
213). 49
THE FUTURE OF LITIGATION
The question is whether this "map" in particular or the decisions in general in
Kentucky, Texas, Montana and now New Jersey (which in 1990 overturned its financing
system in Abbott v. Burke) will be utilized by other state supreme courts. It is well-
documented that states pay attention to each other in the development of legal doctrine.
...the process of judicial decision is conducive to sympathetic consideration of policy innovation by sister courts...Although these decisions do not constitute authoritative precedents, the frequency of intercourt citations suggests that they may nonetheless prove persuasive... Furthermore, such precedent may provide justification and encouragement for boldness on the part of less adventurous courts..." (Porter and Tarr, 1982, p. XXI) (see also Caldeira, 1985)
Serrano and Robinson ushered in an era of state judicial involvement in education
finance. These cases did so by breaking new ground in state constitutional doctrine. This gave several other state supreme courts guidelines by which to measure their own systems.
Indeed, several courts ruled their systems of finance unconstitutional, in many instances relying heavily on the courts in California and New Jersey. It may be that the decision in
Kentucky and other cases present state courts with the opportunity and justifications they need for overturning their own systems of finance in particular or their systems of education in general.
The recent plethora of lawsuits suggests that plaintiffs think that their state courts will be influenced, if not persuaded, by the legal reasoning in these cases. But the encouragement that potential plaintiffs receive from cases in other states cannot provide the total justification for becoming involved in education finance litigation. There are other considerations as well. CHAPTER III
A MODEL OF THE DECISION TO LITIGATE THE DISPUTE OVER EDUCATION FINANCE
Scholars have long been interested in various aspects of American judicial process.
An abundance of research has been conducted on a variety of topics, ranging from the initial processing of civil and criminal cases to the implementation and impact of judicial decisions1.
For much of its history, legal scholarship generally, if not exclusively, examined the law as a product of case processing by legal institutions. Cases were often treated as merely the vehicles through which judicial institutions affected particular individuals and society as a whole.
PREVIOUS RESEARCH ON LITIGATION
Scholarship that focuses on the genesis of the cases themselves is a relatively recent phenomenon. This broader perspective analyzes judicial processes and subsequent law within the context of a consequential social environment. Hurst (1956) was the first to treat legal history as primarily a social product (Friedman, 1990). His work marked the beginning of research directed at the understanding of the law as a consequence of the social forces, external to the judiciary, which create legal disputes.
1. For a recent discussion of the broad array of judicial politics research, see Gates and Johnson, 1991.
50 51
This more recent perspective is grounded in the nature of the American judiciary.
American courts are primarily reactive institutions. Legal institutions
...do not, traditionally, possess the power to place an issue upon their own agendas. Rather, they must wait for others to bring disputes and issues to them before they can attempt to participate in the process of resolving them. (Casper, 1972, p. 4).
The reactive nature of courts means that those individuals, organizations, businesses and
governments who commence lawsuits are essential to legal processes in the United States.
Courts are important to private and public disputes only to the extent that they are formally
utilized by injured parties2. Perhaps the crucial question for American judicial process
research, then, is: Why do plaintiffs choose to formally litigate disputes?
It is important to indicate from the outset that this research draws a distinction between private and public disputes. For the purposes of the analysis presented here, private refers to disputes 1) between private individuals or between private individuals and private economic (i.e. businesses, corporations, etc.) or social (i.e. clubs, churches, etc.) entities aod
2) in which the outcome will likely affect only the direct parties to the case. On the other hand, public refers to disputes in which 1) at least one party in the case is a government institution and 2) the outcome will affect some area of public policy3.
The search for an answer to the question of why plaintiffs choose to litigate begins with the recognition that not all legal injuries result in formal litigation (Bumiller, 1988).
Injured parties who decide to litigate are only a small subset of all those who suffer injury.
In other words, there is a distinction between potential plaintiffs (those who suffer an injury due to the actions of another) and actual plaintiffs (those who suffer an injury due to the
2. Courts do not necessarily have to be formally utilized in order to be involved in the resolution of private and public disputes. The threat of legal action may sometimes play an important role in attempts to resolve disputes (see Ross, 1970).
3. There are, of course, some disputes which do not fit neatly into either category. 52
actions of another and choose to go to court). The question of why a plaintiff commences
formal litigation is, in essence, a question of why some potential plaintiffs litigate while others
do not.
The choice of litigation as a source of dispute resolution is not the result of a single
decision. Rather, litigation is, in a broad sense, the result of a multi-staged process by which
injuries are transformed into formal disputes (Felstiner et al., 1981). This process involves 1)
the perception of an injury, 2) the attribution of blame for the injury to another party, 3) the
recognition of the potential for legal recourse and 4) the decision to take advantage of this potential. It is within this process of "transformation" that the subset of litigated disputes is
separated ffom all legal injuries.
The transformation of disputes from injury to potential litigation has not, however, traditionally been the focus of research on the decision to litigate.
Disputes are generally taken as givens. The existence of a dispute typically becomes the starting point for inquiry into its subsequent development and resolution...The origins and content of disputes are seldom considered. The occurrence of disputes or the social context of disputing is seldom a subject of inquiry. (Miller and Sarat, 1981, pp. 525-526).
It is only relatively recently that scholars have examined the development of civil disputes from their inception as injuries to the commencement of formal action (Boyum, 1983;
Felstiner et al., 1981; Galanter, 1983; Miller and Sarat, 1981).
Research in this area has concentrated on civil litigation designed to resolve private disputes4. A benefit of this concentration has been the development of a substantial literature on the forces which influence decisions to litigate within this context. A negative consequence is that relatively little is known about the decision to litigate public disputes.
4. For a recent review of the literature on private dispute resolution, see Law and Society Review (1990), Volume 24, Number 2. 53
This is not to say that little is known about public (or policy-centered) disputes. On
the contrary, there is an abundant literature on litigation in which a particular public policy
lies at the center of a dispute. Most examinations of public disputes have been case studies,
focusing upon a particular case or limited set of cases involving a limited number of
participants. These studies have examined cases involving the rights of particular groups such
as African-Americans (Dreyfuss and Lawrence, 1979; Kluger, 1974; Tushnet, 1987; Vose,
1959), children (Lehne, 1978; Mnookin, 1985), the disabled (Cooper, 1988; S. Olson, 1984),
women (O’Connor, 1980) and the poor (Lawrence, 1990), as well as issues such as capital
punishment (Meltsner, 1973) and the separation of church and state (Sorauf, 1974)5.
However, the knowledge accumulated on policy-centered litigation, generally dependent upon relatively narrow case studies, is necessarily limited in the extent to which patterns of behavior can be deduced. Much of the problem stems from the fact that policy- centered cases are often unique. It is rare that a large number of parties undertake decisions to litigate on a common topic within the context of policy-centered disputes. This prohibits the utilization of statistical techniques that would allow for the development and testing of hypotheses about potential plaintiff behavior in policy-centered disputes. This is not, however, a problem for analyses of certain categories of private litigation, where literally thousands of parties can make decisions under relatively equivalent conditions6. For
5. For a collection of case studies in a number of areas, see Neier, 1982 and Irons, 1990. There is also a good deal of research on more general issues surrounding policy-centered litigation, such as the legitimacy of court involvement in public policy (see Melone and Mace, 1988) and the ability of courts to take policy action (see Johnson and Canon, 1984).
6. Of course, what case studies may lack in breadth they make up for in depth and detail. On the other hand, much of the quantitative work on civil litigation decisions necessarily deemphasizes individual cases. "The evolution of conflict, the idiosyncratic paths that ultimately lead plaintiffs and defendants to the courthouse, are lost in this kind of research." (McIntosh, 1991, p. 293). 54
example, every year large numbers of consumers contemplate going to court to seek redress
for defective products (Best and Andreasen, 1977).
Litigation concerning systems of education finance provide an opportunity to analyze
the decisions of large numbers of potential plaintiffs in the context of policy-centered disputes.
Coalitions of local school districts in a number of states have filed lawsuits which seek the
equalization of inter-district spending per pupil. However, there is no case in which all
districts within a particular state join the coalition of plaintiffs. The question is why some
school districts join these coalitions while other districts in the same state decide against
involvement7.
This chapter seeks to develop a model of how the dispute over education finance is
transformed into litigation participation for some districts and not for others. The model can
then be systematically tested because of the availability of a large number of school districts
which have made decisions about litigation in the context of this dispute. Chapters five through nine will test the model based upon information gathered about school finance
litigation ffom 460 school districts in Alabama, Arizona, New Hampshire, Ohio and
Virginia8.
DEVELOPING THE MODEL
Because previous research on policy-centered litigation has not focused upon the commencement of litigation in particular, the utility of this research for the present analysis is fairly limited. It is therefore necessary to rely heavily upon research on the commencement
7. See appendix C for the number of school districts within each state analyzed here.
8. Chapter four provides a detailed description of the design for data collection and analysis. 55
of private litigation. This necessity presents this dissertation with a second, ancillary research
question. During this effort to understand the decision to litigate policy-centered disputes, it
will be possible to gauge the extent to which such transformations are equivalent to decisions
to litigate private disputes.
It seems likely that many of the forces which serve to encourage or discourage
ordinary private litigation play some role in the decision to participate in policy-centered
cases. The institutional constraints that the U.S. court system places upon all possible
litigants means that potential plaintiffs across the variety of types of litigation will be subject
to a number of common influences. This proposed similarity of influences between private
and public litigation will be discussed in detail during the development of the model.
It is important, however, to indicate some relevant distinctions between the litigation
decisions examined here and private litigation decisions explored in the past. It is also
important to enunciate the differences between the parties that make the litigation decisions in
each context. First, the research presented here does not examine the decision to commence
litigation per se. Rather, the decisions made by local school districts in this context are decisions to join litigation efforts. This is significant because research indicates that when there are numerous potential litigants, plaintiffs can be, and often are, "stacked" (i.e. as many plaintiffs as possible are assembled) (S. Olson, 1984). Lawsuits such as those involving school finance, where there are a large number of potential plaintiffs, possess a dynamic which allows the litigation to proceed regardless of the decisions of individual districts.
A second distinction is that analyses of private litigation decisions have generally examined the choices of private individuals. In the present research, the units of analysis are the governing bodies of local school districts. Most school districts are governed by an appointed superintendent and an elected school board. Obviously, governing bodies, 56
particularly elected ones, will be influenced by forces that are somewhat different ffom those
important to private citizens. Scholarly work on school district decision making indicates that
both superintendents (Lutz, 1980; Simon, 1986; Zeigler and Jennings, 1974) and school
boards are involved in district decisions. Boards are particularly important in decisions
involving high-profile issues (Boyd, 1976; Stelzer, 1974) and in response to demands ffom
individuals and groups within the community (Lutz and Gresson, 1980; Stelzer, 1972;
Tallerico, 1989; Wirt and Kirst, 1989).
Finally, previous analyses have generally defined "potential plaintiffs" as those parties
which are directly injured by a particular circumstance or incident. This is due to the need
for actual plaintiffs to have proper standing to sue. Standing is generally defined as "A
requirement that the party who files a lawsuit have a legal stake in the outcome." (Baum,
1992, Glossary). By this definition, it is not necessary for a school district to be directly harmed by the method of finance in order to have standing. This is because every school district in the state will have a stake in the court’s determination of the constitutionality of the state-wide system of finance. Over the last 20 years, courts have recognized the right of any school district within a state to bring suit over the education finance system9.
A BRIEF OVERVIEW OF THE MODEL
The transformation of injuries (such as those resulting from property tax-based education financing systems) into formal litigation should be thought of as an evolutionary
9. One exception to this is East Jackson Public School v. Michigan (1984) in which the supreme court of Michigan ruled that school districts in general do not have standing to sue the state. 57
process rather than a single decision. The process is treated here as a series of sequential
steps and can be broken down into two stages.
The first stage involves the conversion of an injurious circumstance (what Felstiner et
al., [1981] call an "unperceived injurious experience" or "unPIE") into a claim which,
according to the perception of the decision maker, &in legitimately be settled through formal
litigation. This stage contains an evolutionary process constructed of connected decisions.
Each decision may lead to subsequent steps of the transformation process or, alternatively, an abandonment of the possibility of legal action.
The initial decision involves the acknowledgement of the existence of a legal injury
(what Felstiner et al., [1981] call a conversion from an unPIE to a "PIE" or "perceived injurious experience"). In this case, the question is whether a particular school district views the current method of finance, which creates disparities in inter-district spending per pupil, as injurious10. If no injury is recognized, there is no dispute and therefore no potential for adjudication.
If an injury is recognized as existent, the next question is whether there can be an attribution of blame to another party. In this case, the question is whether a school district blames the state government for the existence of disparity, given that the finance system was created by the state.
The final step of the first stage involves the recognition of legal recourse. This decision differs from the actual decision about litigation. The decision here is whether the law and the courts are considered to be appropriate and relevant to the dispute. In other
10. Again, this perception does not depend upon the injury adversely affecting the particular decision maker (in this case a school district). The important question is whether or not a particular school district perceives the current system of finance as causing injury. 58
words, does a school district think that the state courts could legitimately be involved in the
dispute over education finance.
The second stage involves the actual decision of whether to litigate. The sequential
nature of the transformation process means that districts which perceive an injury, attribute
blame to the state and acknowledge the legitimacy of court involvement have the capacity for deciding whether to join the litigation. In other words, the second stage of the transformation process acknowledges that a dispute £an be settled through litigation. The question for this stage is whether to take advantage of this opportunity. The second stage is therefore, to a certain extent, dependent upon the first.
There are other relevant variables as well. Litigation decisions, like most decisions of this nature, are a mix of internal dynamics and external forces. For the purposes of the development of the model of litigation decision making described here, these other independent variables can be generally separated into four categories: 1) potential costs, 2) potential benefits, 3) efficacy and 4) the influence of third parties.
The transformation of litigation is quite complex. There will obviously be some interaction between independent variables. For example, third parties may have some influence over decisions made in stage one of the transformation process. The discussion of the model (below) and the data analysis (chapters five through nine) will consider these possibilities. However, the primary treatment of independent variables (including those from state one) will be based upon the mixture of forces which produces the decisions of particular local school districts to join the education finance litigation (stage two). 59
POTENTIAL INFLUENCES ON THE DECISION TO LITIGATE
Step One; Recognition of Injury
"An injurious experience is any experience that is disvalued by the person to whom it
occurs." (Felstiner et al., 1981, p. 634) It is therefore the subjective definition of an
experience as injurious, rather than the experience itself, which is the necessary component of
the transformation of disputes.
By this definition, government policies can cause injury. Most often, parties perceive
public policies as injurious when they infringe upon a right or privilege. A right or privilege
is a recognized quality which is considered to be of some value. The value placed upon the
right or privilege confers a sense of individual entitlement. "...(T)he salience of rights on the one hand and the sense of justification in asserting them on the other" is known as "rights consciousness" (Zemans, 1982, p. 1009). Research indicates that the existence and evolution of consciousness about rights are important to the transformation of injuries into formal disputes (Dolbeare, 1967; Felstiner et al., 1981; Friedman, 1990; Galanter, 1983; Miller and
Sarat, 1981; Silberman, 1985).
In the case of school finance, a particular district, if it is to eventually consider litigation, must recognize that the system causes injury through the disparities in spending it creates. The pivotal factor is not the acknowledgement of spending disparities. There is little chance that school officials will not be aware of inter-district differences in spending. The importance to the transformation of the dispute is in the definition of existing disparities as injurious.
It is important to note that most injuries which cause private litigation result from discrete events. It is the change in circumstance caused by the event which leads to a dispute
(Boyum, 1983; Galanter, 1990). For example, an auto accident spurs a lawsuit because of an 60
injury or damage which exists as a result. However, the circumstance which causes the injury
in this research is the utilization of property tax-based funding systems. These funding
systems have been in existence in most states for quite some time. The source of the injury is
therefore continuous rather than discrete.
The question is why continuous injuries, such as those related to property tax-based
education finance, eventually lead to formal litigation at a particular point in time. It may be
that the circumstance, though continuous, has recently changed in some notable way. An
adverse change can serve to alter the perception of a circumstance from non-injurious to
injurious. In school finance, disparities in spending may have to be of a certain level for a particular district to define them as injurious. For example, a district may think that a difference of $500.00 in spending per pupil between two districts is not particularly damaging to the lower spending district. If that figure increases to $1,000.00, the district may reevaluate its earlier position and deem the new variation as injurious.
However, it is not necessary for the circumstance itself to change. It is possible that a continuous circumstance is acknowledged as injurious at a particular point in time because of a change in the definition of the circumstance. This can occur even when the circumstance itself remains unchanged.
There is ample evidence that perceptions of desires, wants, and interests are themselves strongly influenced by the nature and content of legal norms and evolving social definitions of the circumstances in which the law is appropriately invoked...In many instances legal mobilization is generated not by the writing of new laws, but by changing social perceptions of the nature of a problem...(Zemans, 1983, p. 697)
In the case of school financing, disparities may not have changed prior to the commencement of a lawsuit. Instead, static disparities begin to be considered injurious. Because social norms are perhaps the strongest influence upon definitions of injury (Boyum, 1983), the alteration in definition may come about as a result of the influence of a third party. An 61
attorney, interest organization or similarly situated actor may influence a particular school
district to begin to define disparities as injurious.
It is important to keep in mind, however, that it is not necessarily the case that a
lawsuit is commenced because the disparities created by the funding system are suddenly
defined as injurious. The foundation of this model lies in the notion that litigation decision
making is a process rather than a singular event. It may be that a particular school district
has always perceived spending variations as injurious. However, some later stage of the
transformation process may have prevented legal action from being taken.
Those school districts that do not currently perceive the financing system as injurious
will be unlikely to participate in litigation to alter the system. Alternatively, those districts
that do perceive the system as causing injury to the education of children in the state will be
more likely to join the litigation.
HYPOTHESIS 1: The decision to join the litigation is positively related to the extent to which the district perceives an injury resulting from the system of education finance.
Step Two: Attribution of Blame
It is not enough that a right or privilege is believed to be injured by a particular circumstance. Once an injury is perceived, the next step is the attribution of blame.
Litigation is possible only when the injured party holds another responsible (i.e. formulates a grievance) (Miller and Sarat, 1981).
A grievance must be distinguished from a complaint against no one in particular...and from a mere wish unaccompanied by a sense of injury for which another is held responsible. We call the transformation from perceived injurious experience to grievance blaming... (Felstiner et al., 1981, p. 634) (see also Galanter, 1983)
The act of blaming another for a negative experience is often difficult. On a general level, there is a spirit of individualism and self-reliance that pervades American culture. This 62
manifests itself in the belief that an individual or group is largely responsible for their own
welfare. Social norms thus create an aversion to complaining or blaming others for personal
circumstances (Engel, 1984; Miller and Sarat, 1981).
Localism in American education is a manifestation of a spirit of local community self-
reliance. It is generally believed that localities are best situated to make decisions about
educating their children. Local districts believe that they are fully capable of making such
decisions and then carrying them out. This belief engenders a willingness on the part of some
local districts to accept responsibility for the positive and negative aspects of localized
education.
The result is that a particular local school district may perceive disparities in education
spending as injurious. However, the district may blame lower spending districts for the
existence of such disparities. According to this logic, disparity in spending is an inevitable
component of local education. Districts that maintain this reasoning would be unlikely to
litigate, given the lack of an adversary on whom to place blame.
Other districts may instead be willing to affix blame for injury to another party.
These districts perceive that the financing system, created by the state legislature, is
responsible for inter-district disparities. Therefore, blame for the injury rests with the legislature. Districts which perceive injury from disparities and blame the legislature are more likely to join the litigation.
HYPOTHESIS 2: The decision to join the litigation is positively related to the extent to which the district perceives the legislature as responsible for disparities in education. 63
Step Three: Acknowledgement of Court Relevance
The final component of the first stage is the perceived availability of legal recourse.
This transforms the perceived injury into a legal one. Research indicates that victims of
injury differ in their views of the law and the potential for recourse (Bumiller, 1988; Levine
and Preston, 1970; Mayhew, 1975; Mayhew and Reiss, 1969)".
For the purposes of this research, these differences of opinion are largely a function
of perceptions about the legitimacy of court involvement in a particular dispute. The decision
to litigate is, in essence, an acknowledgement or ratification of judicial legitimacy in a
particular area of society. The question for potential plaintiffs in this research is whether state
courts have a role to play in education finance policy.
Judgements about the legitimacy of court action in education finance disputes may be dependent upon which of several issues are perceived to be central. First, this is a dispute between state government and a coalition of local governing bodies. Courts have been relatively uninvolved in disputes related to state-local relations. This is due in large part to the established legal doctrine which guarantees the supremacy of the state within this relationship (see chapter one). However, while discouraged, the rarity of the solicitation of judicial involvement does not necessarily mean it is illegitimate.
Second, school finance is obviously a component of education policy. Courts have long been active in disputes related to education, such as those involving school segregation, church-state relations and freedom of speech. Because of the localism that has traditionally dominated American education, the legitimacy of court involvement in education policy, particularly on the issue of school segregation, was initially seriously questioned (see Johnson and Canon, 1984; Kluger, 1974; Vose, 1959). Today, judicial intervention in disputes related
11. For a fuller discussion, see Carlin et al., 1967. 64
to education is generally accepted, although there remains a good deal of tension on the
issue12. This acceptance seems to exist in disputes over school finance, where state courts
have become increasingly active in the past two decades. However, doubts about the
propriety of such involvement continue to exist.
Finally, education finance litigation involves state constitutional questions about
whether education is a fundamental right and whether classifications based upon wealth are
suspect. American federal courts, and later state courts, have been active players in rights-
based disputes since the 1950s. Judicial involvement in disputes concerning the possible
violation of rights and fundamental interests is now largely accepted.
The notion of suspect classifications was developed by the Supreme Court as a way to
provide additional rights protection to those the Court considered to be politically
disadvantaged. Politically disadvantaged refers to those individuals and groups who lack
traditional resources for political influence (i.e. money, status, votes, access, etc.). The fear
is that the rights and privileges of disadvantaged groups will be infringed upon by government decisions because these groups lack the ability to influence legislatures and executives. Many judges and legal scholars have concluded that courts are particularly appropriate actors for analyzing public policy with the objective of protecting the rights and privileges of suspect groups. This theory stems from the fact that it
...is fundamental to our system that judges not be allowed to really see the persons who stand before them. Judges are to concern themselves with rules rather than with persons. (Scheingold, 1974, p. 54)
12. The role of courts in education may provide an example of what can be labeled "evolving legitimacy". Legal norms are not static. Rather, perceptions of the appropriateness of judicial intervention into particular areas evolve based upon an increase in the occurrence of an injurious experience or alterations in the rights consciousness of individuals and groups (Zemans, 1982; Galanter, 1990). For a recent review of the role of the courts in education, see Flicker, 1990. 65
Nowhere is the opportunity for court assistance to politically and economically weak
actors more evident than in school finance disputes. These lawsuits result from the perception
that children in poor school districts suffer from inequities in education spending which, in
turn, cause inequalities in educational quality. Generally, these are the children of adults who
reside in poor neighborhoods, are at the lower end of the socio-economic scale and work at
low income, low status jobs. These circumstances prevent parents and other citizens in poor
school districts from having marked influence upon the decisions of the education policy
making machinery of the state. The result is that children in poor school districts have
relatively little political influence.
While I remain persuaded that there is no easy way to measure the extent to which children are underrepresented in the legislative process, it seems plain that poor, minority, and disabled children are more likely to need resources their parents cannot provide. At the same time, their parents may have less leverage on the legislative process. (Mnookin, 1985, p. 514)
Particular school districts may acknowledge an injury, attribute it to the state, but
regard the issue as one in which the courts are not legitimate actors. These districts would be unlikely to join the litigation. On the other hand, districts which believe court involvement is
appropriate in school finance disputes would be more likely to decide in favor of litigation.
HYPOTHESIS 3: The decision to join the litigation is positively related to the extent to which the district perceives judicial involvement in the dispute as legitimate.
These first three stages distinguish school districts which are likely to join the litigation (i.e. actual plaintiffs) from all districts in the state (i.e. potential plaintiffs). There are, however, other variables which will affect this decision. 66
Consideration of Costs
Research on civil litigation indicates that the most prominent cost associated with
litigation is monetary. Financial costs are prohibitive when it becomes too expensive for an
actor to bear or accept the concomitant financial burden (McIntosh, 1983). Research indicates
that the utilization of courts to settle disputes is at least partially a function of the ability and
willingness to endure the monetary costs (Carlin and Howard, 1965; Mayhew and Reiss,
1969)13.
One thing that distinguishes litigation brought by a coalition of plaintiffs (as opposed
to single individuals) is that the monetary costs of the litigation can be spread across a number
of parties. In the school finance lawsuits analyzed here, each member of the coalition of
school districts contributes to a fund used to pay litigation costs14. The contribution is based on either a flat rate for every district or the number of students in each district. So even though the costs of litigation are spread out across a number of plaintiffs, litigation is costly enough to require a moderate financial commitment. It may be that particular districts are prohibited from joining the coalition because the financial burden, while not overwhelming, is nonetheless significant.
Often exacerbating monetary problems are time costs. Time is important in terms of personal commitment (hereinafter referred to as "personal time"). Litigants may have to spend substantial amounts of time in lawyers offices and court rooms before and during the litigation. The amount of time litigants are forced to spend in case preparation and
13. However, research also indicates that costs alone are insufficient as explanations for the difference between economic sub-groups in terms of the utilization of the courts (Curran, 1977; Hunting and Neuwirth, 1962; Jacob, 1969).
14. Much of the information on the finance suits in Alabama, Arizona, New Hampshire, Ohio and Virginia was collected through confidential interviews with individuals involved in the cases. 67
adjudication may cause a good deal of hesitation for potential plaintiffs and "burnout" among
active ones (S. Olson, 1984). However, coalition litigation can substantially decrease the
amount of personal time that must be committed by individual plaintiffs. In each case
examined here, there is little, if any, time commitment required of particular individuals
within districts that become members of the coalition15. Therefore, the amount of time a
district would have to commit upon becoming a plaintiff would not appear to be prohibitive.
A second way in which time may be a factor is connected with monetary costs. There
is often a long interval that elapses between the initial decision to sue and the final court
decision (hereinafter referred to as "calendar time"). It may be days, months or even several
years before a final settlement is reached. This uncertainty is particularly germane to policy-
centered litigation. Because the potential implications of the case are so broad, the likelihood
of appeal is almost guaranteed. Over the last 20 years, the vast majority of school finance
cases have been continuously appealed until they reach the state supreme court. In many
instances, this process has taken several years16.
This exacerbates monetary costs. In each case examined here, fees for coalition members are assessed on a yearly basis. The uncertainty surrounding the amount of time the suit will take to conclude means that monetary commitments are open-ended and potentially substantial. If a district perceives that time or monetary costs are prohibitive because of their
initial size and/or their uncertainty, it would be unlikely to become a plaintiff.
15. The general exception is for a small collection of officials, usually superintendents, who instigated the move toward litigation and continue to play active roles throughout the process.
16. For example, the current lawsuit in Tennessee was initially filed in 1988 (Mitchell, 1990). 68
HYPOTHESIS 4: The decision to join the litigation is negatively related to the district’s perception of the amount of money and time it will take to reach a final settlement in the case.
There is a third consideration that can be placed under the general rubric of costs.
This cost is associated with the relationship between local school district and its state
government. This relationship is a continuous one because both the state and localities are
responsible for the education system. Research on civil litigation indicates that disputes do
not often occur between parties who have continuous contact (Black, 1976; Galanter, 1974,
1983; Silberman, 1985; Wanner, 1975). This is because
...the more inclusive in life-space and temporal span a relationship between parties, the less likely it is that those parties will resort to the official system [courts] and more likely that the relationship will be regulated by some independent "private" system. This seems plausible because we would expect inclusive and enduring relationships to create the possibility of effective sanctions; and we would expect participants in such relationships to share a value consensus which provided standards for conduct and legitimized such sanctions in case of deviance. (Galanter, 1974, pp. 131-132)
In addition to providing informal mechanisms for dispute resolution, continuous relationships discourage formal litigation because
As a zero-sum game that entails a finding of blame, the adjudicative process has been criticized as particularly inappropriate to the resolution of disputes between individuals who expect to maintain their relationship after the settlement of the dispute is at hand. (Zemans, 1982, p. 1024)
Understandably, there is an aversion to taking actions which may be disruptive to a relationship, like the one between local school districts and the state, that is perpetual. This potential cost may dissuade some districts from becoming plaintiffs.
School district hesitation about disrupting relations with the state may be due in large measure to its subordinate position within the relationship. As the relationship’s superior party and as the target of formal litigation, the state may deem it necessary to exact retribution from school districts for this contentious action. This raises the possibility of costs 69
for districts associated with punishment from the state for participating in the lawsuit. This
possibility is one that school districts are likely to consider.
HYPOTHESIS 5: The decision to join the litigation is negatively related to the district’s perception of the amount of damage that will be caused to relations with the state subsequent to the decision.
Consideration of Benefits
A consideration of potential benefits from litigation centers upon the circumstance which produced the dispute. If a circumstance is perceived as injurious, then a positive change in that circumstance constitutes the primary benefit. In school finance litigation, the most immediate benefit is an alteration in the financing system that achieves equity in education spending across school districts17.
However, districts that perceive greater equity as a benefit may think it necessary to balance the desire for it against the potential ramifications of its achievement for the district’s own financial status. Districts that are considering whether to join the litigation can therefore be distinguished based on the balance between their desire for equity and their perception of their own financial status within the context of a more equitable system. This separates districts that perceive equity to be important into four categories:
1) districts that perceive equity as the overriding goal, regardless of the repercussions for their financial status
2) districts that perceive equity as an important goal and predict that their financial status will not change under such a system
17. It is important to reiterate that only school districts which perceive disparities in education spending will be making decisions about potential benefits from litigation. TTiose districts which do not perceive an injury would not have moved beyond the first step of the transformation process. 70
3) districts that perceive equity as an important goal and predict that their financial status would improve under such a system
4) districts that perceive equity as an important goal, but predict that their financial status would worsen under such a system
Therefore, a potential benefit for a particular district is related to the perceived change in a
district’s financial status resulting from a more equitable system. School districts within the
first three categories will be more likely to join. These districts share the common goal of a
more equitable system and either do not consider the ramifications of such a system for their
own district or at least do not perceive such results to be negative. Alternatively, school
districts in the fourth category will be less likely to join the litigation, even though they may
perceive inequity as injurious. For these districts, the litigation may ultimately be perceived
as producing costs rather than benefits.
HYPOTHESIS 6: The decision to join the litigation is positively related to the district’s perception of the potential impact of achieving an equitable financial system upon their own financial status.
It is also worth considering the fact that, as discussed above, education finance suits generally involve a large number of individual districts as plaintiffs. This means that the litigation will likely persist regardless of the decisions of particular districts. However, litigants often try to accumulate large numbers of co-plaintiffs in order to 1) distribute litigation costs and 2) attempt to influence public opinion and court decisions by showing the breadth of complaint about the problem.
This circumstance creates two alternatives for individual districts who are making litigation decisions. First, the district may perceive it necessary for them to join in order to increase the chances that the litigation will be successful in achieving the desired benefit.
Joining the coalition may also be perceived as increasing the likelihood that the district will 71
gain individual benefits, namely an increase in spending within the district (or at least a
maintenance of current spending levels). Alternatively, local districts may believe that it can
achieve one or both of these benefits without becoming plaintiffs. This may encourage some
districts to become "free riders", able to gain benefits without having to endure any costs (M.
Olson, 1965)18.
HYPOTHESIS 7: The decision to join the litigation is positively related to the district’s perception of the importance of participation to the achievement of benefits from the litigation.
Efficacy
The notion of efficacy is most prevalent in the literature on political participation in the form of voting, writing letters, etc. (Verba and Nie, 1972). Individuals are thought to perform political actions, in part, because they believe that it will produce some benefit. This phenomenon has an impact upon participation in litigation as well. Individuals, businesses and governments are more likely to litigate if they think it will be productive (Galanter, 1990;
Wanner, 1975).
The question is: How do school districts develop notions about the potential success of litigation? It seems reasonable that litigating the dispute over education finance can achieve spending equity in one of two ways: 1) a court decision which mandates legislative alteration of the financing system or 2) legislative alteration of the financing system designed to preempt a court decision or induce the abandonment of the litigation altogether. In either case, it is the endeavor of litigation which ultimately leads to the realization of equity.
18. There may, of course, districts who are enduring the costs of litigation as plaintiffs may pressure other districts to resist the temptation to become free riders. 72
Perceptions of the potential for a court ruling in favor of the plaintiffs result from
general perceptions about the receptiveness of particular courts to specific plaintiffs or claims.
The nature of the American legal system accentuates the power of legal tradition. Courts are
generally hesitant to deviate from past norms of behavior. Perceptions about future judicial
decisions are therefore based in large measure on past decisions.
On a broad doctrinal level, there are general legal trends which may have an influence on the attitudes of state courts toward school districts in financing disputes. These relevant doctrines can provide contradicting influences on the efficacy of potential plaintiffs. On one hand, legal doctrine strongly supports state government in legal disputes with localities.
Courts have long deferred to the power of state governments over localities that are, in a legal sense, essentially administrative offices created of state government. On the other hand, in recent years, state supreme courts across the country have become increasingly willing to utilize their constitutions in the expansion of the definition of rights and privileges. The cases where state courts have overturned financing systems are part of a larger trend in decision making at the state level (see chapter two).
This dichotomy of legal doctrine is not lost on the parties in the case. State governments have attempted to portray this dispute largely in terms of a debate over state determination of the proper role of localities in education. For their part, plaintiffs argue that the case is primarily about the constitutional protection of the rights and privileges of children in property poor school districts.
There are a variety of sources for specific precedents. Obviously, the primary source is the particular court system in which the case will be litigated. Previous decisions within a particular judicial system provide reasonable indications of the chances for the success of particular claims. In addition to providing legal rationale, previous case decisions in an area 73
of law indicate the general ideological predispositions of courts and the subsequent
receptiveness of those courts to specific arguments and plaintiffs.
Even when particular courts have yet to hear any cases in a specific area of law that is
relatively new (like school finance), potential plaintiffs can still obtain a sense of the court’s
receptiveness. Precedents which contain issues related to a current dispute can provide
indications of judicial disposition. For example, previous decisions related to the scope of the state’s equal protection clause can indicate what decision might be made in a school finance dispute.
A second source of perceptions of success in state court is court decisions in similar cases in other states (Galanter, 1990). In making decisions, state supreme courts often look to decisions in similar cases in sister courts. This is particularly true when state courts approach new issues or issues on which their own legal doctrine remain unsettled (Caldeira, 1985;
Canon and Baum, 1981). Past cases in other states may therefore become important as potential plaintiffs develop expectations about the success of particular litigation. The high profile of education financing cases allows for the dissemination of the results of these cases to similarly situated potential plaintiffs in other states.
...cases of a particular type are not randomly distributed over time but occur in sequence...this temporal ordering may reflect various external influences. But if litigation can in turn influence these influences, then the incidence of cases of a particular kind and what happens to them may be affected by earlier (and anticipated) cases of that kind. (Galanter, 1990, p. 379)
Research indicates that state courts do not randomly select other state courts to pay attention to. Rather, there are particular reasons why courts pay attention to particular sister courts (Caldiera, 1985). In the same way, potential plaintiffs may perceive cases in particular states as indicative of what is likely to happen in their state. They may concentrate on 74
decisions from neighboring states or states with similar economic, political, demographic
and/or educational characteristics.
A third source for the development of efficacy among potential plaintiffs is the U.S.
Supreme Court. The Court’s decisions have long provided guidance to state courts as they
interpret state constitutions. The Court’s decision in San Antonio Independent School District v. Rodriguez may therefore provide a guiding precedent for a particular court. On the other hand, state courts have recently become less hesitant to deviate from federal rulings in the development of state constitutional law (chapter two).
Based upon relevant decisions of courts within their own state, courts in other states and the U.S. Supreme Court, school districts develop perceptions about the potential for the success of finance litigation in their state. Districts are more likely to join the litigation if they believe that it will be successful in court.
HYPOTHESIS 8: The decision to join the litigation is positively related to the perceived chances for success in court.
Feelings of efficacy about litigation may not be limited to perceptions about the chances for achieving a particular judicial decision alone. Research indicates that the problems of litigants, particularly in policy-centered disputes, are not necessarily solved by favorable court rulings. Possessing neither "the purse nor the sword", American courts are dependent upon others for implementation of judicial rulings. This increases the difficulty of gaining substantive results from favorable judicial decisions (Johnson and Canon, 1984).
Therefore, a court decision overturning a property tax-based method of finance does not guarantee that spending will become more equitable. Potential litigants may therefore decide whether to litigate based upon their perception of the ability of courts to enforce decisions which are designed to achieve greater equity. 75
HYPOTHESIS 9: The decision to join the litigation is positively related to the perceived capacity of a court decision mandating a more equitable system to result in substantive alterations in the education finance system.
Litigation can also achieve alterations in the finance system by inducing the legislature to make changes in order to preempt a court decision requiring them to do so. It may be that some suits are brought primarily to force legislatures to act on the issue of equity rather than achieve a decision from the state supreme court. Legislatures are no doubt aware of the multiple implications of a court decision mandating alterations in education finance. There is evidence that in the last two decades, a large number of state legislatures began examining their finance structures before supreme court decisions forced them to do so. These maneuvers were due, at least in part, to efforts to head off potential litigation or induce the abandonment of current suits (Strickland, 1991)19.
Legislatures may feel forced into action depending upon their own perceptions of the likelihood that the state’s courts will rule the system unconstitutional. These perceptions are probably based in large part on the same criteria used by potential plaintiffs. Legislatures may perceive that enough changes can be made in education finance to appease potential plaintiffs. Potential plaintiffs may therefore decide to join the litigation based on perceptions of he ability of such a lawsuit forcing the legislature to act20.
19. For example, in Virginia a lawsuit was filed but later abandoned in order to allow the state legislature time to forge a solution (Baker, 1992b). The suit has since been refiled due to a lack of satisfaction with legislative action on the issue. A similar situation has taken place in Massachusetts where various efforts to increase education spending have sidetracked litigation a number of times since 1978. The suit is active again (Lehigh, 1991).
20. It is worth noting, however, that in four of the five states analyzed here, there is not a great deal of optimism about legislative willingness to take action in the absence of a court mandate to do so. 76
HYPOTHESIS 10: The decision to join the litigation is positively related to the perceived capacity of the litigation itself to force the legislature to make the current system more equitable prior to a final court decision.
Third Parties
For a decision maker to be influenced by a third party, three things must be present.
First, the third party must have an opinion on the decision to be made. Second, the opinion must be expressed to the decision maker. Finally, the decision maker must have a reason for agreeing to a particular position expressed by a third party.
In litigation research, third parties are generally treated as external entities who are approached by injured parties for consultation before proceeding with litigation (S. Olson,
1984). However, in litigation in general and education financing in particular, third parties can act as instigators as well as solicited consultants.
Perhaps most importantly, school boards are political units. They are therefore susceptible to the influence of community (i.e. electorate) opinion. This is particularly true in circumstances where constituent interest is stimulated by the visibility and intensity of a particular issue (Greene, 1989). It is reasonable to expect that the issue of suing the state in a dispute over education financing would be salient among the general public within a district.
If there is a general direction to community opinion, a school board, as an elected representative of that community, would be unlikely to make a decision contrary to that opinion. A decision counter to constituent opinion on a salient issue involves risks to office holders. The literature on congressional elections indicates that unpopular decisions on major issues may provide constituents with the motivation to replace elected officials (Bianco, 1992).
The susceptibility of school board members to the influence of their societal context may go beyond electoral concerns. On a personal level, board members are citizens of the 77
community they represent. They may be averse to making unpopular decisions because they
risk engendering personal animosity from fellow members of the community.
...mobilization of the law that is visible but disapproved by the social group may result in social costs even when there is no direct involvement by any other member of the group. Loss of reputation and even more direct retribution might follow, and its risks must be calculated. (Zemans, 1982, p. 1026)
It is important to remember that a member of a local board of education is perhaps the classic example of the citizen-legislator. They are likely to be dependent upon their community for their economic and social livelihood. This creates a strong aversion to making decisions counter to community opinion.
The result is that school board members must consider the potential political, economic and social costs (or benefits) of particular decisions. If local public opinion supports litigation, the local district is likely to do so. Alternatively, if such forces are in opposition, the district would be less likely to join the litigation.
HYPOTHESIS 11: Decisions about the litigation are positively related to the perceived balance of public opinion within the constituent community.
It is possible to define a school board’s constituency in a variety of ways. It may be that the public at-large is interested and active in the decisions of local school boards on the issues such as whether to join the lawsuit. Alternatively, there may be subsets of individuals within the broader community which take an interest. It would seem reasonable that a group of individuals that would be particularly interested in education issues in general and the financing of education in particular are the parents of school children. Obviously, they have a substantial vested interest in the strength of the school system. Parents, in most instances, make up a sizeable proportion of the voting public in most communities, which allows them 78
to utilize electoral activity as a tool of influence. However, little work has been done to
isolate the influence of parents in particular within local school districts.
HYPOTHESIS 12: Decisions about the litigation are positively related to the perceived balance of parent opinion within the constituent community.
Private citizen influence upon school boards is often exerted through organized
interests (Zeigler and Jennings, 1974). If this is the case in reference to school financing
litigation, boards may be influenced by the opinions of interest groups, rather than (or in
addition to) the public at-large.
Interest groups that wish to persuade a particular district to join the litigation may
come from outside as well as inside the district. The history of political litigation is primarily
a history of interest group litigation in direct and in-direct ways. When an interest group
wishes to challenge public policy and has legal standing to do so, it will often bring a case to
court. For instances in which the interest group does not have standing to sue, it must seek out plaintiffs in order to pursue court-induced alterations of policy (S. Olson, 1984, pp. 13-
lb). Potentially important groups in the case of school financing include teachers’ unions
(such as the American Federation of Teachers and its state and local affiliates) and education associations (such as the Ohio Education Association). Civil rights groups may also play a role, given the nature of the case.
HYPOTHESIS 13: Decisions about the litigation are positively related to the perceived balance of the opinion of interest groups inside or outside the constituent community.
It may also be the case that school boards are aware of the opinions of community elites (i.e. those with political, social or economic status and subsequent influence within the community). Elites possess resources which allow them to have potentially significant 79
influence with local boards. For example, local government officials, such as mayors and
city council members, make numerous decisions which affect the function of local school
districts, including decisions about revenue and zoning. The power to make such critical
decisions gives local government officials a certain amount of leverage with local boards of
education. These resources may, in turn, be utilized to influence board decision making.
One elite that is worth mentioning in a more particular manner is the state legislator
who represents the school district. The potential influence of this actor comes first from his
or her political power and influence within the district. He or she is also potentially
important, given that he/she is a primary representative of state government within the
district. The legislator often acts as a liaison between the district and the state. In
considering action which is disruptive to relations with the state, the school board may be
influenced by state legislator perceptions of 1) the damage that may be caused and/or 2) the potential for legislative change in the finance system in the absence of litigation.
HYPOTHESIS 14: Decisions about the litigation are positively related to the perceived balance of elite (i.e. local government officials, business leaders, state legislators) opinion within the constituent community.
School district decision makers often defer to the opinions and expertise of education professionals in making decisions (Wirt and Kirst, 1989). School administrators and teachers may possess an interest in and expertise about education financing in general and the needs of their own district in particular. Boards may therefore be attentive to the professional advise of these individuals. In addition, such individuals may be involved with interest organizations which provide them with other sources of influence beyond expertise, including votes and influence over employer-employee relations. 80
HYPOTHESIS 15: Decisions about the litigation are positively related to the perceived balance of opinion among education professionals within the constituent community.
Attorneys are crucial third parties. Research indicates that attorneys play a
preeminent role in litigation decisions (Galanter, 1983; Kessler, 1990; S. Olson, 1984).
Generally, local school districts maintain an appointive position for a school board attorney.
This individual provides advice and council to the district on legal matters. The decision
about whether to litigate against the state provides an instance where such advice is probably utilized.
HYPOTHESIS 16: Decisions about the litigation are positively related to the opinion of the attorney designated to give legal advice to the district.
Finally, a particular policy may affect large numbers of individuals or groups in the same way. When a potential plaintiff is weighing the possibility of going to court to remedy the problem, similarly situated individuals and groups provide a reference point. Rights consciousness, described above, is often a collective phenomenon. Perceptions about legal rights and the need for formal legal action are often constructed by reference to others in similar situations (Zemans, 1982; S. Olson, 1981). In addition, the knowledge of the collective nature of problems and access to solutions may encourage potential plaintiffs to become involved. This may be particularly true of disadvantaged groups, such as poor school districts, who may desire a support network before undertaking litigation (S. Olson, 1981).
In the case of school finance, all school districts within a particular state are faced with an equivalent choice. If similarly positioned parties decide in favor of joining the litigation, school districts are more likely to make such a decision for themselves. 81
HYPOTHESIS 17: Decisions about the litigation are positively related to the balance of opinion among similarly situated school districts.
This chapter has presented the components of a theoretical model of the transformation of litigation in policy-centered disputes. This dissertation now turns to an examination of the fit between theoretical expectations and empirical data collected from states in which lawsuits are currently active. Before proceeding, however, it is important to enunciate the research design utilized in the collection of data. CHAPTER IV
THE DESIGN FOR RESEARCH
This chapter provides a description of the process of data collection and the method of data analysis used in the balance of this dissertation.
THE SAMPLE OF STATES
The analysis is based upon data collected from a sample of school districts in five states where school finance litigation is currently underway: Alabama, Arizona, New
Hampshire, Ohio and Virginia. During data collection from March through September of
1992, these states shared a number of common characteristics which are critical to the rigor of this analysis: 1) all five states were involved in active education finance litigation, 2) all five lawsuits were brought by coalitions of school districts constructed primarily for the purpose of commencing a lawsuit1, 3) every local school district in each state was faced with the same decision (whether to join the coalition), 4) for every district, the need to make this decision was spurred by the same circumstance: written contact from the organizers of the coalition of school districts.
1. In each state, only a limited number of school districts from the coalition were named as plaintiffs, along with private individuals from each of these districts. However, it was the coalition of school districts that commenced, guided and financed the litigation.
82 83
Finally, each district was contacted for this research at roughly equivalent stages in
their state’s litigation process. Districts in each state were surveyed at a time when no case
had reached the state supreme court2. This maintained the equivalency of context. This is
important because the survey asked questions about predictions of future events, including a
possible final decision on the merits by the state supreme court.
These five states do, however, contain a number of differences which make the
sample an interesting and appropriate mix for the analysis. In addition, while no five states
would perfectly represent all 50, the five states chosen here provide a good cross-section.
The differentiation is not perfect, but it is particularly strong given the constraints created by
the need for the equivalent circumstances described above.
For the purposes of this analysis, the most important distinguishing characteristics
relate to geography, state-level politics, economics and education3. Geographic diversity is
important because it allows the analysis to take into consideration the political and social cultures often associated with particular regions (Elazar, 1984). The sample contains a state from the New England, Atlantic Coast, Deep South, Midwest and West regions of the country.
The states in the sample also offer political diversity. This allows for the examination of litigation decisions within different political contexts. Chapter three described a number of ways in which predictions about state government actions and reactions might affect decisions
2. When the first wave of surveys was sent, all five cases were awaiting decisions on the merits at the state trial court level. When the second wave of surveys was sent, cases in Alabama, Ohio and Virginia were still awaiting trial court decisions. Trial courts had made decisions in Arizona and New Hampshire and both were on appeal (more on this below).
3. The political landscapes of each of the states will be described in some detail in their corresponding chapters. Much of this information comes from Barone and Ujifusa (1992) and The World Almanac and Book of Facts (1992). 84
to litigate. These include predictions about 1) potential retribution against those districts that
join the coalition sponsoring the litigation, 2) whether the litigation will force the legislature
to act to alleviate disparity in order to preempt a court decision and 3) whether a judicial
decision favoring the plaintiffs will actually result in the construction of a more equitable
finance system.
In terms of the political landscape, the sample contains two "Democratic states", two
"Republican states" and a state in which the parties are relatively even. There is a
traditionally Democratic state (Virginia) where the Democrats controlled the governorship and
both houses of the legislature by comfortable margins (30-10 in the Senate and 59-39 in the
House). There is a second traditionally Democratic state (Alabama) where both houses of the
state legislature were dominated by the Democrats (28-7 in the House and 82-23 in the
Senate), but the governor was a Republican during the events which lead to the suit4. There
is a traditionally Republican state (New Hampshire), where Republicans held the governorship and both houses of the legislature (13-11 in the Senate and 269-127 in the House). There is a traditionally Democratic state that has become strongly Republican (Arizona), also with a
Republican governor, but where the legislature was fairly divided. The Republicans controlled the House (33-27) and the Democrats controlling the Senate (17-13). Finally, there is a state where the parties have been fairly competitive. At the time, Republicans held the governorship and the Senate (21-12) while the Democrats controlled the House (61-38)5.
The balance between parties gives at least a partial indication of the general political character of each state. There are, of course, other indicators which give a sense of the
4. The governor at the time, Guy Hunt, has recently been convicted of criminal wrongdoing and was subsequently removed from office.
5. These numbers reflect the balance of power in 1992, according to The World Almanac and Book of Facts. (1992). 85
politics of the states in the sample. While it is beyond the scope of this analysis to examine
such items considerations in-depth, subsequent chapters will provide discussions of relevant
factors in an attempt to understand the political and ideological contexts in which these
lawsuits exist.
The education systems in the sample are fairly diverse. First, states seem to differ in
the level of localism (discussed in chapters two and three) that pervades their systems of
education. In general, New England states like New Hampshire tend to be more localistic
while Southeastern states like Alabama are less so (Wirt and Gove, 1990). Much of this can
be traced to historical events and the subsequent evolution of political culture (Elazar, 1984).
One indicator of the level of localism in education is the distribution of funding
responsibility across government levels. This distribution is at least partly indicative of the
level of local control over education. The fiscal responsibility of local governments in the
sample range from a low of 19.4% (of total education spending) in Alabama to a high of
89.6% in New Hampshire. The other three states are much closer to the U.S. average, which
is 44.3% (Calkins, 1990).
More fundamental to disputes over education finance is the level of disparity in inter district education spending. The level of disparity is important to the dispute transformation process, particularly in the identification of the injury.
Because school finance experts use a variety of measures to describe this inequality, and dispersions of expenditures are being compared, the story is not always a simple one. In addition, cost differences within as well as across states. One approach is to compare school district expenditure per pupil at the 95th percentile of pupils with the district expenditure at the 5th percentile. Simply put, how much more is spent by the district near the top of the distribution than by the district near the bottom? (Educational Testing Service, 1991)
Using this statistic, Ohio ranks second in the nation in level of spending disparity, with a ratio of nearly 3 to 1. As for the other states in the sample, Arizona is 10th (2 to 1), Virginia is
12th (2 to 1), New Hampshire is 24th (1.6 to 1) and Alabama is 34th (1.5 to 1). 86
DATA COLLECTION
Data collection for this analysis took place in two stages. First, telephone interviews
were conducted with attorneys and educators associated with the litigation in each state. The
information gathered from the interviews can be divided into four parts: 1) the background
and evolution of the case, 2) the political context of the state, 2) the strategy of soliciting
district involvement in the litigation and 4) the current status of the litigation. Perhaps most
importantly, the information from the interviews certified that the relevant circumstances
described above were roughly equivalent across the five states.
The interviews also served to partially verify the appropriateness of the model
developed in chapter three. The model, in turn, formed the basis of a questionnaire which
constituted the second component of the data collection. The survey was sent to local school
districts in each of the five states6. It asked a variety of questions primarily related to the
various factors discussed in chapter three7.
There are a total of 1,290 districts in these five states. For reasons of cost and
manageability, a sample of 787 was selected. The sample was selected on the basis of the
following rules: 1) in states with 174 or less school districts, all districts in the state were
chosen, 2) in states with greater than 174 school districts, 174 districts were randomly
selected from all districts in the state8.
6. It is important to note that school districts are treated here as unitary actors. The data collected will partially test this assumption. For more general purposes, this assumption allows for a simplification of data analysis.
7. Appendix D contains a copy of the survey.
8. See Appendix C for the following information on each state: number of school districts in the state, number of school districts surveyed, number of school districts that returned completed questionnaires and response rate. 87
Surveys were sent to 174 districts in Ohio in March of 1992. Surveys were initially sent to only one state in order to test the appropriateness and adequacy of the instrument as well as the receptiveness of the respondents to the analysis. Surveys were then sent to the other four states in June of 1992. In addition, a follow-up questionnaire was sent to those districts in Ohio that did not respond to the March mailing. In September of 1992, a follow- up questionnaire was sent to districts in the other four states that did not respond to the June mailing.
Of those surveyed, 460 school districts (58.4%) across the five states completed the questionnaire9. Response rates ranged from a low of 46.0% in New Hampshire to a high of
68.2% in Alabama. It is unclear why there is a certain level of variation in response rates across states. Part of the reason for New Hampshire’s relatively low rate of response may be related to the individuals to whom the survey was sent10.
Generally speaking, a superintendent, along with an elected school board, presides over a single school district in Alabama, Arizona, Ohio and Virginia. The New Hampshire education system is, on the other hand, uniquely structured. School districts are divided into
"school administrative units" (SAU). These units contain anywhere from one to eight districts. A superintendent is assigned to each SAU and therefore will likely be in charge of multiple districts.
In Alabama, Arizona, Ohio and Virginia, surveys were sent to the superintendents in each of these districts. In the case of New Hampshire, surveys were sent to the chairman of the local school board. The decision to send the surveys to these individuals was based on
9. There were also 19 districts which responded that they would not participate in the project.
10. Possible relationships between response rates and other variables will be discussed in subsequent chapters. 88 two considerations. First, these were the people whom the coalition of plaintiffs contacted in the course of soliciting district participation in the litigation. This assured that the individuals were aware of the lawsuit and would therefore, understand the issue upon which this analysis is focused.
Second, it is reasonable to assume that these individuals are in a good position to answer questions about the forces at work within the district on this issue. Certainly, the coalition’s choice of them as the primary contact is a good indication of the centrality of these individuals to the decision making process in their district".
Of course, contacting a single individual in a particular district means that the information about influential variables within the district is subjective. This is, in many ways, akin to a reliance upon legislators for information about the importance of interest groups, constituents, colleagues, etc. to legislative decision making. These legislative studies, and other systematic analyses based on subjective evaluations, have proven that such data is by no means fatal. It is, however, important to be mindful of the nature of the information utilized.
DATA ANALYSIS
The balance of the dissertation is composed of an analysis of the information collected from these surveys and the fit between this data and the variables discussed in chapter three.
Each chapter begins with discussions of the genesis of the lawsuit and the political and educational context within which the dispute developed. Bivariate analyses are then performed to examine the relationship between specific variables and the decision of whether
11. It is important to note that it is not the assertion of this research that the individuals to whom the surveys were sent are the most important decision makers in the district. 89 to join the coalition of plaintiffs. Each chapter concludes with a systematic, multivariate analysis.
Regression is used to test the same model of litigation decision making in each of the states. This allows for a determination of the fit of a model of decision making (based on chapter three) and the relative influence of individual variables. The model is tested in terms of the following equation:
EQUATION 1:
Y (decision of whether to litigate) =
XI (perception of a legal injury) + X2 (attribution of blame for the injury) + X3 (perception of the propriety of judicial intervention) + X4 (perceptions of time/monetary costs of coalition membership) + X5 (prediction of the damage to relations with state government caused by coalition membership) + X6 (current financial status) + X7 (prediction of future financial status) + X8 (prediction about the likelihood of coalition success in court) + X9 (prediction about the likelihood that a court decision in favor of the plaintiffs will result in changes in the structure of education finance) + X10 (opinion of the general public) X II (opinions of "local elites")12 X12 (opinions of "education professionals")
The independent variables are operationalized in the following manner:
XI) Does a legal injury exist? A district’s opinion is operationalized based upon their response to the question: "How important are differences in levels of spending per pupil across school districts in your state to the relative quality of education across districts?" (4=very important, 3 = important, 2=somewhat important, l=not important)13.
X2) Who is to blame? A dummy variable is used to indicate whether the school district blamed state government more than any other actor (1 =yes, 0=no). This variable is
12. "Local elites" and "education professionals" will be defined below.
13. For each of the five states, objective measures are used to verily that disparities in education spending exist. Therefore, the question of importance of equivalent expenditures will serve to indicate feelings about the harm produced by inequity. 90
created on the basis of responses to two questions: "Which of the following forces is most responsible for these differences in levels of spending across school districts in your state?" and "If it is a combination of two forces, which one is more responsible?"
X3) Is judicial intervention appropriate? A dummy variable is created based upon the response to the question "...under current political and financial circumstances in your state, what is the most appropriate and effective method for reducing these differences (in levels of education spending)?" (1 = litigation, 0=other methods).
X4) The district’s perception of time and/or monetary costs is operationalized through the use of a dummy variable based upon district predictions about these factors: -2 = substantial time and financial costs are involved in becoming a member of the coalition, -1 = substantial time qt financial costs, 0 = neither substantial time or financial costs.
X5) The district’s prediction about the effect of joining the litigation on relations with state government is operationalized based upon the response to the question: "When your district was deciding whether to join the coalition, was it felt that relations between your district and state government would be altered if you joined? If so, how? (-2=relations would be severely damaged, -1 = relations would be moderately damaged, 0 = relations would be unaffected, 1= relations would be moderately benefitted, 2 = relations would be greatly benefitted).
X6) The district’s current financial status is operationalized on the basis of district responses to the question: "Relative to other school districts in vour state, how would you rate your district’s current financial status?" (5=poor, 4=below average, 3=average, 2 = above average, 1 =very good).
X7) The district’s predicted financial status under a more equitable system is operationalized based upon the response to the question: "If the state courts decide in favor of the plaintiffs, how will per pupil spending in your district be affected?" (2= spending will likely increase substantially, l=spending will likely increase moderately, 0=spending will likely remain about the same, -1 = spending will likely decrease moderately, - 2 = spending will likely decrease substantially).
X8) A district’s prediction about the likelihood of plaintiff success is operationalized based upon the response to the question: "In deciding whether to join the coalition, what was the belief among decision makers within your district about the chances for the plaintiffs to be successful in their lawsuit (i.e. have the state courts declare the financing system unconstitutional)?" (2=sure the plaintiffs would win, 1 = thought the plaintiffs might win, 0 = uncertain about the outcome, -1 = thought the plaintiffs might lose, -2 = sure the plaintiffs would lose)14.
14. As discussed in chapter three, beliefs about the likelihood that the state court will rule in favor of the plaintiffs are based on perceptions about the balance of relevant precedents from the state’s supreme court, state supreme courts in other states and the U.S. Supreme Court. 91
X9) A district's response to the question "What will be the result of a court decision that favors the plaintiffs (i.e. a declaration that the current financing system is unconstitutional?" is coded as follows: 2 = substantial change in the current method of education financing, 1 = moderate change, 0 = little or no change.
For the purposes of the multivariate analyses, relevant third parties can be separated into three categories: the general public, local elites and education professionals15. The opinions of third parties within these three groups are operationalized on the basis of answers to the question: "For each of the following sets of individuals within your district, please indicate their opinion about your district joining the coalition.”
X10) General public opinion on the issue of joining the coalition is operationalized in the following manner: 1 =favored joining the Coalition, 0 = neutral/expressed no opinion, and -1 = opposed joining the Coalition
X I1) The opinion of "local elites" (business leaders, local government officials and state legislators) is operationalized based on the balance of opinion among them: 3 = all three favored their district joining the Coalition, 2=two were in favor and one was neutral or expressed no opinion, 1 =one was in favor and two were neutral qt two were in favor and one was opposed, 0=all three were neutral qt one favored, one opposed and one was neutral, -1 =one was opposed and two were neutral or two were opposed and one was in favor, -2=two were opposed and one was neutral or expressed no opinion, -3 = all three parties opposed their district joining the Coalition.
X12) The opinion of "education professionals" (teachers and school administrators) is operationalized in the same manner as local elites.
The independent variables are operationalized in such a way that the expectation is that each independent variable will be positively related to the dependent variable. The relative influence of particular variables will be examined with the assistance of probit
These forces will be discussed in the bivariate analysis.
IS. The opinions of interest groups and school district attorneys are not included in the model. There were very few instances in which interest organizations, either inside or outside particular districts, took positions on the question of the district joining the school finance litigation. A relatively high number of districts did not answer the question related to the opinions of school district attorneys. This created a condition in which this variable’s inclusion in the multivariate analysis would have dramatically reduced the number of cases. The influence of interest groups and attorneys will be discussed in the bivariate analysis. 92 analysis. This technique is used because of its appropriateness for the study of a dichotomous dependent variable (1 =Coalition member, 0 = non-member)16.
The regression equation utilized in the ensuing chapters produces coefficients (i.e. t- statistics) which are difficult to interpret with confidence. There are two reasons for this.
First, in the chapters on each state, the sample sizes used in the multivariate analysis are small
(ranging from 60 in New Hampshire to 91 in Ohio). It is readily acknowledged that such samples are relatively small in terms of the general dictates of quantitative analysis.
However, the aim of this project was to formulate a model of litigation decision making and apply it in the context of equivalent decisions made by multiple actors (i.e. school districts in each state). This made it inevitable that the sample would be relatively small. The small sample may increase the size of the standard error. The size of the t-statistics are therefore potentially reduced because they are partially an inverse function of the size of their standard errors. The result is that truly meaningful relationships may have coefficients which fall short of statistical significance.
Second, and more importantly, multicollinearity may present a problem. I have provided tables listing the correlations between the independent variables for each state.
There are times when there are moderate levels of intercorrelation between independent variables in the equation (i.e. multicollinearity). It is possible that this condition also leads the standard errors of the independent variables within the equation to increase in size, causing a decrease in the coefficient estimators (t-statistics). In other words, the preferred indicator of the relationship between a particular independent variable and the dependent
16. The multivariate model does not contain a variable associated with the decisions of other school districts. The survey instrument failed to contain a question with answers that adequately reflected this variable for the purposes of the multivariate analysis. The author accepts full responsibility for this oversight. 93 variable is reduced, making strong relationships appear non-significant according to traditional measures of statistical significance17.
Because standard errors (and thus t-statistics) are potentially vulnerable to problems associated with sample size and collinearity, an alternative approach is used to analyze the relative influence of independent variables in the equation. I have calculated the relative improvement in the probability of a decision in favor of joining the litigation resulting from unit changes in the values of each independent variable (holding the other independent variables constant). This is done with the use of the probit coefficients (unstandardized b’s)18. This approach eliminates the need to rely on the standard errors.
17. Multicollinearity is an inevitable component of multivariate analysis. It is therefore the relative size of the multicollinearity that becomes important. When levels of multicollinearity are "high", it can cause substantial problems for interpretation of regression results (see Berry and Feldman, 1990). "The most reasonable test for multicollinearity is to regress each independent variable in the equation on all other independent variables, and look at the R-squared’s for these regressions; if any are close to 1.00, there is a high degree of multicollinearity present." (p. 43) This, however, is not the case in four of the five multivariate analyses presented in ensuing chapters. High multicollinearity does present a problem in Virginia. Resolution of this problem will be discussed in chapter nine.
18. An alternative strategy for dealing with multicollinearity is to eliminate independent variables which have high correlations with others. However, because each independent variable in the equation represents a different theoretical concept (i.e. high correlations are not due to overlap in what the variables represent), this is an inappropriate approach. CHAPTER V
EDUCATION FINANCE LITIGATION IN ALABAMA
RESPONDING TO BROWN V. BOARD OF EDUCATION
The story of the Alabama suit over public education finance began not in the 1990s,
but in 19541. In May of that year, the U.S. Supreme Court handed down its decision in
Brown v. Board of Education (Brown I). A unanimous Court declared that segregation in
public elementary and secondary education was unconstitutional.
Segregation was a fundamental component of life in the deep South in the 1950s.
Subsequently, it was here that the impact of Brown I would be most widely felt and where
public response to the decision was most hostile. In the wake of the decision, "...Southern
whites objected to sending their children to desegregated schools by a margin of better than
five to one." (Lasser, 1988, p. 163)2.
As the impact of Brown I settled in, however, Deep South opposition to the decision began to mount. For one thing, summer was primary season in most Southern states, and 1954 was an election year. Politicians quickly sensed that moderation toward or support for the desegregation ruling was not a strategy inclined to garner votes, particularly in rural constituencies. Many state legislators, who in those pre-reapportionment days
1. Much of the background information contained in chapters five through nine was gathered in a series of confidential interviews. In addition, statements from educators used throughout this and subsequent chapters come from confidential survey responses. These quotes are indicated by an abbreviation for each state (ex. AL-Alabama).
2. In Brown I. the Court did not give instructions on the method for desegregating public education. The Court ordered reargument in December of 1954 on the issue of remedy. In May of 1955, the Court issued an opinion on implementation in Brown v. Board of Education (Brown ID-
94 95
overwhelmingly represented such areas, began to make their opposition to Brown known. As a result, no Deep South state moved ahead with plans to comply voluntarily with Brown I by the opening of the new school year. Instead, the antidesegregation position hardened in state after state. (Ibid, 1988, p. 164)
Southern governorships and state legislatures became saturated with individuals who gained or
retained their offices by virtue of being vehemently segregationist3. This, in turn, resulted in
a wide variety of state government measures designed to hinder the desegregation of the
public schools.
Alabama was among the more radical Southern states in its efforts to uphold
segregation in the 1950s. For example, the Alabama state constitution, ratified in 1901,
contained an education article which required the legislature to "...establish, organize and
maintain a liberal system of public schools throughout the state". In 1956, the education
article was amended to assist the cause of segregation. The 1956 amendment (known as
"Amendment 111") stated, in part, that
...nothing in this Constitution shall be construed as creating or recognizing any right to education or training at public expense, nor as limiting the authority and duty of the legislature, in furthering or providing for education, to require or impose conditions or procedures deemed necessary to the preservation of peace and order.
This clause allowed the state to continue segregation under the guise of a need for "peace and
order". Amendment 111 also gave the state legislature the power to donate public property
for the purpose of establishing private schools. These private schools could be operated on a segregated basis, unaffected by Brown I (which applied only to public education).
As discussed in chapter two, the success of legal challenges to systems of education finance is based in large measure upon whether the state supreme court considers education to be a "fundamental right". In every instance in which a state supreme court has declared
3. For example, George Wallace lost his first race for governor of Alabama in 1958. Wallace claimed that he lost because he was "out-segged" in the Democratic primary and vowed not to let it happen again (Barone and Ujifusa, 1992). 96
education to be a right, the system of education finance has been struck down as
unconstitutional. There has only been eng instance in which a court has refused to grant
education this status but still ruled the finance system unconstitutional. Amendment 111 had
apparently settled this legal question in Alabama.
EDUCATION IN ALABAMA TODAY
Today, Alabama has one of the poorest education systems in the United States. The
Alabama system is among the lower fifth among states in nearly every comparative category,
ranking 48th in the country in spending per pupil (U.S. Department of Education, 1991).
Upon investigation, the primary reason for Alabama’s relatively poor financial status becomes
evident. Like other systems throughout the country, education dollars come from federal,
state and local sources. Under the current system of finance in Alabama, the state
government is disproportionately the largest financial contributor to primary and secondary
education. According to one study, in 1990, $2,145 (67.1%) of the $3,197 spent per pupil in
Alabama came from the state. The state contribution to education in Alabama is just below
the national average of $2,208 and places it 27th among state governments across the country.
On the other hand, local governments contributed, on average, only $620.22 per pupil (or
19.4% of the total). This amount is only about one-third of the U.S. average of $2,041 and
is 48th in the country (Calkins, 1990). Because the average local contribution to education is so low, the overall financial support for education in Alabama is relatively weak.
One would necessarily assume that the relatively low percentage of local contributions would reduce the likelihood of large inter-district spending disparities.
The relative reliance on state vs. local revenue sources has an important effect on the ability of the state to reduce fiscal disparities - inequalities in the ability of school districts to finance 97
services. When there is a heavy reliance on local taxes, it is harder to reduce these disparities. Reliance on state taxes makes it possible to equalize resources...Often...it is reliance on local taxes rather than reliance on the property tax per se that is responsible for inequalities. Shifting reliance from the property tax to a local income tax, for example, might not reduce inequalities much, if at all. Switching to a state income tax, however, is a different matter, since state financing makes it possible to redistribute resources geographically. (Augenblick et al., 1990, pp. 5-6)
However, the low percentage of local contributions in Alabama masks a wide differentiation
in levels of local contributions across districts. A 1989 report by the Public Affairs Research
Council of Alabama (PARCA) indicated that
Despite the overall low level of local support for public schools in Alabama, there is tremendous variety in local revenues per pupil (emphasis added). At one extreme in 1987, the Marshall County school system received only $113 per pupil in local support; at the other end, the Homewood school system received over 13 times more - $1,537 per pupil - from local sources. Thus, some Alabama school systems benefit from high levels of local support even though the average is low (Public Affairs Research Council of Alabama, 1989, p. 1).
On average, wealthier school districts spend 50% more money per pupil than poor districts in
Alabama (Educational Testing Service, 1991)4. Based upon statistics from the Alabama
Department of Education, total spending levels across the state in 1990-91 ranged from a low of $2,946 per pupil in the city school district of Roanoke to $6,719 per pupil spent in the
school district of Hoover City, located in the suburbs of Birmingham.
The PARCA report indicates that the differentiation in local contributions to education, and therefore levels of spending per pupil, can be traced to two sources. First, like other states, local contributions to education in Alabama come primarily from taxes on property. In 1987, property taxes accounted for roughly 60% of all locally raised revenue for public education in the state5. Differences in property values lead to variations across
4. The Educational Testing Service defined "wealthy" districts as those in the top 5% in the state in spending per pupil and "poor" districts as those in the bottom 5%.
5. Taxes on sales provides much of the balance of the other 40% of locally raised revenue. 98
districts in the amount of money that can be raised from similar property tax rates. The
PARCA report indicated
...that a district-level property tax yielded over $23 per pupil per mill, on average in the systems with highest local support, but less than $13 in the lowest. (Public Affairs Research Council of Alabama, 1989, p. 3)ft.
In other words, property poor districts had to set property tax rates nearly twice as high as
wealthy districts in order to collect the same amount of money.
However, differences in property value alone do not explain disparities in levels of
local contributions. The PARCA report also showed that school districts with the highest
local contributions had tax rates that were, on average, much higher than the rates assessed in
lower spending districts.
...the average effective tax rate for all local support was almost IS mills in the highest- support group but 9 mills in the lowest. (Public Affairs Research Council of Alabama, 1989, p. 3)7
Part of the blame, then, for disparity lies in the fact that some school districts simply do not tax at the same rate as other districts. These two factors indicate that the system of education finance developed by the state and the tax effort of low spending districts are to blame for inequity.
For their part, the legislative and executive branches of Alabama government have done little to alleviate spending disparities in particular or to improve education more generally. Between 1985 and 1990 (while a number of other states were implementing education reforms), there were no significant changes in Alabama’s system of education
(Augenblick et al., 1990). A primary reason for this dearth of reform is that the debate over education reform in Alabama, as in other states, has become inextricably linked to the
6. A "mill" is a tax rate (10 mills=one percent).
7. This statistic includes property and sales taxes. 99
question of taxes. There is a long-standing resistance to tax increases in the state. Alabama
has the 7th lowest tax burden of any state in the nation (World Almanac. 1992). This results
in state and local governments that have become notorious for the minimal levels of services,
such as education, that they provide (Barone and Ujifusa, 1992).
Unlike other Southern states, Alabama’s dedication to low taxes at the expense of
education reform has remained largely unaltered. In the 1980s and 1990s, state governments
across the South began to show an increased willingness to risk voter wrath over tax increases
in order to improve education.
Part of the problem, said Cathy Gassenheimer, director of the statewide education advocacy group A-Plus, was that unlike Mississippi, Tennessee and North Carolina, the state had never elected "a new south Governor" who had a vision that took the state beyond its old traditions...(Smothers, 1992a, p. A-18)
Instead, Alabama’s chief executives, like former Governor Guy Hunt (1987-93), have generally opposed education reform efforts. This opposition is based in large measure on a dedication to low tax rates, justified as a method to attract business to the state (Yardley,
1992).
A lack of action on education reform may also be due to the defection of white middle- and upper-class students to private elementary and secondary schools. This trend began as a response to Brown I and has not diminished over time. The results is a lack of broad interracial support for public education in the state (Smothers, 1992a). As one superintendent put it, there is "...a reluctance on the part of many whites to support ’black’ schools with additional taxes due to the advent of numerous private and Christian schools as the result of integration." (AL-1)
Education reformers have become increasingly frustrated about the weakness of the education system in Alabama and their inability to bring about change through legislative or executive action. 100
A general attitude by the publics, which has been "ingrained" in the citizenry by Alabama politicians (is) that low taxes are a way of life. They run on the platform of keeping taxes below the national average. Obviously, we pay for that mentality in many ways, i.e. poor school support, lack of skilled jobs, outmigration of our smartest and brightest graduates. (AL-2)
COMMENCING A LAWSUIT OVER INEQUITY
In the late 1980s, a few local-level educators began considering a lawsuit against the
state of Alabama over the issue of inequity in education spending. However, Amendment 111
created a good deal of pessimism about the ability of such a legal challenge to be successful.
In fact, legal experts from the Southern Poverty Law Center and from Cumberland Law
School at Samford University concluded that the amendment was an "insurmountable
impediment" to successful litigation. The resolution of education funding disparity was thought to be a political, rather than legal, problem.
These conclusions stalled any further organized efforts for a time. In 1989, however, two sets of events conspired to reinvigorate the effort to bring a formal suit in Alabama.
First, in the summer of 1989, the Public Affairs Research Council of Alabama issued its report. This was the first large-scale circulation of data across the state indicating the existence of wide disparities in spending. Second, and perhaps more importantly, education finance litigation was successful in New Jersey, Kentucky and Texas. The Kentucky case in particular highlighted the potential impact of a judicial decision favoring plaintiffs in these suits. In the wake of the Kentucky decision and armed with the PARCA report, superintendents from a few poor districts renewed informal discussions about a potential lawsuit. 101
In the fall of 1989, the superintendent of the Lawrence County school system, Dr.
DeWayne Key, sent a series of letters to school districts across the state. An initial letter was
sent to 20 of the poorest school districts in the state. The letter was designed primarily to
gauge the sentiment of these districts about the possibility of 1) constructing an organization
that would focus its energies upon bringing more financial equity to the Alabama education
system and 2) using that organization to finance a legal challenge to the state’s education
finance system8. A generally favorable response led to letters being sent to all 129 school
districts in the state soliciting membership in an organization later to be named the Alabama
Coalition for Equity. The letter indicated that a political solution was the preferred option,
but that litigation would be actively considered. Privately, however, the organizers of the
coalition were not optimistic that a political solution to the problem of inequity was a realistic
prospect.
Approximately thirty school districts responded favorably, although tentatively, to the opportunity to become members of a coalition. The first organizational meeting of the
Alabama Coalition for Equity was held in February of 1990. At that time, the membership decided that formal litigation would be pursued9. A legal team was assembled and on May
8. The coalition’s organizers solicited an opinion from the state’s attorney general on the legality of school districts coalescing for the purpose of suing the state. The attorney general’s opinion was that such an action was legal. This was an example of a coalition paying astute attention to earlier education financing cases in other states. This question had been raised during the formal litigation in Kentucky and Texas and had slowed the lawsuits’ progress through the courts. It was an issue the Alabama coalition wanted to resolve early.
9. This decision discouraged a number of districts at the meeting from continuing their association with the Coalition. 102
3, 1990, the Alabama Coalition for Equity, made up of 14 local school districts, filed a
complaint in Montgomery County Circuit Court against the state of Alabama10.
The primary claim was that the Alabama system of public education violated the equal
protection clause of the Alabama constitution. Before the suit could challenge the system of
finance under the education clause, Amendment 111 had to be confronted. The original
complaint dealt with the problem in the following manner:
This provision appears to authorize gny kind of funding system for education, no matter how inequitable, because ng state funding of public schools seems to be required at all. In fact, Amendment 11 l...was proposed and ratified in the mid-1950s for an entirely different reason. The amendment’s purpose was to keep Alabama’s public schools racially segregated despite the United State Supreme Court’s desegregation order in Brown v. Board of Education. 347 U.S. 483 (1954). This racially discriminatory purpose clearly invalidates Amendment 111, including the attempt of that provision to eliminate the State’s responsibility for public schools from Alabama’s fundamental law...(p. 23)
The complaint contained a request that the circuit court rule on the issue of Amendment 111
separately. The feeling among the plaintiffs was that if they lost on the constitutionality of
Amendment 111, the full suit was unlikely to be successful.
Nineteen-ninety was also an election year. Republican Governor Hunt was seeking re-election against Democrat Paul Hubbert. Hunt’s first term had been, to say the least, a disappointment to advocates of education reform in the state. Hubbert, head of the Alabama
Education Association, argued vigorously during the campaign for a progressive package of education reforms. Public opinion polls indicated a wide-spread concern about education across the state, making it the number one issue among voters (Schwartz and Maraniss,
10. The original complaint was later amended to add eight districts who became members of the Coalition late in the summer of 1990. 103
1990). However, Hunt won re-election with 52% of the vote. This further decreased the
likelihood that a political solution to the problem of inequity could be found".
In January of 1991, a group of parents and children brought a second suit against the
state of Alabama regarding a broad array of issues, including inequity in education finance.
Later that same year, the American Civil Liberties Union filed a third funding suit on behalf
of poor districts in the state12. These suits were eventually consolidated with the one
brought by the Alabama Coalition for Equity.
On August 13, 1991, a circuit judge ruled that Amendment 111 was violative of the
14th Amendment of the U.S. Constitution. What remains of the education article now is
simply a mandate that "...the legislature establish, organize and maintain a liberal system of
public schools throughout the state". The original complaint in the financing lawsuit was
subsequently amended to include the assertion that the system of finance violated the
education clause of the Alabama constitution. Oral arguments began in circuit court on
August 3, 1992. On April 2, 1993 the circuit judge ruled in favor of the Coalition. As of
June 1, 1993 the circuit court decision was under appeal.
BIVARIATE ANALYSIS
Twenty-two of Alabama’s 129 districts were active in the Alabama Coalition for
Equity. The question for this research is why these 22 districts joined the Coalition while the
11. The election year also saw the defeat of the circuit judge to whom the Coalition’s case had been assigned. The judge’s campaign and subsequent loss delayed any action on the suit for a number of months.
12. The American Civil Liberties Union had approached the Alabama Coalition for Equity about the possibility of the ACLU becoming part of the original suit. The Coalition, fearing negative publicity, declined the offer. The ACLU subsequently filed their own lawsuit. 104
other 107 districts in the state did not. Surveys were sent to all 129 school districts in
Alabama. Of the 22 members of the Coalition, 14 completed the questionnaire (63.6%)
(hereinafter referred to as "plaintiffs"). Among the other 107 school districts in the state, 74
responded (69.2%) (hereinafter referred to as "non-plaintiffs"). The overall response rate was
68.2%13.
Step One; Recognition of Injury
Before making the actual decision about whether to join the Alabama Coalition for
Equity (thus becoming a plaintiff), it was suggested in chapter three that each district had to
make a number of preliminary decisions. First, the system of finance has to be defined as
injurious. If no injury was perceived as existent, there would be little need for formal
adjudication. The PARCA report indicated the existence of wide disparities in the state’s
education finance system. The question for each district was whether this inequity is damaging to ("injures") lower spending districts.
Respondents were asked about the importance of inter-district equity in spending per pupil to the relative quality of education across districts14. There was general agreement among plaintiff and non-plaintiff districts on the importance of spending equity. All plaintiffs and 85% of non-plaintiffs believed that equity in spending was either "important" of "very important". This indicates a consensus across districts that disparities in spending per pupil are injurious to those at the low end of the spectrum.
13. Among Alabama school districts, relatively wealthy districts were somewhat less likely to respond to the questionnaire than were poorer ones. The correlation between response and district financial status is .167.
14. The question was: "How important are differences in levels of spending per pupil across school districts in your state to the relative quality of education across districts (i.e. do differences in levels of spending across districts create differences in educational quality?)" 105
Step Two; Attribution of Blame
The issue then becomes one of placing blame for the problem. As discussed above,
the independent statistical analysis contained in the PARCA report indicated that because state
funds are distributed roughly evenly, differences in spending levels across districts can be
traced to two sources: differences in 1) local property values and 2) local tax effort (i.e. local
tax rates). This leads to the conclusion that the state created system of finance and the tax
effort of low spending districts have an adverse effect upon inter-district spending levels.
Respondents were asked for their opinion concerning the primary source of spending
disparities. Initially, there is a high level of agreement among plaintiff and non-plaintiff
districts that both state government and lower spending districts are to blame. However,
when prompted to choose who is more to blame, there is a tremendous level of disagreement.
Eighty-six percent of plaintiffs placed blame on the state government and the property tax-
based system it created.
The primary consideration in our entry into the ACE (Alabama Coalition for Equity) suit was a lack of base which our county has for taxation to support public education...If my county millage rate tripled or quadrupled, our children would not reach the level of affluent systems due to the lack of base. (AL-3)
On the other hand, 53% of non-plaintiffs blamed lower spending districts for inequity.
This was indicated by comments from non-plaintiffs such as
"The school district from which the suit originated makes the minimum (emphasis in original) commitment for local funding. I cannot support the coalition when a system does not go beyond the minimum!" (AL-4) and "Many of the local districts could raise more local revenue if they were willing to tax themselves." (AL-5)
The general pattern of the data confirms the suspicions of the model developed in chapter three. Districts which blame state government (or, perhaps more precisely, the system of finance developed by the state government) are more likely to go to court to change 106
that system. Alternatively, if a district felt that disparities can be traced to a lack of adequate
local tax effort in lower spending districts, then the district was unlikely to litigate.
Step Three: Acknowledgement of Court Relevance
The third stage of the transformation process is the recognition of legal recourse. In
order to join a litigation effort, it seems likely that a particular district would have to believe
that the courts are relevant to the problem. First, school districts were asked to define the
"best" method for achieving equity in the system of education finance, given the current
economic and political climate in the state. Seventy-nine percent of plaintiffs chose litigation
as most appropriate. What is interesting is that a substantial majority of non-plaintiffs (61%)
acknowledge the same thing. It seems that because the governor is not supportive of
education reform and because the legislature has failed to act in the past, there is little
optimism among districts that lobbying these branches will bring greater equity to the system.
Only 8% of respondents thought that lobbying was the most appropriate strategy for resolving
the dilemma of school finance disparity13.
This school system elected to join the coalition because the governor and state legislature has shown no leadership in properly funding elementary and secondary education in this state. Litigation will force them to react. (AL-6)
It’s truly sad that professional educators, state leaders, and state and local lawmakers allow the courts to do what these groups should be doing. It’s a blatant abdication of responsibility. (AL-7)
Despite wide-spread pessimism about the ability of legislative lobbying to produce a more equitable system, there were still those who felt that "...we should be working with state officials and the legislature to find a solution." (AL-8)
15. Twenty-four districts (all but one of which were non-plaintiffs) felt that the problem was best solved by requiring a greater commitment from districts where spending is relatively low. 107
These results signal an admittance that a dispute exists and that lobbying will not
resolve it. However, the acknowledgement that litigation is more appropriate than lobbying
for achieving specific ends in a particular context is not necessarily an endorsement of the act
of litigation itself. To test for the level of support for judicial intervention into education,
districts were queried about their preferred level of judicial involvement in a variety of issues,
including racial integration, church-state relations, codes of conduct and education finance.
The results are in table 2.
TABLE 2
ATTITUDES IN ALABAMA ABOUT THE PREFERRED LEVEL OF JUDICIAL INVOLVEMENT IN DISPUTES IN PARTICULAR AREAS OF ELEMENTARY AND SECONDARY EDUCATION (Percentage of all districts with particular preferences)
Always/ Rarely/ Generally Sometimes Never
Codes of conduct 1% 23% 75% Religious practices 10% 34% 56% Disciplinary practices 1% 47% 52%
Equal opportunities for women students 5% 55% 40% Education finance 14% 57% 29% Employment practices 2% 75% 23% Services for handicapped students 17% 66% 17% Racial integration 35% 51% 14%
N =88
On the question of judicial legitimacy in education, an interesting pattern develops. Alabama
school districts apparently make distinctions about the general types of policies in which the courts have a role to play. Districts seem to be relatively hostile to judicial involvement in 108 issues related to the day-to-day operations of schools. In terms of codes of conduct, disciplinary practices and religious practices, a majority of school districts believe that judicial involvement should be rare or non-existent. On the other hand, respondents were more hospitable to occasional court activity in areas that involve the rights or privileges of particular individuals or groups. Three of those areas are united by concerns about the educational opportunities of particular groups: females, handicapped students and minorities.
In addition, one of the primary components of education finance disputes is the educational opportunities of children in low spending districts. Finally, employment disputes may also relate to the treatment of particular groups, such as women and minorities.
There are only moderate differences between plaintiff and non-plaintiff districts across most issue areas. The results are in table 3.
TABLE 3
PERCENTAGE OF PLAINTIFF AND NON-PLAINTIFF DISTRICTS IN ALABAMA THAT BELIEVE THE JUDICIARY SHOULD ’RARELY OR NEVER" BE INVOLVED IN DISPUTES IN AREAS OF EDUCATION
Plaintiff Non-Plaintiff
Codes of conduct 86% 74% Religious practices 71% 53% Disciplinary practices 64% 50% Equal opportunities for female students 43% 41% Services for handicapped students 21% 16% Employment practices 14% 24% Education finance 7% 34% Racial integration 7% 15%
N = 88 109
It is interesting to note that plaintiffs are generally more hostile to judicial intervention into
education disputes. However, the difference of opinion important to this research moves in
the predicted direction. As expected, non-plaintiff districts are much more hostile to court
involvement in education finance than are plaintiffs.
Consideration of Costs
As discussed in chapter three, the primary costs involved in litigation are related to
time, money and damage to the relationship within which a dispute arises. Time becomes
important because litigation generally requires parties to spend a great deal of time preparing
for and being present at formal legal proceedings. However, as in the other states in the
sample, decisions about the education finance litigation in Alabama are made primarily by the
legal team, in consultation with the Alabama Coalition’s officers. This makes it unlikely that
any single individual or set of individuals will be forced to commit a substantial amount of
time to the litigation if their district joins the Coalition. Reflecting this set of circumstances,
a vast majority of all respondents felt that there was little or no time commitment involved in
becoming a plaintiff.
On the issue of money, each member of the Coalition is asked to contribute four
dollars per student per year for the duration of the suit. Because of the nature of these
lawsuits (described in chapter three), that duration is potentially quite large. Therefore, the
financial commitment is necessarily open-ended. However, there seems to be little concern
among respondents about this commitment. Only 15% of non-plaintiffs and 7% of plaintiffs
were willing to define the monetary commitment of Coalition membership as "substantial"16.
16. It is important to note, however, that a substantial percentage of non-plaintiffs (37%) were unaware of the size of the monetary costs. 110
Still, there were some districts that were "...not willing to make a commitment to spend funds without some idea of the total cost." (AL-9)
Within the context of a continuous relationship (like the one between local school districts and state government), an adversarial action like litigation can cause damage. In
Alabama, this potential cost did not appear to be a consideration either. Vast majorities of plaintiffs and non-plaintiffs dealt with this potential concern in one of two ways. First, many districts reported that they did not consider this possibility in making their decision. Second, in districts which did consider the potential for damage, the feeling among most was that the relationship would be largely unaffected. This attitude seemed to remove the fear that the state would retaliate against districts that decided to join the suit. It is interesting that school districts are pessimistic about the willingness of the governor or legislature to reform the education system in Alabama. However, there is little concern that such intransigence on the part of state government will transform itself into animosity toward litigation designed to achieve reform. In general, then, the costs normally associated with litigation seemed to have played only a peripheral role in the decisions of local school districts in this context.
Consideration of Benefits
A consideration of benefits begins with the dispute that set the litigation in motion.
As discussed above, there is little disagreement among plaintiffs and non-plaintiffs on the issue of the importance of equity in education spending. Most districts seem to agree with the argument that disparity in education spending has an adverse affect on children in lower spending schools.
However, districts presumably balance an appreciation of the importance of equity with the potential ramifications of a more equitable system for their own financial status. In Ill other words, a district considers the comparison between its current financial status and that status under a more equitable system of finance. These perceptions create a set of expectations about potential benefits qt costs. The districts that will benefit most from a new, more equitable system are those whose financial status will be relatively better under such a system than it is now. In turn, these districts would be most likely to become involved in litigation designed to achieve alteration in the status quo. For such districts, there is no need for a trade-off between a desire for a more equitable system and a concern about personal financial status.
On the other hand, some districts may predict that their financial status will be damaged if a more equitable system of finance is instituted. Districts most likely to make such a prediction are those whose financial status is currently relatively strong. These districts would seem less likely to join the Coalition given that such districts benefit from the current system. To test this, each respondent was asked to rate their district’s current financial status relative to other districts in the state. The results are in table 4. 112
TABLE 4
RELATIONSHIP BETWEEN SUBJECTIVE EVALUATIONS OF FINANCIAL STATUS AND THE DECISION TO BECOME A PLAINTIFF IN ALABAMA
Evaluation of status Plaintiff Non-Plaintiff
Very good 0% 100%
Above average 0% 100%
Average 12% 88%
Below average 37% 63%
Poor 44% 56%
N=88
It will be recalled that, overall, 22 of the 129 school districts in Alabama became plaintiffs
(17.1 %). Subjective judgements of financial status are strongly related to the decision about whether to join the litigation (Tau-B= .380). Every member of the Coalition considered their financial status to be "average", at best.
This relationship is maintained when district financial status is measured objectively.
School districts were split into four quartiles based upon the value of property per pupil within the district. The relationship of this statistic to the decision to become a plaintiff is expressed in Table 5. 113
TABLE 5
PERCENTAGE OF DISTRICTS WITHIN EACH QUARTILE (BASED ON VALUE OF PROPERTY PER PUPIL) THAT BECAME PLAINTIFFS IN ALABAMA
District Status* Became plaintiffs
First quartile 3.1%
Second quartile 12.5%
Third quartile 28.1%
Fourth quartile 25.8%
N = 127
* The first quartile represents the districts that are in the highest 25% of districts in terms of property value per pupil.
As the table indicates, there is a strong relationship between district financial status (as
defined by property wealth per pupil) and the decision to become a plaintiff (Tau-B=.226).
The vast majority of plaintiffs came from districts in the third and fourth quartiles (i.e.
relatively poor districts). In fact, 77% of the Coalition’s membership came from the bottom
half of districts in terms of property wealth. This result is of little surprise, given the
centrality of property wealth to the dispute.
Tables 4 and 5 indicate a general unwillingness among "wealthy" districts to become
involved in litigation designed to alter the current method of education finance. Remember, this is true even though most districts, regardless of financial status, agree on the importance 114
of equity in education finance17. It seems as if relatively well-to-do districts, given the
choice between a belief in the need for equity and a desire to maintain current financial status,
opt for the latter.
Efficacy
The link between the act of litigation to achieve equity and the future financial status
of a particular school district under a more equitable system of finance is a complex one.
There is an implicit assumption that the litigation will produce a more equitable system. As
discussed in chapter three, a change in the method of finance can come about as a result of
litigation in one of two ways: a court decision or legislative action designed to preempt it.
Earlier it was discovered that there is little optimism among both plaintiffs and non
plaintiffs concerning the latter. Events that unfolded in early 1992 established the accuracy of
this prediction. During the 1992 session of the Alabama legislature, education finance reform
was at the top of the agenda18. A $410 million dollar package of education reforms and tax
increases made its way through the Alabama House of Representatives in March. However,
the package died because the Senate did not call for a vote on the measure before the end of
the session in May. Governor Hunt let it be known immediately that there would be no special session to deal with the issue (Smothers, 1992b).
Therefore, the creation of a more equitable system, at least for now, is contingent upon a court decision favoring the plaintiffs. Plaintiff districts were somewhat more
17. The correlation between the value of property within a district and the importance the district places on inter-district equity in spending is .135.
18. It is, of course, difficult to isolate the influence of the pending lawsuit on the genesis of this circumstance. At the very least, it is likely that the suit increased the urgency with which the legislature debated finance reform. 115
optimistic about a court decision in their favor than were non-plaintiffs. A majority of
plaintiffs asserted that they were "sure the plaintiffs would win". Only one quarter of non
plaintiffs were as certain (however, an additional 37% of non-plaintiffs thought the plaintiffs
"might win"). This result fits with expectations. The decision to take an action is, at least
partially, contingent upon the belief that the action will have some desired effect. It seems
likely, then, that plaintiffs would have a higher degree of efficacy about the litigation than
would non-plaintiffs.
Plaintiffs and non-plaintiffs depended upon many of the same sources of information
for their predictions about the likelihood of a court decision overturning the current method of
finance. It was mentioned above that two sets of events were cited by Coalition leaders as
critical to the genesis of the suit: the PARCA report and the court decisions in education
finance cases in Kentucky, Texas and New Jersey in 1989. These events were also critical to
predictions about plaintiff success in Alabama. Education finance cases in other states were
important to the predictions of a majority of both plaintiffs and non-plaintiffs. Sixty-six of the
88 respondents mentioned the Kentucky case while 54 mentioned the lawsuit in Texas. The
PARCA report was cited by a majority of plaintiffs and 37% of non-plaintiffs as an important
source of information about potential court action. These results are probably attributable to
the substantial news coverage in Alabama given to the release of the PARCA report and the
decisions in Kentucky and Texas. A substantial number of both plaintiffs and non-plaintiffs
also indicated that attorneys were a source of information about the likelihood that the courts
would side with the plaintiffs.
A prediction that the Alabama courts would decide in favor of the plaintiffs in this dispute is not, however, equivalent to developing perceptions about how a district’s financial status will be affected by a more equitable system. Even if the Alabama Supreme Court 116
declares the current system unconstitutional, the legislative response might not, ultimately,
produce greater equity in funding. Respondents were asked whether a court decision favoring
the plaintiffs would lead to changes in the current system. Plaintiffs were very optimistic.
The consensus seems to be that once the pressure of a supreme court mandate is exerted, the
legislature and governor will act to reform the education finance system. Seventy-nine percent
thought that "substantial" change in the system of finance would result. A majority of non
plaintiffs (56%) felt the same way. Most others felt that at least "moderate" change in the
system would result from such a decision.
The issue then becomes the effect of such change the financial status of particular
districts. Here is where the difference of opinion between plaintiffs and non-plaintiffs is most
pronounced. Plaintiffs were generally optimistic that all districts in the state would benefit
from a more equitable system. On the other hand, a majority of non-plaintiffs believed that
only poor districts would benefit. Remember that very few plaintiffs came from districts that
considered their financial status to be "very good" or "above average". This supports the
assumption about financial status and its link to participation described above. Wealthy
districts are less likely to join the litigation because they do not see themselves as benefiting
from a more equitable system.
This notion is further supported by the fact that many wealthy districts seem resigned to the fact that they "will lose state hinds and have to raise local funds. "(AL-10) Forty percent of non-plaintiffs believed that poor districts would benefit under a new system at the expense of wealthy districts. What districts make up this 40%? The vast majority of them
(89.3%) are districts that consider their current financial status to be "very good", "above average" or "average". It is little wonder that, even though there is consensus on the need for greater equity in the system, wealthy districts are unlikely to become plaintiffs. This 117 represents a perception that, because there is ultimately a finite amount of money that can be spent on education in the state, raising spending in some districts may require the transfer of funds collected in others. Because education systems traditionally depend so heavily on property taxes, it would seem reasonable to suspect that districts with relatively high property values would see some portion of their property tax dollars spent in other districts within the context of a more equitable finance system.
This discussion has yet to explain why there are a number of districts that are poor by objective and/or subjective measures that do not join the litigation. Every plaintiff predicted that their own financial status would improve. This is a reasonable outcome given the recognized importance of efficacy to the decision to undertake particular actions. However,
59% of non-plaintiffs thought their financial status would improve at least moderately under a new, more equitable system. This was most evident among poorer non-plaintiffs.
This seems to indicate that the problem of "free-riding" may be active in the litigation. There are a number of districts that predict that they will benefit ffom such a system, but do not join litigation designed to produce such a system. It may be that such districts simply predict that they can enjoy the benefits of the litigation without enduring the costs. In fact, very few non-plaintiff respondents believed that involvement in the creation of a new system of finance mandated by the courts or the benefits of such a system would be contingent upon membership in the Alabama Coalition for Equity. Several districts seemed to expect "...to gain benefits if not a member and the suit was successful." (AL-11)19
Is free-riding really a problem? Accusations of free-riding are generally made against parties who agree with an action, will benefit from it, but refuse to pay the costs associated
19. There were, of course, districts in the middle, not really definable as wealthy or poor. A number of these districts are just above or "...just below average in local support for education (and) probably have little to gain or lose" from a more equitable system. (AL-12) 118
with its instigation. The model developed and analyzed here is multi-staged and sequential.
It suggests that there were a number of preliminary questions that Alabama districts needed to
consider before actually deciding whether to become plaintiffs. In order for a district to
actively consider joining the Coalition, it must acknowledge the existence of the injury, place
blame for the injury on the state and accept court intervention as a method for resolving the
dispute. In order to truly take a "free ride", then, districts must meet these requirements,
believe they will benefit but still not join the Coalition.
In order to examine the abundance of free-riding (by this definition), the districts
which did not join the Coalition, but thought they would benefit, were analyzed. As stated
above, 59% of non-plaintiffs believed they would benefit from a more equitable system.
However, only 22% of all non-plaintiffs thought they would benefit, perceived disparity as
injurious, blamed the state for the injury and accepted the idea of judicial intervention into the
problem20.
The problem of free-riders, while evident, is not as significant as initially suggested.
There are still a number of districts who simply determine that they can gain benefits without
paying costs. But it seems as if there are a number of non-plaintiffs that do not become
involved due to other forces, even though they think the creation of a more equitable system
is in their best interest.
Third Parties
There are a number of parties that may attempt to influence the decisions of school boards and superintendents in this context. The place to begin an analysis of the importance
20. On the other hand, 79% of plaintiffs acknowledged the injury, blamed the state and accepted judicial intervention. 119
of these forces is with an investigation into whether these parties had opinions on the issue.
Obviously, those who lack an opinion on a particular issue cannot be expected to influence
another’s decision on that issue. Each respondent was asked about the existence of opinions
about the litigation among a number of parties residing within the district. The results are in
table 6.
TABLE 6
PERCENTAGE OF DISTRICTS IN ALABAMA THAT REPORTED THAT EACH THIRD PARTY HAD AN OPINION ABOUT DISTRICT INVOLVEMENT IN THE LITIGATION*
Third Party Plaintiff Non-Plaintiff
School administrators 100% 53% Parents 86% 12% Teachers 79% 18% School district attorney 70% 20% State legislators 64% 29% Business/civic leaders 64% 25% Local government officials 57% 36% General public 57% 18% Interest organizations 0% 1%
N = 87 (for all third parties except school district attorneys, where N=65)
* The table represents the number of respondents who, in reference to each particular third party, answered that the party a) favored, b) was evenly divided or c) opposed joining the Coalition.
Perhaps most surprisingly, there is only qq£ instance in all districts (both plaintiff and non plaintiff) in which an interest group, located within a district, expressed an opinion. This is surprising given the central role interest groups have played in policy-centered litigation in the past. Two explanations of this phenomenon seem plausible. First, it may simply be that 120
potentially relevant groups are not interested in this issue. Second, groups with potential
relevance, such as local teachers unions, are having their concerns voiced by individual
professionals within the district, reducing the need for group action.
The table also shows that with the exception of interest groups, each third party had
an opinion on the issue in a majority of plaintiff districts. In particular, education
professionals, such as school administrators and teachers, and parents had opinions in nearly
all plaintiff districts.
On the other hand, third parties were much quieter in non-plaintiff districts. The only
exception was school administrators, who were referred to by 53% of non-plaintiffs. An
explanation of this relative inactivity may lie in the fact that litigation is a process, rather than
a single decision. It may be that most third parties become involved during the final stage of
the transformation process: the decision of whether to become a plaintiff. Obviously, this is a
decision approached in plaintiff districts. However, most non-plaintiff districts may have
made decisions earlier in the transformation process which removed the necessity of making
such a determination. In other words, the decision makers in most non-plaintiff districts may
never have actually considered joining the litigation because they did not get past the initial stages of the transformation process. If third parties were largely excluded from these initial stages, there would be no opportunity for them to formulate opinions.
Why is it that third parties would not be involved in earlier stages? It may be that the nature of the questions involved in the first steps lend themselves to quick, informal decisions by district decision makers. When a particular superintendent is contacted on behalf of his district, it may be relatively easy for him/her, in isolation or in informal consultation with members of the board, to conclude that inequity does not cause injury, that poor districts are to blame for inequity and/or that this is a political, rather than legal, question. Any of these 121
conclusions precludes the need for further action on the part of the district. For these
districts, the decision about whether to join the Coalition never comes about21. Because such
a decision is never approached, many third parties are perhaps unlikely to know of the
possibility of their district becoming a litigant or, for that matter, the existence of the lawsuit
itself. Information about the litigation simply may not be circulated widely enough to gain the
attention of third parties within the district. Obviously, a lack of information on the subject
of joining the litigation prohibits groups from formulating opinions about it.
However, when a district actively considers whether to become a Coalition member,
the necessity of expending district funds for membership fees becomes an issue. Formal
procedures generally require that district decision makers address the question of financial
expenditure in a formal setting (i.e. a public meeting of the board of education). When this
occurs, it is probable that information about the litigation becomes circulated. This creates
the opportunity for various third parties to formulate opinions about the litigation. In fact,
research indicates that the public is largely excluded from school district decision making,
except when high-profile decisions are involved (Greene, 1989). The decision to join the
Coalition may only achieve this status when addressed in a formal setting.
This suggestion makes sense in light of the one exception to this pattern. School
administrators are more active than any other third party in the decisions of non-plaintiff districts. This is not surprising for two reasons. First, administrators are probably better
able to gather information about education within the state, thus being more likely to be exposed to the litigation, understand the issues surrounding it and subsequently forming an opinion about it. Professional organizations may provide newsletters which would be likely to
21. Indeed, individuals associated with the Alabama Coalition for Equity indicated that they felt that, in many instances, superintendents made decisions not to join the Coalition on an informal basis, without much consideration and often without consulting with the school board. 122
keep its members updated on an issue such as this. Administrators may also have a network
of personal contacts which keep them aware of the situation. Finally, personal interest in
education may spur school administrators to constantly gather news and information about
Alabama’s education system.
Second, school administrators may have better access to school district decision
makers like superintendents. This allows school administrators to be aware of the day-to-day
occurrences in the school system, such as the solicitation for membership by the Coalition.
This access also allows school administrators to perhaps be more involved than other actors
on questions of this sort. Perhaps most important, table 6 (above) does not reflect opinion
levels per se. Rather, it reflects the opinions about which superintendents were aware. By
virtue of their positions, school administrators are better able to voice their opinions to district
decision makers22.
Third parties are involved in only a limited number of non-plaintiff districts perhaps
because most of these districts do not make formal decisions on this issue. In order to
analyze the accuracy of this argument, each respondent was first asked whether a "formal
vote" was taken on the issue of Coalition membership. Every plaintiff district reported that
such a vote was taken. Only 16% of non-plaintiffs responded affirmatively. Next, non
plaintiffs were categorized based upon whether or not an official vote was taken.
22. Respondents had the option of answering "Don’t Know" in response to the question about third party opinion. For the purposes of this analysis, this response is treated as equivalent to "No opinion was expressed". This is reasonable because if a third party does have an opinion, but the decision maker is unaware of it, then in terms of the decision making process, the third party has no opinion. 123
TABLE 7
PERCENTAGE OF NON-PLAINTIFF DISTRICTS IN ALABAMA THAT REPORTED THAT EACH THIRD PARTY HAD AN OPINION ABOUT DISTRICT INVOLVEMENT IN FINANCING LITIGATION*
Was an "official vote” taken? Third Partv Yes Nfi
School administrators 83% 49% Local government officials 66% 29% School district attorney 36% 8% State legislators 33% 29% General public 33% 15% Teachers 33% 15% Business/civic leaders 25% 25% Parents 25% 10%
N=74 (for all third parties except school district attorneys, where N=65)
* The table represents the number of respondents who, in reference to each particular third party, answered that the party a) favored, b) was evenly divided or c) opposed joining the Coalition.
Table 7 presents a partial vindication for the above argument. In general, third parties formulated opinions more often in non-plaintiff districts in which an official vote was taken.
In some instances, the difference is substantial. However, even when an official vote is taken, third parties in non-plaintiff districts did not possess opinions near the levels of such parties in plaintiff districts. In general, this may simply mean that even when official votes 124
are taken, there simply may not have been as much controversy in districts that ultimately
decide against joining the Coalition23.
There are two third parties external to the district which may be important: interest
groups and similarly situated parties (i.e. other school districts). As with interest groups
within the school district, external interest organizations rarely had opinions. No plaintiff
districts and only 10% of non-plaintiffs reported some contact with interest organizations.
The explanations developed for the lack of activity by internal interest organizations seem
applicable here as well. It may also be that because many interest organizations are state
wide, they encompass members from a wide variety of school districts. This reduces the
possibility that the organization as a whole can take a stand on the issue because the
membership, like the school districts, may be divided on the wisdom of the lawsuit.
All school districts in Alabama were presented with the exact same decision: whether
to join the Coalition. Respondents were asked if they considered the actions of other school
districts in making their own decisions about involvement in the litigation.
23. Presumably, greater controversy over whether to join the Coalition generates higher levels of opinion among various individuals in the district. Of course, the reverse may also be true: the more individuals that have opinions, the greater the likelihood of controversy (if such opinions are conflicting). 125
TABLE 8
PERCENTAGE OF PLAINTIFFS AND NON-PLAINTIFFS IN ALABAMA THAT CONSIDERED THE DECISIONS OF OTHER SCHOOL DISTRICTS
Tvpe of school district referred to Plaintiff Non-Plaintiff
Districts possessing similar spending levels 29% 30% Districts possessing students with similar demographic characteristics 43% 14% Districts in same county 0% 17% Districts in neighboring county 7% 16% Districts in same region 7% 13% Districts with a reputation for educational leadership in the state 7% 9% Districts where decision makers in your district have personal contacts 0% 1%
N=83
Overall, 57% of plaintiffs and 53% of non-plaintiffs stated that they paid attention to the
decisions of at least one other district. As the table indicates, nearly a third of each type of
district referred to the decisions of districts in which levels of spending per pupil were
similar. This makes sense, given the centrality of spending to the decision. Plaintiffs were
even more likely to refer to the decisions of districts with similar demographic characteristics among its students (presumably race and income).
Tables 6 and 8 tell only part of the story. They merely indicate what third parties had opinions on the issue and/or were reference points for decision makers. Still to consider is how important these opinions were to the decisions of particular districts. One way to evaluate the influence of a particular group’s opinion is to analyze the correlation between the position of the third party and an individual district’s ultimate litigation decision. 126
H TABLE 9
CORRELATION BETWEEN THIRD PARTY OPINION AND THE DECISION OF LOCAL SCHOOL DISTRICTS ON WHETHER TO BECOME A PLAINTIFF IN ALABAMA
Business/civic leaders 1.000 Local government officials .907 General public .816 School district attorney .800 Parents .784 State legislators .764 School administrators .525 Teachers .456
N = 87 (for all third parties except school district attorneys, where N=64)
In general, third party opinions coincide with the final decisions of their districts. In most
cases, the level of agreement is high, particularly between district decisions and the opinions
of local elites, such as business leaders and local government officials. These findings are
consistent with expectations developed from the results of previous research on the participation of third parties in school district decision making. That is, third parties within school districts are generally uninterested in most school district decisions. However, there are particular issues that do become salient among the public. In these cases, school district decision making is often influenced by public opinion.
The most interesting components of this table, however, are the two exceptions to this pattern. Education professionals, namely teachers and school administrators, have the lowest level of agreement with their district’s decision. Why? A closer look at the data reveals the fact that every disagreement that occurred came in instances in which teachers and administrators favored joining the litigation in districts that ultimately decided not to become 127
involved. It was noted earlier that there is a high level of consensus across school districts
that inter-district equity in financing is important. However, districts were often forced to
balance a preference for equity with concerns that their financial status would diminish under
a more equitable system. Most districts appeared to choose the latter as relatively more
important and made litigation decisions accordingly. It is, of course, not irrational to place
one’s immediate well-being ahead of concerns about the welfare of a wider community. Most
third parties within particular districts may simply reflect this bias.
Education professionals, on the other hand, may have a more fervent belief in the
need for equity. In addition, their views about educational matters may not be as constrained
by concerns about their own districts. In other words, unlike the governing body or the
general public within a particular district, education professionals may place greater
importance on state-wide equity than on the financial status of a particular district. This
allows them to support district involvement in the litigation even when there are potentially
negative consequences for their own district. In addition, it may be that education
professionals, more so than elected school boards or other community members, have a
greater appreciation for the full ramifications of the generally poor health of Alabama’s
education system. This compels them to advocate any choice which may potentially improve
some or all of Alabama’s schools.
The preceding bivariate analyses indicate that there are a number of forces which separate plaintiff and non-plaintiff school districts in Alabama. Six factors seemed to be particularly relevant to the task of explaining why some districts joined the Alabama Coalition for Equity while others did not: 1) the placement of blame for inequity, 2) opinions about the propriety of judicial intervention into the dispute over education finance, 3) district current financial status, 4) predictions about the likelihood that the plaintiffs would be successful, 5) 128 predictions about the dispersion of the benefits resulting from a court decision favoring the plaintiffs and 6) the opinions of third parties.
MULTIVARIATE ANALYSIS
While interesting, the above information does not give an indication of the relative importance of these factors. It remains to be seen which independent variables have relatively high influence over the decisions of school districts. Table 10 lists the intercorrelations of the dependent and independent variables. 129
TABLE 10
INTERCORRELATIONS AMONG THE DEPENDENT AND INDEPENDENT VARIABLES IN ALABAMA*
1 2 3 4 5 6 7 8 9 1010 11 12
2) .200 3) .345 .306 4) .139 .447 .283 5) .448 .428 .285 .363 6) .371 .326 .331 .350 .546 7) .134 -.229 .000 -.061 -.049 -.093 8) .011 .139 .190 .059 .186 .133 .288 9) .320 .169 .162 .325 .281 .330 .047 .101 10) .215 .401 .096 .335 .134 .376 -.108 .083 .343 11) .435 .120 .221 .054 .392 .382 .033 .014 .225 .003 12) .635 .124 .293 .049 .435 .422 .105 -.036 .169 -.087 .621 13) .597 .221 .243 .316 .566 .565 .082 -.059 .235 .058
* 1. dependent variable 2. is there an injury 3. who is blamed 4. is judicial intervention appropriate 5. current financial status 6. prediction about future financial status 7. time/monetary costs 8. prediction about effect on relations with state government 9. prediction about chances for plaintiff success 10. prediction about the extent of change in financing system from court decision favoring the plaintiffs 11. opinion of general public 12. opinion of local elites 13. opinion of education professionals
N = 74
The results of the probit equation are listed in table 11. 130
TABLE 11
RESULTS OF A PROBIT ANALYSIS OF THE MODEL OF THE DECISION MAKING OF SCHOOL DISTRICTS IN REFERENCE TO THE EDUCATION FINANCE LITIGATION IN ALABAMA
Standard Prob. VARIABLE b Error Change
CONSTANT -8.9949 4.8925 Is there an injury 0.9026 1.0740 23.9% Who is blamed 3.2361 2.3657 32.8%* Is judicial intervention appropriate -1.1800 1.4543 -27.6% Current financial status 0.1046 0.5183 3.4% Prediction about future financial status 0.7197 1.1431 20.6% Time/monetary costs 1.6927 3.2467 31.2% Prediction about effect on relations with state government -2.0246 2.4532 -32.2% Prediction about chances for plaintiff success 1.1977 0.9662 27.9% Prediction about the extent of change in financing system from court decision favoring the plaintiffs -0.3691 1.2048 -12.0% Opinion of general public -0.8481 2.4805 -23.1% Opinion of local elites 1.7512 0.8753 31.5%** Opinion of education professionals 1.0517 0.7839 26.1%
N =74 Estimated R-squared=.817
** t-statistic significant at the .025 level * t-statistic significant at the .100 level
Twenty-two 22 of Alabama’s 129 school districts became members of the Coalition.
Therefore, when no other information is available, one may predict the decisions of the districts with an accuracy of 82.9% simply by guessing that every district will not join. The model is able to predict 95.9% of the cases correctly. This is a reduction in error of 76%.
The model therefore does well in predicting district behavior in Alabama. In general, it 131
seems as if information about the 12 variables in table 11 allow for a fairly well-developed
understanding of the reasons why school districts decide for/against joining the Alabama
Coalition for Equity.
As discussed in chapter four, the results of the multivariate analysis are discussed
primarily in terms of the probability changes associated with each independent variable24.
Eight of the 12 independent variables operate in the predicted direction. The variable
associated with the opinions of local elites performs in the predicted direction and is
significant at the .025 level. It also produces a relatively high independent change in the
dependent variable (31.5%). This indicates that elites exercise some level of influence over
the decisions of school districts. School boards and superintendents are subject to the
influence of individuals who hold positions of authority within the general public (local
government officials, business leaders and state legislators).
The same apparently cannot be said of the general public. The multivariate results
show that change in the public’s opinion about the litigation produces a negative affect on the decision of the districts. As the public becomes opposed to the idea of joining the Coalition,
school districts become increasingly likely to join.
The variable associated with the placement of blame is also significant (. 10) and produces a 32.8% change in the dependent variable. As expected, those districts which felt that the state was "most" to blame for inequity were most likely to join the Coalition. The variable associated with time and monetary costs also performs relatively strongly.
24. "Probability change" refers to the amount of change in the dependent variable (the decision to litigate) which is caused by a single unit change in the independent variable. When analyzing the probability changes, it is important to note the number of units possessed by each independent variable (described in chapter four). Because the probability changes are based upon one unit change in the independent variable, variables with relatively low numbers of units are at an advantage. This is because one unit change in these variables are capable of producing relatively larger percentage changes in the dependent variable. 132
Contrary to expectations, plaintiffs are substantially more likely to predict that
relations between coalition members and the state will be damaged. Why would this be the
case? The bivariate analysis offers two possible clues. First, it was shown that plaintiffs
came primarily from districts that were relatively poor. Second, few districts predicted that
damage to relations caused by the litigation would be manifested in retribution from the state.
Plaintiffs in Alabama may acknowledge that damage will occur, but given their current
financial situation and the lack of potential retribution, members of the coalition think there is
little to lose.
In addition, districts which think that litigation is the most appropriate method to
achieve equity are ig§£ likely to join the coalition. The bivariate analysis showed that the
majority of plaintiff and non-plaintiff districts think that the political branches are not likely to
reform the finance system without court intervention. The results of the multivariate analysis
may simply indicate the true desperation of plaintiffs who disapprove of court intervention
into the matter, but feel they have little choice but to support it. The other variable that
performs in a direction contrary to expectations is the prediction about the extent of change in
the system and the opinions of the general public. This variable, however, appears to be of
relatively little importance.
Finally, it is worth noting the relatively low importance of the financial status
variable. The results appear to indicate that subjective evaluations of current financial status have only a negligible influence25. This is surprising given the centrality of financial status to the dispute and the results of the bivariate analysis.
25. When an objective measure of financial status (spending per pupil, value of property per pupil) was substituted into the equation, the variable continued to perform in a lackluster fashion. 133
MULTIVARIATE ANALYSIS-PART II
On the basis of the results in table 11, it seems as if third parties are relatively
influential. However, table 10 shows that these variables are also correlated relatively highly
with other independent variables. This serves to decrease the explanatory power of non-third
party variables in the multivariate analysis.
One could perhaps argue that the third party variables are inappropriate because they
are not of the same conceptual order as the other independent variables. The third parties
may be, like the district decision makers themselves, reacting to contextual variables
(placement of blame, likelihood of success, etc.). Rather than being influenced by third
parties, school districts are simply reacting to the same information as third parties are. In
other words, the strength of the third party variable in the regression equation may reflect
agreement with, rather than objective influence upon, the decisions of district decision
makers.
A second concern about the third party variables could also be raised. The variables used in this analysis are operationalized on the basis of questionnaire responses. Conjecture about the views of third parties on the question of joining the litigation may be particularly susceptible to the desire of respondents (either consciously or subconsciously) to present the appearance of district decision maker agreement with other actors within the district (such as the general public, local elites or school administrators). This phenomenon will affect the data analysis by artificially increasing the correlation between school district decisions and the
"views" of third parties.
If these concerns are accurate, the model analyzed in table 11 would be misspecified.
The regression analysis was conducted a second time in the absence of third party variables.
The results are in table 12. 134
TABLE 12
RESULTS OF A PROBIT ANALYSIS OF THE REVISED MODEL OF THE DECISION MAKING OF SCHOOL DISTRICTS IN REFERENCE TO THE EDUCATION FINANCE LITIGATION IN ALABAMA
Standard VARIABLE h Error I
CONSTANT -6.0927 2.0666 -2.9482 Is there an injury 0.2470 0.5447 0.4535 Who is blamed 1.4916 0.6303 2.3664*** Is judicial intervention appropriate -1.2184 0.6892 -1.7678** Current financial status 0.8172 0.3369 2.4255**** Prediction about future financial status 0.8372 0.6088 1.3752* Time/monetary costs 1.1794 0.7706 1.5304* Prediction about effect on relations with state government -1.2836 0.7313 -1.7553** Prediction about chances for plaintiff success 0.4737 0.3549 1.3347* Prediction about the extent of change in financing system from court decision favoring the plaintiffs -0.0534 0.6199 -0.0862
N =76 Estimated R-squared = .504
**** t-statistic significant at the .010 level *** t-statistic significant at the .025 level ** t-statistic significant at the .050 level * t-statistic significant at the .100 level
The table indicates that when third parties are dropped from the equation, seven of the nine remaining variables achieve statistical significance. Only the perception of injury and the prediction about the amount of change in the status quo fail to reach significance in the revised model. As in table 11, views on the propriety of judicial intervention and predictions 135
about the effect of litigation on relations with the state operate strongly in a direction opposite
to that which is predicted.
Perhaps most importantly, though, is the fact that current financial status becomes
significant at the .01 level in table 12. This result certainly is much more consistent
(compared to table 11) in terms of the expectations which underlie the model developed here.
A broader comparison of tables 11 and 12 raises the question of whether third parties
ought to be included in the equation designed to analyze district decision making in the
context of litigation against the state. Do third parties influence the decisions of school
districts or are they simply in agreement with those decisions based upon separate processing
of the same information?
The potential for model misspecification is a problem that plagues any empirical
endeavor. Social science does not allow for definitive choices to be made regarding which
independent variables should be included in an explanatory equation. While statistical
techniques may assist in narrowing the choices of which variables are relevant, selection is
ultimately driven by theoretical concerns26. Chapter three provides a detailed discussion of
the theoretical and empirical justification for the inclusion of third parties as independent
variables in explanations of litigant behavior. Past research on the decisions of litigants in
private and public contexts indicates the relative importance of third parties. In addition, the
literature on the decision making processes of school districts lends credence to the notion that
third parties possess independent influence. This assertion is at least applicable to "high-
profile" decision. It is reasonable to assume that a decision to sue the state over the level of
binding in the district constitutes such a decision. Finally, when respondents were asked
26. Comparing the r-squareds of the models can perhaps give a very rough sense of their comparative strength, but such an approach is fraught with tenuous assumptions (Berry and Feldman, 1985). 136 directly about the relative influence of a variety of forces on the decision to litigate, the opinions of third parties were consistently labeled as "important" or "very important"27.
Doubts about the objective accuracy of the responses concerning the views of third parties are also difficult, if not impossible, to eliminate. There will no doubt be some level of inaccuracy when respondents are asked about the views of others. Part of this lack of precision is probably due to the desire among respondents to indicate agreement between the opinions of third parties and the ultimate decisions of the district. As mentioned in chapter four, this is a potential problem which plagues survey data in general. It is important to be mindful of it.
Therefore, the multivariate analyses in subsequent chapters will continue to focus primarily upon the model which includes third party variables. The results of multivariate regressions in the absence of third party variables will be provided and discussed briefly, but are included primarily for the interest of the reader.
27. See Appendix D, Question 24. CHAPTER VI
EDUCATION FINANCE LITIGATION IN ARIZONA
The political and legal context within which the education finance lawsuit in Arizona found its genesis shared a number of characteristics with the Alabama litigation described in chapter five. The Arizona suit began when frustration developed among a number of property poor school districts concerning continued disparity in education spending. During the 1980s and early 1990s, the legislative and executive branches of state government had done little to reform a relatively weak education system in general or the system of school finance in particular. Eventually, local districts would turn to the state courts for relief. But the prospect of successful litigation was hampered by a single, but very significant, legal barrier.
Though similar in outline to Alabama’s litigation, the Arizona suit occurred in a context of greater spending disparities and a political environment that was at least as uncooperative, if not more so. In addition, the Arizona suit faced what was perhaps a more serious legal impediment.
137 138
EDUCATION IN ARIZONA
Arizona epitomizes the independent, generally conservative, anti-government nature of
the American west. The political and cultural evolution of Arizona produced a population that
does
...not depend much on government. Instead it was a polity based on something like the opposite of New Deal principles, with a minimalist government and precious little regulation of business. (Barone and Ujifusa, 1992, p. 36)
This approach to government has produced state tax rates and expenditures per capita that are
well below the national average.
This preference for minimalist government has had an adverse affect on education in
the state. Arizona spends less per capita on elementary and secondary schools than any other
state in the country (Wirt and Gove, 1990)1. This level of spending has produced a system
of education which ranks below the national average in most comparative education statistics.
For example, the state spends $4057.00 per pupil ($700 below the national average) and
$30,773.00 on teacher’s salaries ($2,204.00 below the national average) (The World
Almanac. 1993).
State and local governments provide roughly equal shares of the burden of education
finance in Arizona. Localities contribute 50.2% of education revenue while the state’s share
is 45.1% (Calkins, 1990). The local contribution is 6% above the national average and places
Arizona 20th in the country. As discussed in chapter five, this relatively large percentage of education spending contributed by local governments creates a context in which wide inter district disparities in education spending exist. This is the case in Arizona. Total spending
1. While this statistic gives a rough sense of public commitment to education, it is important to note that school-aged children make up a somewhat smaller proportion of the population than found in most states. This is due largely to an influx of affluent retirees to the state. Spending per capita on education will perhaps be affected by these demographic characteristics. 139
per pupil in the state ranges from a low of $1,843 to a high of $18,628 (Arizona Department
of Education, 1992). More generally, "high spending" districts disperse roughly twice as
much per pupil as do "low spending" districts. There are only nine state in the country where
disparities between high and low spending districts are greater than those found in Arizona
(Educational Testing Service, 1991)2.
In Arizona (and other states as well) it is ironic that school districts that are often
separated by only a few miles geographically are distinguished by thousands of dollars in the
amount of money they spend on education. For example, Continental Elementary District
#39, located near Tucson in the southeastern part of the state, spends about $9,355 per
student. Located 40 miles away is Fort Huachuca Accommodation District, which spends
$3,279 (more on these particular districts below). This characteristic of property tax-based
school finance is even more paradoxical where school districts which are side-by-side spend
vastly different amounts. This situation leaves educators in relatively low spending districts
discouraged and disillusioned. "The fact that several of our neighboring school districts have
excellent modern facilities and buildings while ours are sub-standard and outdated..."(AZ-1)
In effect, Arizona has a choice system with some 11,000 students crossing district boundaries. We are the poorest of 3 area schools which have from 1.5 to 3 times as much money per pupil to spend. Therefore, we are continually at a disadvantage to the point that other districts can attract our students from us. (AZ-2)
For the purposes of this research, the primary question is whether these disparities can be traced to inequities in property values. Unfortunately, there have been no comprehensive,
independent studies of education spending disparity in Arizona and the reasons for its existence. What is known is that localities in Arizona, as in most other states, are forced to depend upon taxes on property for a substantial share of locally raised revenue. It is also a
2. The Educational Testing Service defined "wealthy" districts as those in the top 5% in the state in spending per pupil and "poor" districts as those in the bottom 5%. 140
fact that, according to statistics provided by the Arizona Department of Education (1991),
there are tremendous disparities in the value of property across school districts. The average
value of property per pupil is $119,080. The standard deviation is 163,427, which indicates a
good deal of diversity in property values.
Do property values affect spending levels? Property values per pupil in Arizona
range from a high of $864,070 for Continental Elementary District #39 (which spends a total
of $9,355 per pupil) to a low of $1,409 in neighboring Fort Huachuca Accommodation
District (which spends $3,279). More generally, the average spending per pupil in the state
was $5,675 in 1990-91. However, there were 23 districts which spent in excess of $7,000
per student. The average property value in these districts was $221,969 per pupil. On the
other hand, there were 29 districts which spent less than $4,000. These districts had an
average property value of $51,909. The overall correlation between property value per pupil
and spending per pupil across school districts in Arizona is .4853.
In analyzing education spending in Alabama, it was noted that differences in property values alone failed to explain the existence of disparities. The PARCA report indicated that low spending districts often had relatively low tax efforts. However, a review of statistics provided by the Arizona Department of Education show that, on average, property poor districts in the state have higher tax rates. The overall correlation between property value per pupil and tax effort is -. 168.
In order to illustrate the difference between high- and low-spending districts on the issue of tax rates, districts were divided into four quartiles based upon their property tax rates. Among the 41 school districts with the highest property tax rates in the state, 27 (66%)
3. A study produced by the Arizona Center for Law in the Public Interest (which serves as legal counsel for the plaintiffs in the Arizona lawsuit) argues that inequity in property values is the primary reason for disparity. 141
have spending levels below the state average ($5,677)4. It is difficult, then, to make the
argument that the primary reason that disparities exist is a lack of tax effort among low
spending districts.
This school district has been willing to "tax" to support the school program at an acceptable level to be somewhat commensurate with other districts that have a more favorable financial condition. This has created a very high tax rate. (AZ-3)
Districts with low property values must enact tax rates which are higher than those in
property wealthy districts in order to raise the same level of revenue.
Equity in school finance is a problem of a district’s ability to raise funds for needed educational programs, buildings and equipment. A $1.00 increase in my district’s tax rate raises $19,000...a $1.00 increase in...(District X’s)...tax rate raises $14,911,131. Arizona’s state equalization system does not distribute the wealth equally. The small rural districts are often neglected when it comes to financing. (AZ-4)
The 1914 high school building, for example, would take a minimum of 11 million to replace. Bonding capacity is 6.2 million. Passed a renovation bond for 4.3 million. The tax rate to pay back over IS years is higher than...(the rate in District Y that would be necessary)...to pay back a 100 million bond in 15 years.(AZ-5)
However, the bias for minimalist government constrains the ability of poorer districts to do
so. Arizona, like a number of states, limits local property tax rates. Part of the reason for
such restrictions "...is rooted in a desire to restrain the growth of the public
sector...(and)...there are indications that limitations on local property tax levies have probably
been effective in Arizona." (Aronson and Hilley, 1986, p. 227)
A number of property poor districts made attempts during the 1980s to lobby the state
government for changes in the method of education finance. The state, however, was
apparently not swept up by the education reform movement underway in a number of other
states. Frustration developed as lobbying efforts persisted, but no major changes in the
Arizona system of education occurred between 1985 and 1990 (Augenblick et al., 1990).
4. The number 41 corresponds to 25% of districts for which relevant data are available. 142
A statistic that is perhaps most indicative of the lack of movement in Arizona on the
issue of education finance is the state share of the financial burden. The argument is that it is
not only the source of education revenue that is important, but also the level of government
which collects it (see chapter five). Dependence upon local sources increases the likelihood
that disparities will exist. Therefore, it seems reasonable that a primary component of any
strategy for decreasing disparities would be to increase the state government’s proportion of
the education finance burden. However, between the 1982-83 and 1988-89 school years, the
state government’s share of the provision of education funds in Arizona actually dropped
6.8%. Only four states had larger decreases, while a majority of states saw their share of
education finance go up, often dramatically. Opposition to increases in taxes and expenditures
reduced the likelihood that reform would emanate from state government. "Under the guise
of ’no new taxes’ or ’less taxes’, the state [of Arizona] is gradually shifting the burden...for
funding education to the local level." (AZ-6)
THE COMMENCEMENT OF THE ARIZONA LAWSUIT
In 1989, the superintendent of Pinal County, Ms. Sherry Ferguson, began to organize an effort to gain more state funds for poor, rural school districts. Rural districts were disadvantaged because, as one superintendent put it,
As a small, rural district we feel our children are not able to receive the same level of quality of education as suburban schools. We have no industry to support our assessed valuation and local tax payers are overburdened. (AZ-7)
At approximately the same time, the Arizona Center for Law in the Public Interest was doing research on the topic of school finance. Analysis of the state’s education finance system revealed that the problem of disparity created by poor funding in some areas was not 143
simply a rural phenomenon. It was a problem that affected a number of urban school districts
as well, particularly in Phoenix (the state’s capital and largest metropolitan area). The Center
eventually joined forces with a few rural superintendents, led by Ms. Ferguson.
As in Alabama, there was a good deal of pessimism about the possibility that the
political branches of state government would reform the financing system. Hopes of a
political solution did rise briefly in 1991. Governor Fife Symington formed an education task
force to consider a number of proposals for altering education in the state. This task force
included a subcommittee on school finance. However, the primary issue the task force
addressed was open enrollment'. This issue quickly became the most politically volatile and
seemed to overwhelm all other education reform proposals.
The decision was made by the Arizona Center, in consultation with a number of superintendents, to bring a lawsuit against the state. However, the Arizona Center is a non profit organization. In order to finance the litigation, the instigators of the suit solicited financial support from each of the state’s 220 school districts. A letter was sent to every school district in the state, announcing the intent to bring the suit and asking for financial support6. An inter-governmental agreement was signed in early 1991 by 50 school districts, allowing them to use school funds for the purpose of financing the litigation.
As in other states, the suit alleged violations of the state constitution’s equal protection clause (which is analogous to the 14th Amendment of the U.S. Constitution) and the education
5. This plan would have allowed elementary and secondary students to enroll in the school of their choice.
6. The Arizona system has superintendents in charge of school systems for each of the state’s 15 counties. In addition, there are chief administrators (usually superintendents) in charge of each individual school district. The letters were sent to administrators in charge of the individual districts. The county superintendents were not contacted. This pattern was followed in the collection of data for this research. 144
clause, which reads: "The Legislature shall enact such laws as shall provide for the
establishment and maintenance of a general and uniform public school system". Unlike other
states, however, the claims in the Arizona suit were based specifically upon the finance
system for capital (i.e. construction) expenditures, rather than maintenance and operations.
This was a strategic move, based in part on examinations of previous lawsuits in other states.
This lawsuit is a facilities-based lawsuit only. And it does not concern maintenance and operating costs at all, at least from a legal standpoint. So...we early on decided that the way to tackle this problem was to tackle the part that we could vividly demonstrate factually...it seemed to us that one of the problems in some of the other states was that when you get bogged down in maintenance and operating costs, you inevitably get involved in curriculum questions and things like that...we think we can demonstrate that the system is destructive based on capital financing, because if it’s destructive based on capital financing, it’s our theory that it’s a short step to saying it’s destructive with regard to (maintenance and operations).
There was, however, a significant legal obstacle which stood between the plaintiffs and a
favorable verdict. In 1973,
A civil action was filed by the Law Reform Unit of the Maricopa County Legal Aid Society, seeking injunctive and declaratory relief against alleged discrimination claimed to be in violation of the Equal Protection Clause of the Arizona and United States Constitutions. Plaintiffs consist of two groups; students attending school in Roosevelt School District and taxpayers in that district. Plaintiffs claimed that the system of financing public schools in Arizona is discriminatory because of the disparity of wealth in school districts; that this disparity results in inequality in education for the students, and an unequal burden on taxpayers in the poorer districts (Shofstall v. Hollins, p. 591).
In 1973, a state trial court issued a decision in favor of the plaintiffs, stating that the financing
system discriminated against taxpayers in poor districts. However, the court also declared that students in poor districts did not suffer injury from the system.
Between the time of the trial court’s decision and the appeal to (and subsequent decision of) the Arizona supreme court, the U.S. Supreme Court decided San Antonio
Independent School District v. Rodriguez. In Rodriguez, the Court found that systems of education finance based on property taxes do not violate the equal protection clause of the 145
14th Amendment, even when such systems create spending disparities (for details on
Rodriguez, see chapter two).
On November 2, 1973, Arizona’s supreme court, relying heavily on Rodriguez, held
that the system of finance did not violate the state constitution. The court said that neither the
rights of the taxpayers nor the rights of the students had been violated. "A school financing
system which has a rational and reasonable basis and which meets the educational mandate of
our constitution should...be upheld." (Shofstall. pp. 592-593)
Faced with this adverse precedent, the Arizona Center for Law in the Public Interest, along with a few superintendents, proceeded with plans to file a lawsuit. The suit was filed on May 21, 19917. The plaintiffs requested a summary judgement from the trial court. The defendants filed a counter motion that the suit be dismissed for lack of a justiciable claim'.
Oral arguments began on August 28, 1992 in Superior Court of Arizona for Maricopa
County. On September 18, 1992 Judge Stanley Z. Goodfarb, relying primarily upon Shofstall and Rodriguez, denied the plaintiffs’ motion for summary judgement and granted the defendants’ motion for dismissal9. The coalition appealed directly to the Arizona state supreme court, which agreed to hear the case. As of June 1, 1993, oral arguments had not been scheduled.
7. Only a limited number of the districts involved in the inter-governmental agreement were named as plaintiffs in the complaint.
8. The defendants in the case are the state of Arizona, the superintendent of public instruction (C. Diane Bishop) and the state board of education. The trial judge granted an earlier motion to dismiss the governor and state legislature as defendants.
9. A second case decided by the Arizona supreme court, Carpio v. Tucson High School District (1974), was also important. In this case, the state supreme court held that financially deprived minority high school students did not have a constitutional right to free textbooks. 146
BIVARIATE ANALYSIS
When the suit was initially filed, 50 of Arizona’s 220 school districts (22%) were
members of the coalition that entered into the inter-governmental agreement designed to
sponsor the litigation. Surveys were sent to a sample of 174 of the state’s districts. In order
to maintain equivalence to the universe of cases, 38 of the districts selected for survey
purposes (22%) were members of the coalition (hereinafter also referred to as "plaintiffs").
These 38 were randomly selected from the original 50 members. The other 136 districts in
the sample were randomly selected from the 170 non-members (hereinafter also referred to as
non-plaintiffs). Of the random sample of 38 members of the coalition, 21 (55.2%) responded to the survey. Seventy-one (52.2%) of the non-members who were contacted responded.
Overall, the response rate was 52.9%10.
Step One: Recognition of Injury
There seems to be little disagreement between members of the coalition and non members on the issue of the importance of inter-district financial equity to equality in education across the state. Eighty-six percent of members and 75% of non-members believe that such equity is "important" or "very important". Since inequities in spending do exist, most districts in Arizona apparently believe that an injury has occurred. There were exceptions.
We did not feel that the plaintiffs had sufficient reason to sue. Know(ing) their reputation and past dealings we felt we did not want to drag our district through something that would
10. In addition, there were six districts which sent letters indicating their reiusal to participate in the survey. As in Alabama, survey response was partially related to financial status (as defined by property value per pupil). Property-poor school districts were slightly more likely to respond than were more well-to-do districts. The correlation between financial status and response was .138. 147
probably prove nothing. We felt it to be more of a personal thing than a crucial issue. (AZ- 8)"
Step Two; Attribution of Blame
Contrary to expectations, districts that are not members of the coalition were more
likely than members to place primary blame for inequity on state government. When asked
where the blame for inequity should be placed, 49% of non-plaintiffs said the state. Only
38% of plaintiffs felt this way. A plurality of plaintiffs (43%) blamed the state and low-
spending districts evenly. The expectation that plaintiffs would be more likely to blame the
state is clearly not met, although the differences are not large.
Districts that placed blame evenly were then asked if they could specify which actor was "more" responsible. Eighty-six percent of both non-plaintiffs and plaintiffs in this group blamed the state. Overall, then, a substantial majority of both plaintiff and non-plaintiff districts in Arizona felt the state was most to blame for inequities resulting from that system.
This outcome is not unexpected. Research conducted by the Arizona Center for Law in the
Public Interest placed blame primarily upon disparities in property values. By extension, the state, which constructed a system of finance based upon property taxes, can reasonably be blamed for inequity. On the other hand, examination of data from the Arizona Department of
Education indicates that, in most instances, districts where spending per pupil was low had relatively high tax efforts. It is therefore reasonable to suspect that it is difficult for
Arizonans to blame low-spending districts for inequity, since the tax effort in many of those districts is relatively high.
11. It is worth noting that a fair number of non-plaintiffs expressed concern about the integrity and competence of the coalition and its leadership. 148
Step Three: Acknowledgement of Court Relevance
It seems that in the evolution of litigation, neither the first step (recognition of an injury) nor the second (the placement of blame) distinguishes plaintiffs and non-plaintiffs in
Arizona. This distinction is evident, however, on the question of court involvement into the dispute. Plaintiffs were twice as likely as non-plaintiffs to argue that litigation represented
\ "...the most appropriate and effective method for reducing these differences (in spending per pupil)." On the other hand, 63% of non-plaintiffs argued that lobbying was the best alternative, agreeing with the argument that "The coalition effort had the prospects of being divisive. Our position is to seek change through consensus and the legislative process." (AZ-
9) Only 30% of plaintiffs felt this way. These results conform with what was anticipated: plaintiffs are more likely to favor litigation to achieve equity.
However, as discussed in chapter five, the preference for litigation over lobbying in terms of propriety is not necessarily an endorsement of judicial intervention. It remains to be seen whether plaintiff districts are more receptive than non-plaintiffs to the idea of judicial involvement in education finance. Table 13 indicates the level of acceptance of judicial intervention among all districts across a variety of areas related to education. 149
TABLE 13
ATTITUDES IN ARIZONA ABOUT THE PREFERRED LEVEL OF JUDICIAL INVOLVEMENT IN DISPUTES IN PARTICULAR AREAS OF ELEMENTARY AND SECONDARY EDUCATION (Percentage of all districts with particular preferences)
Always/ Rarely/ Generally Sometimes Never
Codes of conduct 3% 27% 70% Disciplinary practices 6% 42% 52% Religious practices 9% 40% 51%
Equal opportunities for women students 8% 54% 38% Employment practices 3% 60% 37% Racial integration 20% 55% 25% Education finance 21% 60% m Services for handicapped students 20% 61% 19%
N=89
Arizona school officials, like their cohorts in Alabama, appear to make distinctions between disputes concerning day-to-day activities and those related to the rights and privileges of particular groups. Districts tend to be more hostile to judicial intervention into disputes over codes of conduct, disciplinary actions and religious practices. However, majorities seem to assent to at least some judicial involvement when specific demographic groups are adversely affected by particular policies13. This is particularly true for racial minorities, handicapped
12. The argument that these issue areas are linked by the concept of the rights and privileges of particular groups is quite reasonable for equal opportunities for women students, racial integration, education finance and services for handicapped students. The connection with employment practices is somewhat tenuous, but there is little doubt that disagreements over employment are often related to the role of race and gender in hiring practices. 150
students and children in low spending school districts. The distinctions between plaintiffs and
non-plaintiffs on these issues are found in table 14.
TABLE 14
PERCENTAGE OF PLAINTIFF AND NON-PLAINTIFF DISTRICTS IN ARIZONA THAT BELIEVE THE JUDICIARY SHOULD "RARELY OR NEVER" BE INVOLVED IN DISPUTES IN AREAS OF EDUCATION
Plaintiff NoPiPlaintiff
Codes of conduct 81% 66% Disciplinary practices 52% 53% Religious practices 48% 52% Equal opportunities for female students 43% 37% Employment practices 43% 35% Racial integration 29% 24% Services for handicapped students 24% 18% Education finance 14% 21%
N =89
The table indicates that there is not a great deal of difference between plaintiffs and non plaintiffs on any issue except codes of conduct. Plaintiffs are slightly less hostile to judicial intervention into education finance disputes, but not significantly so.
Consideration of Costs
In 1991, the primary justification for the construction of the intergovernmental agreement among 50 Arizona districts was the need to provide financial support for the education finance litigation. In order to enter into the agreement, each district was required 151
to contribute $450.00 plus 25 cents per student. This resulted in membership "dues" of up to
$1,000.00. This initial investment proved to be too high for some.
The governing board was very interested in the litigation, but the district was in no position to commit any fiscal resources to the coalition. Our district experienced a decline in budget capacity for the 1992-93 fiscal year, and we saw that coming at the time we considered joining the coalition. (AZ-10)
There was also a level of uncertainty involved because the monetary commitment of each
district (after the initial investment) was contingent upon the duration and subsequent cost of
the suit. The commitment was therefore necessarily open-ended. This also discouraged some
districts from becoming members.
The primary reason for not joining was the indefinite financial commitment. There was an open ended clause that "if costs exceed..." This flag caused me to say "oops, here is another open door for attorneys". (AZ-11)
Overall, however, relatively few districts expressed concern about the monetary commitment.
Only 11 % of non-plaintiffs and 5% of plaintiffs were willing to use the term "substantial" in
describing the monetary burden of membership in the coalition. Equally small numbers
referred to the time commitment in this fashion13.
Unlike the case in Alabama, however, there were several school districts that expressed concern about another potential cost: damage to relations with the state. Twenty- four percent of plaintiffs and 20% of non-plaintiffs felt that joining the coalition would
"moderately" or "severely" damage the relationship between the district and state government.
It is interesting that nearly one-quarter of those who became members seemed to have resigned themselves to the fact that the state would be offended by the action. Why is this the case? As described earlier, most members of the coalition think that the alternative for solving the problem of inequity (lobbying) is not a realistic approach. Members of the
13. A large number of non-plaintiffs did not know the level of time and monetary commitment involved in coalition membership. 152
coalition may fear retribution, but think that in the current political context, there is little
choice. However, 80% of plaintiffs that feared retaliation stated that lobbying was more
appropriate than litigation. This result indicates that a number of plaintiffs thought lobbying
was the most appropriate course of action, feared retaliation from state government for joining
the litigation effort, but still supported the lawsuit. Perhaps this represented an attempt by
some plaintiffs to force a legislative solution to preempt a court decision. For these districts,
litigation is appropriate only to the extent that it induces legislative action prior to a verdict.
When queried, most districts (plaintiffs and non-plaintiffs) believed that damage to this
relationship would result in "less cooperation from state education agencies" and "less
leverage for the district in general relations with state government".
Consideration of Benefits
The consideration of benefits accrued from supporting the Arizona lawsuit is complex.
As in Alabama, the underlying logic seems to be
The difference in spending is only an issue because of the difference in the Districts’ ability to raise money. The District’s ability to raise funds is based upon the dollar amount of their assessed value or the amount of assessed value behind each student. If your District has a high assessed value per student, you would noj want to join this lawsuit. If you were a property owner with a low tax rate in a high assessed value District, you would not want this lawsuit to succeed. However, if you are a poor district with a low assessed value and a high tax rate, you would want to join the lawsuit and would hope it would succeed. (AZ-12)
Is this true? Districts were split into four quartiles based upon their value of property per pupil. The results are in table 15. 153
TABLE 15
PERCENTAGE OF DISTRICTS WITHIN EACH QUARTILE (BASED ON VALUE OF PROPERTY PER PUPIL) THAT BECAME PLAINTIFFS IN ARIZONA
District Status* Became plaintiffs
First quartile 9.8%
Second quartile 26.8%
Third quartile 22.0%
Fourth quartile 31.0%
N = 165
* The first quartile represents the districts that are in the highest 25% of districts in terms of property value per pupil.
It should be recalled that approximately 22% of the districts in Arizona decided to join the intergovernmental agreement to finance the litigation. The table indicates that there is a weak relationship between this decision and the financial status of a district beyond the first quartile
(Tau-B=.144). Simply put, districts in the first quartile seem to feel that "Since our district is a high spending district, we did not anticipate a local benefit." (AZ-13) There is a roughly even split among the other 75% of the districts when it comes to participating in the litigation.
It seems that there are a number of districts whose financial status (based on property values) is relatively good, but choose to join the litigation to alter the current financing system. Why? An interesting pattern develops when this objective measure of financial status
(property value per pupil) is compared with a subjective measure of the same principle. The results are in Table 16. 154
TABLE 16
RELATIONSHIP BETWEEN OBJECTIVE (VALUE OF PROPERTY PER PUPIL) AND SUBJECTIVE MEASURES OF FINANCIAL STATUS IN ARIZONA
Percentage of districts in each category that defined their financial Property value per pupil* status as "below average" or "poor"
First quartile 16.7%
Second quartile 45.0%
Third quartile 56.0%
Fourth quartile 52.0%
N =88
* The first quartile represents the districts that are in the highest 25% of districts in terms of property value per pupil.
Beyond the first quartile (i.e. districts in the top 25% in the state in property value per pupil), school districts often label their own financial status as "below average" or "poor". In particular, the second quartile contains districts whose property values per pupil range from
$75,425 to $129,712 (the state average is $119,079). Therefore, it reasonable to state that districts in the second quartile have property values which are at least "average". Yet 45% of the districts in this category consider their financial status to be below average or poor.
Therefore, one reason why property value per pupil seems to have only a weak relationship with the decision to litigate is because a number of districts with property values at or above the state average often perceive their financial status as relatively weak. Such perceptions may lead these districts to think that their financial status will improve, perhaps dramatically, under a more equitable system of finance. 155
Another explanation is that districts which rank between 42nd and 84th (the second
quartile in the sample of 165) in terms of property value per pupil simply desire greater
equity with those districts which rank between 1st and 41st (the first quartile). Districts in the
first quartile spend an average of $7,065 per pupil while districts in the second quartile spend
$5,890. It may be, then, that districts in the second quartile simply value equity and join the
coalition in order to close this $1,200 gap14.
What is the relationship between the decision to join the coalition and a subjective
measure of financial status?
TABLE 17
RELATIONSHIP BETWEEN SUBJECTIVE EVALUATIONS OF FINANCIAL STATUS AND THE DECISION TO BECOME A PLAINTIFF IN ARIZONA
Evaluation of status Plaintiff Non-Plaintiff
Very good 0% 100%
Above average 8% 92%
Average 25% 75%
Below average 31% 69%
Poor 31% 69%
N=91
14. These statistics also lend further credence to the argument that spending per pupil is directly related to property values. 156
The relationship between financial status and the decision to join the litigation is somewhat
stronger when the definition of financial status is subjective (Tau-B = .191).
Efficacy
Joining the coalition to achieve a more equitable system of finance assumes that such
a system will be produced by the litigation (see chapter five). There is little optimism that the
executive and legislative branches of Arizona government will produce a more equitable
system without a court mandate. The coalition does not
...think there is any real expectation that the governor and the legislature are going to do anywhere near what we think is legally required and its our expectation that we’ll pursue the case as far as we need to pursue it.
The general expectation seems to be that finance reform will be achieved only through
a court decision. As expected, plaintiffs tended to be very optimistic about the chances for
success in court. Sixty-two percent of the members of the coalition felt that the chances of
success were good. On the other hand, only 16% of non-plaintiffs felt this way.
Plaintiff perceptions about the chances for success came largely from studies of the
Arizona system of finance and attorney auvice15. Only the advice of attorneys played a
similar role for non-plaintiffs who considered the chances for plaintiff success in making their decision about whether to join the coalition.
On the subject of efficacy, two points are worth considering. First, only 9% of all districts considered past decisions of the Arizona courts when forming opinions about the suit’s likely success. This is interesting, given that the Arizona supreme court directly established the finance system’s credibility under the state’s constitution in 1973. Is it that
15. The study produced by the Arizona Center for Law in the Public Interest had been widely circulated. 157
decision makers in the district were largely unaware of Shofstall v. Hollins? Such a result
would be understandable among the general public. It is not unusual for recent court
decisions, much less those which are 20 years old, to go unnoticed. This is particularly true
for courts below the level of the U.S. Supreme Court. On the other hand, one would imagine
that professional educators and administrators, as well as elected school officials, would be
more aware of Shofstall because of its subject matter and apparent direct relevance. It may be
that Shofstall was salient among these decision makers, but they simply doubted the relevance
of a 1973 case to a 1992 lawsuit. The trial court decision in the 1992 suit shows that this
expectation, if it indeed exists, is incorrect.
Second, there was almost no reliance on relevant cases from other state courts. Only
one-quarter of all districts listed any other state court case as relevant to the formation of perceptions about the chances for success in Arizona (nearly all of those who acknowledged the relevance of a case from a sister state mentioned Texas). This is quite a surprise.
Because of the recency of the cases and the geographic proximity of Texas, one would have surmised that the cases would have been conspicuous, at least among educators.
Again, an alternative explanation is that the cases were salient, but not deemed to be relevant to the question. It is worth noting that leaders and legal strategists in the coalition have considerable doubts of their own about the pertinence of cases from other states. This is based on two considerations. First, the decision to limit the Arizona suit to capital investment distinguishes it from most previous cases. Second, there is the perception, at least among those associated with the coalition, that the nature of the Arizona supreme court reduces the utility of precedents from other states. The court is seen as a pretty free-thinking, independent thinking court...and your case is going to rise and fall on its own merits...what gets a court to start looking, it seems to me, at other states is when you’ve persuaded them that something’s wrong. 158
A positive court verdict does not guarantee the attainment of desired results.
Therefore, an important concern is the extent to which a judicial decision favoring the
plaintiffs will result in changes in the financing system and what those changes are likely to
be. It seems that non-plaintiffs were more likely to think (or perhaps fear) that if the court
struck down the current system, "substantial" changes in the finance structure would occur.
Twenty-four percent of non-plaintiffs felt this way. An additional 42% predicted that there
would be at least "moderate" changes. Only 14% of plaintiffs said that changes would be
substantial while another 57% thought that moderate changes would occur. Only a minority
of districts seem to believe "Even if the coalition was successful, the legislature (and the)
department of education have ways to interpret rulings and very little change would take
place." (AZ-14)
Who would be the beneficiaries of these changes? A majority of both plaintiffs (62%)
and non-plaintiffs (58%) felt that "all school districts where spending per pupil is below the
state average" would benefit most. Less than 10% of each group felt that benefits would be
spread throughout the state. It was discovered in chapter five that wealthy Alabama districts
were more likely to think that poor districts would benefit. Relatively poor districts were
much more optimistic that benefits would be spread throughout the state. Are wealthy
districts in Arizona more likely to think that poor districts will benefit disproportionately from
a new, more equitable system? The answer is no. Perceptions about whether only poor
districts will benefit are not related to district financial status, based upon either subjective or objective measures16. There may simply be a general consensus that relatively poor will benefit most from greater equity. This expectation is certainly not without merit.
16. The correlations between the perception that the poor would benefit and property value (.078) and subjective definition of financial status (.043) were very low. 159
The logical extension of this prediction is that poorer districts would be more likely to
think that their own financial status would improve. The relationship between the subjective
measure of current financial status and the prediction about future financial status is found in
table 18.
TABLE 18
PERCENTAGE OF DISTRICTS IN ARIZONA WITHIN EACH GROUP THAT PREDICT THAT THEIR FINANCIAL STATUS WILL IMPROVE UNDER A MORE EQUITABLE SYSTEM
Evaluation of status* % of Districts
Very Good 28.6%
Above Average 30.8%
Average 34.4%
Below Average 65.3%
Poor 38.5%
N=89
Districts which claim that their financial status is "below average" are substantially more optimistic than any other group that their financial status will improve. Meanwhile, self described "poor" districts are no more optimistic than any other district about the chances that their financial status will improve. This outcome makes little intuitive sense, particularly given that nearly 70% of the districts in the poor category, when asked, think that poor districts will benefit most. 160
The question of who will benefit also marks a distinction between plaintiffs and non
plaintiffs. Sixty-six percent of plaintiffs were optimistic that their financial condition would
improve. Only 35% of non-plaintiffs felt this way.
Most districts in the state think that poor schools will benefit disproportionately from
a more equitable system. Most districts also think that relatively wealthy districts will pay the
bill for these improvements. Using terms such as "Robin Hood" and "recapture", 71% of
plaintiffs and 55% of non-plaintiffs agree with the statement that a court decision favoring the
plaintiffs "...will lead to a shifting of funds from some school districts to others". There is,
however, no apparent relationship between financial status and this prediction. Wealthy
districts do not seem to anticipate (or fear) such shifts any more than other districts17.
As in the last chapter, it is interesting to consider the problem of the free-rider.
Those associated with the coalition in Arizona expressed some concern that a number of
districts were anticipating a benefit from a more equitable system, but were willing to allow
others to pay the costs of the litigation. In chapter five, it was argued that in order to be
considered a true free-rider, a district must: 1) think that the current finance system is
injurious and 2) blame the state for the injury and 3) think that judicial intervention into the
dispute is appropriate and 4) predict that their own financial status will improve under a more
equitable system, 5) not become a member of the coalition of plaintiffs. How many
plaintiffs met these criteria? Twenty-five non-plaintiffs in the sample (35%) felt that their
financial status would improve under a more equitable system. Of those, 19 met the
established definition of a true free-rider. In other words, 27% of all non-plaintiffs could be
considered free-riders. This is further verified by the fact that none of these districts felt that
17. In fact, it appears that relatively wealthy districts are a little less certain about this prospect than poorer districts, but the difference is marginal. 161 membership in the coalition mattered in terms of involvement in the design of a new system or attaining benefits from it. As in Alabama, there is a free-rider problem for the coalition pursuing finance litigation in Arizona.
Third Parties
The analysis of third party influence begins with a determination of the percentage of districts that had third parties with opinions on the matter of joining the litigation. The results are in table 19.
TABLE 19
PERCENTAGE OF DISTRICTS IN ARIZONA THAT REPORTED THAT EACH THIRD PARTY HAD AN OPINION ABOUT DISTRICT INVOLVEMENT IN THE LITIGATION*
Third Party Plaintiff Non-Plaintiff
School administrators 91% 66% Local government officials 43% 38% Teachers 43% 22% State legislators 29% 33% General public 20% 24% Parents 19% 11% Interest organizations 14% 0% School district attorney 13% 25% Business/civic leaders 10% 16%
N=91 (for all third parties except school district attorneys, where N=64)
* The table represents the number of respondents who, in reference to each particular third party, answered that the party a) favored, b) was evenly divided or c) opposed joining the Coalition. 162
Unlike Alabama, where large percentages of third parties in plaintiff districts held opinions,
only school administrators had opinions in a majority of plaintiff districts in Arizona. Non-
plaintiff districts in Arizona exhibit the same low levels of opinion found in Alabama.
The relatively high level of opinion among school administrators may again be based
upon the notions of information and access discussed in chapter five. Administrators may
tend to have more information about what is occurring in education across the state and within
the district. These individuals may therefore be more likely to know about the litigation and
the request made to their district for financial support. In addition, administrators probably
maintain close relationships with district decision makers, increasing the likelihood that their
opinions would be known. It is important to be mindful that table 19 only indicates the
awareness of decision makers about the opinions of particular third parties, not whether the
opinions actually existed.
Why are third party opinions relatively less abundant in Arizona. It was discussed in
chapter five that perhaps third party opinions were most likely to occur in districts where
there is heightened discussion (and therefore controversy) about the issue of joining the
litigation. It may simply be that there is little controversy about the decision in most districts
in Arizona. This reduces the likelihood that third parties will form opinions. It is worth
noting that interest groups and attorneys, which are seemingly important in other instances of
political litigation, do not seem to be important in this case.
It has been argued that one third party which is particularly important to litigation decisions is a similarly situated actor. Potential litigants often turn for advice to those in
analogous circumstances. As mentioned above, each school district in Arizona was contacted about joining the coalition. Did they influence each other? 163
TABLE 20
PERCENTAGE OF ALL PLAINTIFFS AND NON-PLAINTIFFS IN ARIZONA THAT CONSIDERED THE DECISIONS OF OTHER SCHOOL DISTRICTS
Type of school district referred to Plaintiff Non-Plaintiff
Districts possessing similar spending levels 29% 19% Districts in same county 24% 25% Districts possessing students with similar demographic characteristics 19% 16% Districts in same region 5% 13% Districts in neighboring county 5% 12% Districts where decision makers in your district have personal contacts 5% 3% Districts with a reputation for educational leadership in the state 0% 6%
N =90
Overall, 55% of non-plaintiffs and 57% of plaintiffs referred to at least one other district as it made its decision about the litigation. As the table indicates, districts with similar financial status were the most important source. This makes sense, given the centrality of the issue.
Arizona districts also paid relatively high attention to other school districts in the county.
This too is reasonable, given the potentially elevated level of communication and interaction between administrators of districts in the same county. This produces working relationships which may then be used to gather information and advice on matters like involvement in the education finance lawsuit18.
18. Districts in the same county were much less influential in Alabama. 164
The final component of the analysis of third parties involves a study of the
correlations between third party opinion and district decisions. The notion is that high
correlations indicate some level of influence.
------TABLE 21
CORRELATION BETWEEN THIRD PARTY OPINION AND THE DECISION OF LOCAL SCHOOL DISTRICTS ON WHETHER TO BECOME A PLAINTIFF IN ARIZONA
School administrators .538 Teachers .453 Local government officials .395 Business/civic leaders .298 State legislators .238 General public .218 Parents .177 School district attorney .116
N =90
In general, the level of correlation between third party opinion and district decision making is
low. This is particularly true for third parties other than education professionals. In general,
then, it seems as if district decision makers are not particularly influenced by third parties in
their district.
The vast majority of disagreements between third parties and their districts occur
when third parties favor joining the coalition and the district decides against it. In fact, there
are only Iwq instances in the sample in which a third party opposed joining and the district
made the opposite decision. Table 22 shows the relationship between third party opinion in favor of joining the litigation and the district’s ultimate decision. 165
SBB TABLE 22
PERCENTAGE OF DISTRICTS IN ARIZONA THAT CHOSE NOT TO JOIN THE COALITION OUT OF ALL DISTRICTS REPORTING THAT EACH THIRD PARTY FAVORED JOINING THE COALITION
School district attorney 78% School administrators 50% Parents 50% Teachers 44% State legislators 40% Local government officials 36% Business/civic leaders 33% General public 25%
The table shows that, for example, when school district attorneys favor joining the coalition,
78% of the time the school district does not join. For the other third parties, at least one- quarter of the time they favor joining in districts that ultimately decide against it.
In general, two conclusions about third parties can be made. First, third parties generally do have opinions on the issue of joining the litigation in well less than half of the districts in the state. Second, when they do have opinions, those views often do not seem to carry much weight. Why is this the case? Perhaps it is that while third parties "have opinions", these opinions are not strongly held or ardently voiced. Each respondent was asked: "Were any individuals particularly vocal about the issue of joining the coalition?" The results of the responses to this question indicate that, in most instances, third parties were not particularly vocal. However, even in those cases where they were vocal, their influence did not rise accordingly.
Another explanation may be related to the entity who actually makes the decision of whether or not to join. As discussed in chapter one, school district decisions are generally 166
made by either the superintendent, the school board or both. It seems reasonable that third
parties in the electorate would have the most influence when elected officials (i.e. the school
board) make the decision of whether to join. Is third party opinion more influential when the
school board is involved in the decision? The answer is yes. For every third party,
disagreement with the district’s decision goes down considerably in instances where the school
board is involved in making the litigation decision for the district19.
The preceding bivariate analyses indicate that there are a number of forces which
separate plaintiff and non-plaintiff school districts in Arizona. Six forces appealed to be
relatively important: 1) beliefs about the relative propriety of litigation compared to lobbying,
2) perceptions of current financial status, 3) predictions about the chances for the success of
the litigation, 4) predictions about the extent of change in the financing structure resulting
from a court decision favoring the plaintiffs (contrary to expectations, however, non-plaintiffs
were more inclined to believe that "substantial" changes would occur), 5) predictions about
their own financial status under a more equitable system and 6) third parties and their
opinions.
MULTIVARIATE ANALYSIS
As in the last chapter, it is important to use multivariate analysis (probit) to get a
sense of the relative importance of the independent variables. Table 23 lists the
intercorrelations of the dependent and independent variables.
19. It should be noted, however, that with respect to some third parties under these conditions, the N is quite small. 167
TABLE 23
INTERCORRELATIONS AMONG THE DEPENDENT AND INDEPENDENT VARIABLES IN ARIZONA*
1 2 3 4 5 6 7 8 9 1010 11 12
2) .093 3) .058 .104 4) .223 .246 .100 5) .246 .145 .086 .225 6) .287 .222 -.101 .234 .303 7) .168 -.196 -.018 .148 -.204 -.054 8) .060 .068 -.026 .247 .072 -.160 .153 9) .353 .097 -.040 .175 .067 .218 .046 -.050 10) .018 .240 -.021 .158 .088 .365 -.143 -.134 .293 11) .282 .121 .000 .066 .112 .159 .176 .053 .088 .000 12) .564 .281 -.011 .368 .463 .131 -.038 .075 .353 .238 .332 13) .478 .180 .151 .293 .315 .505 .076 .209 .305 .012 .446 .508
* 1. dependent variable 2. is there an injury 3. who is blamed 4. is judicial intervention appropriate 5. current financial status 6. prediction about future financial status 7. time/monetary costs 8. prediction about effect on relations with state government 9. prediction about chances for plaintiff success 10. prediction about the extent of change in financing system from court decision favoring the plaintiffs 11. opinion of general public 12. opinion of local elites 13. opinion of education professionals
N=78
The results of the probit analysis are listed in table 24. 168
TABLE 24
RESULTS OF A PROBIT ANALYSIS OF THE MODEL OF THE DECISION MAKING OF SCHOOL DISTRICTS IN REFERENCE TO THE EDUCATION FINANCE LITIGATION IN ARIZONA
Standard Prob. VARIABLE b Error Chanee
CONSTANT -0.9586 1.4050 Is there an injury -0.2927 0.3693 -8.6% Who is blamed 0.3811 0.7642 11.0% Is judicial intervention appropriate -0.2188 0.5028 -6.7% Current financial status 0.0941 0.2437 2.8% Prediction about future financial status 0.1536 0.4507 4.6% Time/monetary costs 1.1259 0.7887 23.1%* Prediction about effect on relations with state government 0.0130 0.4697 0.2% Prediction about chances for plaintiff success 0.4691 0.5334 13.1% Prediction about the extent of change in financing system from court decision favoring the plaintiffs -0.4439 0.4178 -12.4% Opinion of general public -0.4430 0.6128 -12.4% Opinion of local elites 0.3576 0.3095 10.5% Opinion of education professionals 1.1281 0.4387 23.1%**
N = 78 Estimated R-squared = .496
** t-statistic significant at the .010 level * t-statistic significant at the .100 level
In the Arizona lawsuit, SO of 220 districts became members of the coalition. Without any information, one could predict 77.3 % of the cases correctly by simply assuming that every district would decide against signing the intergovernmental agreement. With the help of the model, one can predict 87.1 % of the cases correctly. This is a reduction in error of 43.2%. 169
As the table indicates, two variables seem to overwhelm the others. First, the
opinions of education professionals are significant at the .01 level and yield a relatively high
change of 23.1 %. This influence makes sense for reasons already discussed in some detail.
First, these professionals are likely to be well-informed about the litigation and its
ramifications for education in the state and in the district. Second, they are likely to have
influence based upon their expertise on education issues more generally. Third, they are in a
position to make their views known to the district’s chief decision makers. These three
circumstances allow education professionals to develop informed opinions about the litigation
and make them known to decision makers.
It is also worth noting that, beyond their expertise, education professionals may have
heightened influence due to their positions as employees. Teachers and administrators have a great deal of influence over the day-to-day operations of school districts. School officials,
mindful of this, may be hesitant to ignore the advice of their employees, particularly on issues the employees may feel strongly about.
The opinions of the general public, however, have a relatively strong, yet negative, relationship to the decision to join the litigation. As noted in table 22, when the public favors joining the coalition, only 25% of the time does the district choose to do so. The general public appears more hospitable to judicial involvement than are education decision makers.
Why does the public have little influence? It was noted in chapter three that the public is generally uninterested in the decisions of the school districts. Public interest is stirred when decisions are made on issues which are considered to be relatively important and are well-publicized (i.e. "high-profile"). This increased attentiveness manifests itself in increased activity and influence on district decision making. It may be that the decision of whether to join the education finance litigation in the state is not a "high-profile" issue, which 170
decreases the likelihood that the general public will become interested and subsequently
influential.
As in Alabama, the variable associated with time and monetary costs performs
strongly and in the predicted direction (significant at .10). As expected, when predictions
about such costs go up, districts become less likely to join the litigation.
It was expected that those districts who felt the litigation would have a strong impact
would be more likely to become plaintiffs. This hypothesis based upon the belief that
individuals and groups only take actions that are predicted to yield some desired result.
However, the table seems to indicate that the opposite is true. Apparently, as the extent of
predicted alterations in the financing system increase, the likelihood of involvement in the
litigation actually goes down. Those districts which predict that the impact will be
"substantial" seem least likely to join the suit. Why? First, it may be that most districts
which predict that substantial changes in the system will result from a court decision favoring the plaintiffs have the most to lose if this occurs. As discussed, relatively wealthy districts
would seem the least likely to join the litigation, given that they will not benefit from a more
equitable system. These may be the same districts which are likely to predict that the courts,
if involved, will mandate substantial changes.
It may also be that, on average, school districts in Arizona desire changes in the system of finance, but fear the chaos that will result from court intervention. There may be a fear that changes to the system of finance will be too radical as the legislature and governor attempt to meet the requirements of court mandates. In fact, of the districts in the sample which predicted "moderate" changes to the finance system, 29% became plaintiffs. Of those that predicted substantial changes would take place, only 15% became plaintiffs. Finally, the generally conservative nature of the state may create a reluctance to take actions which have 171
the potential for inducing substantial change. In other words, "the desired result" of many
districts is a more equitable system, but not substantial change in the system of finance in
particular or the system of education in general.
The variable related to predictions about whether the plaintiffs would win in court
performs relatively well and in the predicted direction. Districts that predict the plaintiffs will
win are more likely to join the litigation. This may mean, however, that those most confident
of winning join the coalition, but also have confidence that changes resulting from the victory
will not overwhelm the system of education (i.e. moderate changes will occur).
A final important thing the table indicates is that, as in Alabama, current financial
status plays a negligible role. The table shows that this variable is among the weaker ones in
the model (change=2.8%). Given the perceived centrality of financial status, this outcome is
difficult to understand20. It seems that a district’s status under the current system does not
have an impact upon its decision to litigate.
20. It should be noted that operationalizing financial status based upon value of property per pupil and spending per pupil performed somewhat better, but not impressively so. 172
MULTIVARIATE ANALYSIS-PART II
TABLE 25
RESULTS OF A PROBIT ANALYSIS OF THE REVISED MODEL OF THE DECISION MAKING OF SCHOOL DISTRICTS IN REFERENCE TO THE EDUCATION FINANCE LITIGATION IN ARIZONA
Standard VARIABLE h Error I
CONSTANT -2.0260 1.0786 -1.8782 Is there an injury 0.0161 0.2750 0.0586 Who is blamed 0.2621 0.5610 0.4671 Is judicial intervention appropriate 0.1261 0.4071 0.3098 Current financial status 0.3029 0.1890 1.6022* Prediction about future financial status 0.5364 0.3129 1.7142** Time/monetary costs 1.3246 0.9388 1.4109* Prediction about effect on relations with state government 0.1633 0.3416 0.4782 Prediction about chances for plaintiff success 0.9028 0.3355 2.6907*** Prediction about the extent of change in financing system from court decision favoring the plaintiffs -0.5300 0.3465 -1.5297*
N=81 Estimated R-squared = .294
*** t-statistic significant at the .005 level ** t-statistic significant at the .050 level * t-statistic significant at the .100 level
When the third party variables are removed, five of the remaining variables achieve significance, all but one in the predicted direction. The variable with the greatest relative strength is chances for plaintiff success. The variables associated with financial status (both 173 present and predicted) and time/monetary costs also perform at a significant level and in the predicted direction. On the other hand, as in table 24 predictions about the extent of changes in the status quo continue to perform significantly, but in the direction opposite to that predicted. CHAPTER VII
EDUCATION FINANCE LITIGATION IN NEW HAMPSHIRE
The state of New Hampshire offers a unique political environment for the
development of education finance litigation. In the jargon of American political discourse, the
words "New Hampshire" and "low taxes" have become largely synonymous. The state has
developed a legendary reputation in American politics as the domain of the most anti-tax
citizenry in the United States.
The almost religious fervor with which the residents of New Hampshire oppose taxes
has inevitably etched its way firmly into the political psyche of the state. Perhaps the most
vivid example of the norm of opposition to taxes is that, for the last two decades, those who
run for state-wide office have been obliged to "take the pledge" to actively oppose any broad-
based tax. No one who has refused to make such a statement has been elected governor
(Barone and Ujifusa, 1992).
EDUCATION IN NEW HAMPSHIRE
Public policy in the state reflects these conservative, anti-tax sympathies.
Forty-four states employ an individual income tax; forty-five states use a general sales tax; and thirty-five states have both...only New Hampshire has neither..." (Aronson and Hilley, 1986, p. 102)'.
1. Most state revenues are raised through selective sales and corporate taxes.
174 175
Consequently, no state has a lower per capita tax burden (The World Almanac. 1992).
For the purposes of this research, the primary result of the state’s political culture is
that
The state legislature...resisted the temptation to pass a broad-based tax. That meant keeping education and welfare as local responsibilities, to hold down spending and to keep themselves accountable. (Barone and Ujifusa, 1992, p. 758)
Subsequently, the term that best describes the New Hampshire system of education is local.
Local governments contribute an astonishing 89.6% of the funds for elementary and
secondary education (the U.S. average is 44.3%). Based on this statistic, the New Hampshire
education system is by far the most localized (Calkins, 1990)2.
This very high reliance on local sources for education revenue creates a context in
which disparities in spending can develop. However, while New Hampshire suffers from
inequities in education spending, the gulf between rich and poor is not nearly as wide as one
might imagine. According to the Educational Testing Service (1991), high-spending districts
in the state spend a little over 1.5 times as much as do low-spending districts3. By this
measure, New Hampshire has the 24th largest disparity between high and low spending
districts in the U.S.
The critical question is whether these disparities in spending can be traced to
disparities in property values. New Hampshire’s aversion to sales and income taxes increases
local dependence upon taxes on property. In fact, 90% of locally raised revenue for
education in New Hampshire comes from property taxes. This high percentage, combined
2. The state with the second highest percentage of funds from the local level is Nebraska, where local contributions make up 70.8% of the total. New Hampshire could therefore triple its state share of education expenditures and still be 50th in the U.S. in the percentage of education funds coming from the state.
3. The Educational Testing Service defined "wealthy" districts as those in the top 5% in the state in spending per pupil and "poor" districts as those in the bottom 5%. 176
with the relatively high burden on localities to fund education, means that New Hampshire’s
system of education is more dependent upon property taxes than any other system in the
country.
Data provided by the New Hampshire Department of Education indicates that there
are tremendous disparities between districts in terms of their property values. Property values
per pupil range from a low of $106,950 in Stratford School District (located in the northern
part of the state) to a high of 17,011,230 in Waterville Valley (located in central New
Hampshire) (Ford, 1991a, p. I)4. The contrasts between wealthy and poor districts in the
state go well beyond this example. The state average property value per pupil is $602,951.
Of the 174 school districts in the state, 28 have property values of less than $200,000 per
pupil while 16 districts have values of over $1,000,000 per pupil.
How much do these districts spend on education? The state average in 1990-91 was
$4,828 total spending per pupil. The 28 districts with property values below $200,000 per
pupil spent, on average, $4,373. On the other hand, districts with in excess of $1,000,000 per student spend $6,373. In general, the correlation between spending per pupil and
property values per pupil is .562, indicating a strong relationship.
Is property value the only factor affecting relative levels of spending per pupil? If so, then it is reasonable to argue that most of the blame for inequities in spending can be placed upon the state legislature. However, it will be recalled that in Alabama it was discovered that those districts with low levels of spending per pupil often had relatively low tax rates as well.
Therefore, low spending districts shared part of the blame for inequity. In New Hampshire,
4. One of the primary reasons for the relatively large disparity in property values is that a number of districts contain recreational property (mainly ski resorts) which is assessed at a much higher rate than other commercial or residential property. Waterville Valley’s district contains a popular ski resort. 177
however, there is a strong negative relationship between tax rates and spending per pupil
(correlation is -.431). In other words, districts which have low levels of spending do so even
though they have relatively high tax rates. For example, the 28 school districts in New
Hampshire with property values below $200,000 spent only $4,373 overall, but their property
tax rates averaged 23.8%. The 26 school districts with property values of over $1,000,000
had tax rates of only 10.6%. These low rates still allowed the districts to spend $6,373 per
pupil. A number of New Hampshire school districts face the problem of
Much higher than average property taxes on a very poor tax base demands that alternative means of school funding be found to make education equal throughout the state and not favor richer towns. (NH-1)
For example, in Waterville Valley, where property values are the highest in the state, the tax
rate is $1.05 per $1,000 of assessed property value. On the other hand, in Stratford School
District, where the property values per pupil are the lowest in the state, the tax rate is $16.50
per $1000 (Ford, 1991a, p. 1). Waterville Valley spent considerably more per pupil than did
Stratford.
As in other states, New Hampshire’s government attempts to partially alleviate
disparities in spending. State contributions to education are dispersed based upon a formula,
developed in 1985, which determines allotments to individual districts based upon district
financial status (i.e. capacity to raise local revenue)5. Therefore, the disproportionate share of state education funds goes to school districts with local revenue (i.e. property tax) bases
which are relatively weak. The financing formula also takes into account local tax effort
(Augenblick et al., 1990). This allows the state to give funds based upon ability, rather than willingness, to raise local revenue for education. However, this formula has had only a very
5. Incidentally, the creation of a new funding formula in 1985 was largely the result of a negotiated settlement which ended a lawsuit over education finance in 1985. 178
limited impact upon disparities in education spending in the state. This is because the state
contributes less than 10% of the education dollars spent in the state. In fact, between 1970
and 1990, the state share of education spending actually went down (from 8.3% to 7.8%)
(Calkins, 1990)6.
COMMENCING THE LAWSUIT
For much of the 20th century, New Hampshire’s dedication to low taxes has helped to
make it something of an economic success story. First relying on heavy industry, then later
on New England’s high-tech boom, the New Hampshire economy expanded rapidly. In the
1980s, the state produced more jobs per capita than any other state except Arizona and
Florida (Barone and Ujifusa, 1992).
Education was among the primary beneficiaries of New Hampshire’s economic
strength. New Hampshire’s economy produced large commercial properties which provided a
substantial, constant stream of property tax revenue earmarked for local expenditures for
services like education. In the late 1980s, however, the state began to suffer a severe
economic recession. A number of industries closed or cut production dramatically. Perhaps
more important for the purposes of this research, real estate values plunged. As property values dropped, a number of school districts across the state began having greater difficulty raising funds for education.
6. There has been a recent shift in the source of state money for education. For much of its history, state government relied on selective sales taxes (mainly on cigarettes and alcohol, a.k.a. "sin" taxes) for revenue to support services like education. These revenue sources produce what are labeled "hard funds" because their tax yields are relatively stable. Recently, however, the state decided to make revenue collection for education totally dependent on a "soft" (or unstable) source: the state lottery. The result is that the level of state funds for education fluctuates a good deal. 179
One of the cities hardest hit by the economic recession of the late 1980s was
Claremont (located in the southwest part of the state). For much of the state’s recent history,
the city of Claremont was the embodiment of economic expansion. A number of heavy
industries located in the city. Claremont's schools benefitted from these commercial
properties which yielded large tax revenues for the provision of education.
Over the last 10-15 years, however, most of the factories in the area have, for one
reason or another, shut down operations. In the late 1980s, Claremont fell deep into
recession and property values dropped dramatically. It became increasingly difficult for the
school district in Claremont to raise funds and meet demands. Even as property tax rates
increased dramatically to make up for the difference, Claremont’s schools could not prevent
declines in education spending.
They were not alone. A number of school districts across the state began to suffer the
ill-effects of the economic recession sweeping through New England in the late 1980s and
early 1990s. As the economic recession and the subsequent slump in property values
continued, several school districts found it increasingly difficult to raise the local share of
education funds. Problems were compounded by the fact that the general public was
becoming increasingly opposed to seemingly continuous increases in property tax rates as
local governments attempted to compensate for lost revenue resulting from declines in
property values. For example, the city of Rochester increased property taxes 27% between
1989 and 1990. A number of other cities imposed similar increases (Ghioto, 1990, p. 1).
The key issue [in deciding whether to join the coalition] was overly burdensome local property taxes and burdened taxpayers who would not support two annual budgets which would maintain educational programs at the same level... (NH-2)
In the late 1980s, Claremont school district, along with other property poor districts
in the state, began to lobby the legislature for reform of the financing system that was very 180
localized and very property tax-dependent. During this time, there was also increasing debate
across the state about the strength of the system of public education more generally. In April
of 1990, a state-wide survey indicated a fairly broad consensus that there were problems in
the education system which needed to be addressed. But there were disagreements on two
fundamental issues: 1) the nature and extent of the problems and 2) the appropriate
solution(s). The survey found
...wide agreement that New Hampshire’s education system needs work. Taxpayers complain of costs. Parents and business leaders complain of quality. Teachers complain of low pay and overwork. The studies found all of these complaints. But what they also found was the wide divergence between the educational community and the rest of the state over how to tackle the problem, a disagreement that could stand in the way of a solution. (Milne, 1990, p. 1)
How serious were the problems perceived to be? The survey reported
...mixed views about whether there is a crisis in New Hampshire today. Business, superintendents and principals say there is not a crisis. Teachers, parents, school boards and local officials say there is. Legislators are split down the middle...(Ibid)
In addition to the dispute over the nature of the problems, there was fundamental
disagreement over the appropriate course of action. As discussed in chapter one, it seems that
discussions about the problems of American education inevitably revolve around questions of
finance. There has long been a debate over the exact importance of money to education
reform. In New Hampshire, these disputes are invigorated by the long-standing resistance to taxes in the state.
A wide-ranging poll by Becker Institute Inc. last week found large numbers of educators saying that educational quality cannot improve without more money. The backed a broad- based tax to finance education. A majority of other citizens said schools could improve without injections of new money and repeated their opposition to any broad-based tax. (Ibid)
The result of this disagreement was gridlock in the legislature over the issue of education reform. 181
In the fall elections of 1990, the general public again let their feelings about taxes be
known. Tax policy, as always, was the single biggest issue in the gubernatorial race.
Governor Judd Gregg was re-elected with 61 % of the vote in a race against former
Democratic State Chairman Joseph Grandmaison. Grandmaison had refused to take the "no-
tax" pledge. Gregg, however, had maintained a high-profile opposition to even discussing tax
reform during his first term. Gregg had also let it be known that he thought the New
Hampshire system of education was solid.
It was within this context that school officials in Claremont began to consider a
lawsuit against the state. In the late 1980s, they had begun to conduct research on the
problem of inequity. At the same time, they consulted with Dr. Arpiar Saunders of the
Franklin Pierce Law Center in Concord about the prospects of gaining a favorable court
ruling. The advocates of a lawsuit were informed that they faced a legal barrier which was
every bit as significant as the ones faced by plaintiffs in Alabama and Arizona. Unlike nearly
every other state in the country, the New Hampshire Constitution scarcely mentions education
and does not have a distinctive education article. Most other state constitutions possess
education clauses which use words like "common" and "uniform" in describing the primary
and secondary education system to be developed by the state legislature. Plaintiffs in finance
suits use these phrases as scales by which to measure the adequacy of their current finance
systems (see chapter two).
In order for the lawsuit in New Hampshire to proceed, the plaintiffs had to argue that
children in poor school districts were being denied equal access to an education on the basis of Article 83 (part 2) of the state constitution. Knowledge and learning, generally diffused through a community, being essential to the preservation of a free government; and spreading the opportunities and advantages of education through the various parts of the country, being highly conducive to promote this end; it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interests of literature and the sciences, and all seminaries and public schools... 182
This language appeared to offer little firm guidance on whether disparities were constitutional.
Nevertheless, over the next 18 months, Claremont proceeded to canvass other districts in the state about the possibility of commencing a suit. There was a good deal of support for the idea across the state. In fact, on October 13, 1989 delegates to the annual meeting of the
New Hampshire School Boards Association had voted to support legislation "to relieve the property tax burden and improve the educational system throughout the state" even if it means creating "additional tax revenues." And if that wasn’t enough, they voted to support a lawsuit challenging "...the constitutionality and legality of the utilization of property taxes as the primary funding source of education in the state of New Hampshire."...The vote was 40-15. (Merton, 1989, p. 2)
This vote came even as a number of the delegates expressed concern about the potential decline of local control that would result from state-level attempts to decrease disparities.
"We have more local control than any other state in the nation. That’s what makes us unique...This is a dangerous vote. This is a ticket to big government." (Ibid)
While such a vote in a state-wide education organization was no doubt a source of encouragement to those interested in pursuing litigation, not everyone saw the New
Hampshire School Boards Association vote as a broad endorsement of the litigation.
You have to understand that the New Hampshire School Boards Association is adamantly in favor of a broad based tax in NH (i.e. sales and income). They do not represent a consensus of member boards. Rather, they push their own agenda. The suit on funding was their brainchild and they searched far and near to line up districts to join the litigation. (NH-3)
Claremont School District was prepared to commence the lawsuit. The chairperson of the district sent a letter to the chairpersons of all 174 school districts in the state soliciting support for the litigation. In addition, education officials from a small number of school districts held public meetings with school boards from across the state in order to supply information about the potential suit. School districts were asked to contribute three dollars per student, up to a total of $5,000 (Associated Press, 1990b, p. 28). Approximately 28 of 183
the state’s 174 school districts contributed money to the fund established to finance the
lawsuit.
On June 13, 1991 the coalition, naming five school districts as plaintiffs, sued the
state. The plaintiffs argued that the system of finance created inter-district disparities in
spending per pupil in violation of the state constitution. Citing Article 83, the original
complaint argued that
"...the Legislature and the Governor have failed to spread the opportunities and advantages of education equitably among all New Hampshire students attending elementary and secondary public schools and have thereby failed to diffuse knowledge and learning generally throughout the state." (p. 23)
The plaintiffs also argued that the low percentage of state contributions to education violated
"...the constitutional requirement that education in the state be adequately funded and that
educational opportunity be spread equitably." (p. 24). Finally, the plaintiffs argued that the
constitution’s equal protection clause had also been violated (Ford, 1991a, p. 1)
On July 31, 1991 the state asked the trial court to dismiss the suit because it did not
indicate a remedy that was within the court’s power to grant. According to the defendants,
the suit was based upon what was fundamentally a "political question" (Ford, 1991b, p. 56).
Oral arguments began June 5, 1992. On August 22, the trial court judge granted the state’s
motion for dismissal. As of June 1, 1993 that decision was under appeal.
BIVAR1ATE ANALYSIS
Surveys were sent to the chairpersons of each of the 174 school districts in New
Hampshire. Of those, 28 (16.1%) were members of the coalition providing financial support for the litigation. Completed questionnaires were received from a total of 80 school districts
in the state (46.0%). Plaintiffs (46.4%) and non-plaintiffs (45.9%) responded at virtually 184
identical rates. Unlike the cases in Alabama and Arizona, there was no relationship between
financial status (defined as property value per pupil) and response rate in New Hampshire7.
Steo One: Recognition of Injury
As discussed above, the New Hampshire School Boards Association voted
overwhelmingly in favor of a resolution criticizing property tax-based methods of education
finance. Presumably, one of the main concerns about the system of finance was the inequity
that results from it. The responses to the questionnaire used in the present analysis support
this conclusion. Eighty-five percent of plaintiffs and 64% of non-plaintiffs stated that inter-
district equity was "important" or "very important". There appears to be a certain level of
consensus among school districts about the need for equity. As anticipated, though, plaintiffs
were more likely to emphasize the need for equal expenditures.
Step Two: Attribution of Blame
Based upon data collected from the New Hampshire Department of Education, there
can be little doubt that disparities indeed exist (see above). The controversy, then, centers not
on their existence but on the forces which lead to their creation. Analysis indicates that there
is a strong relationship between property values and spending levels. It is therefore
reasonable to assert that the creator of the finance structure (i.e. the state) shares at least part
of the blame for inequity. On the other hand, statistics also indicated a strong negative
association between tax effort and spending levels (i.e. districts which spent less had relatively high tax rates).
7. The correlation was .036. 185
Among plaintiffs and non-plaintiffs, however, the inclination was to spread the blame.
Substantial percentages of plaintiffs (53.8%) and non-plaintiffs (42.4%) said that both low
spending districts and the state are to blame for inequity. The plurality of the remaining
districts in both groups blamed the state outright. When those who placed blame on both
were pushed to point the finger at a single actor, most plaintiffs (62.5%) and non-plaintiffs
(56.1 %) blamed the state. However, this statistic also reveals that substantial percentages of
both were willing to blame local school districts. The hypothesis that plaintiffs would be
more likely to blame the state (rather than low spending districts) for inequities is supported
by survey responses, but the differences between plaintiffs and non-plaintiffs on this are not
substantial.
For the balance of this analysis, it is critical to re-emphasize the tremendous localism
that exists in New Hampshire’s government structure in general and education system in
particular. In a fashion more old world than new, New Hampshire’s local school districts are
in nearly complete command of their individual systems. Citizens of the state have become
accustomed to, and very protective of, this localism. This will obviously affect the way they
think about the positives and negatives of the education system in New Hampshire. The
willingness of fairly substantial numbers of respondents to blame low spending districts for
disparities in spending reflects this belief in localized education.
Step Three: Recognition of Court Relevance
Along with localism and low taxes, there is another political tradition in New
Hampshire which sets it apart from most other states. The state’s process of formulating
public policy is perhaps the most democratic in the nation. In the purest form of participatory democracy, cities, towns and school districts across the state hold annual town meetings. 186
These are designed to allow public discussion and debate about the most important issues
facing cities and schools.
.. .our state embraces the Town Meeting form of government more strongly than the other New England states, especially when considering the taxation structure of NH. Town Meetings and School District Meetings provide a forum for voters to speak directly to their elected representatives... (NH-4)
This perhaps creates a good deal of apprehension about the involvement of the state’s
appointed judges in the policy process8. It would seem reasonable, then, to suspect that both
plaintiffs and non-plaintiffs would be hesitant to say that litigation is the most appropriate way
to resolve the conflict over education policy. This is indeed the case. Only 39% of plaintiffs
and 29% of non-plaintiffs (only 32% of districts overall) thought litigation was the most
appropriate method for resolving the dispute over finance. Far greater percentages (62% of
plaintiffs and 59% of non-plaintiffs respectively) supported a legislative solution9.
Is this how educators in New Hampshire feel about court activity more generally?
Table 26 contains information about responses to court involvement in a variety of areas.
8. New Hampshire utilizes a system of judicial selection in which the governor nominates candidates for the bench who are confirmed by a five-member panel (Council of State Governments, 1992).
9. The balance of non-plaintiffs argued that it was up to the low spending school districts themselves to achieve greater equity. 187
TABLE 26
ATTITUDES IN NEW HAMPSHIRE ABOUT THE PREFERRED LEVEL OF JUDICIAL INVOLVEMENT IN DISPUTES IN PARTICULAR AREAS OF ELEMENTARY AND SECONDARY EDUCATION (Percentage of all districts with particular preferences)
Always/ Rarely/ General I v Sometimes Never
Codes of conduct 4% 9% 87% Disciplinary practices 4% 20% m Equal opportunities for women students 11% 30% 59% Religious practices 13% 30% 57% Employment practices 5% 49% 46% Racial integration 25% 33% 42% Education finance 18% 48% 3f% Services for handicapped students 13% 66% 12%
N = 79
There is a good deal of hesitation about allowing courts to become involved in education.
Hostility is particularly high for issue areas like codes of conduct and disciplinary practices.
It is interesting that there is not the dichotomy of issue areas that was found in
Arizona and Alabama. While there are differences, respondents do not seem to treat day-to- day operations as fundamentally different from rights-based disputes. This is particularly true for issues related to women, where respondents were very reluctant to give approval to judicial intervention. There is also only begrudging support for judicial involvement in employment and racial integration10. For the purposes of this research, it is interesting that
10. In terms of the question related to racial integration, it is important to remember that minorities make up only 2.7% of New Hampshire’s population. 188 fully one-third of those surveyed stated that judicial involvement in education finance issues should be rare or non-existent.
Because of this general apprehension about judicial intervention, responses from New
Hampshire districts on this issue are considerably different from those found in Alabama and
Arizona.
TABLE 27
PERCENTAGE OF PLAINTIFF AND NON-PLAINTIFF DISTRICTS IN EACH STATE THAT BELIEVE THE JUDICIARY SHOULD "RARELY OR NEVER" BE INVOLVED IN DISPUTES IN AREAS OF EDUCATION
N,H, Alabama Arizona
Codes of conduct 87% 75% 70% Disciplinary practices 76% 52% 52% Equal opportunities for female students 59% 40% 38% Religious practices 57% 56% 51% Employment practices 46% 23% 37% Racial integration 42% 14% 25% Education finance 34% 29% 19% Services for handicapped students 22% 17% 19% o Z 00 II II Z 00 N =78 00
The table shows that with the exception of religious practices, New Hampshire educators are appreciably more hostile than their colleagues to judicial intervention into education disputes11.
11. These results may partially be a function of the fact that school board chairpersons answered surveys in New Hampshire while superintendents responded in Alabama and Arizona. 189
In terms of the differences between plaintiffs and non-plaintiffs in New Hampshire,
the results are in table 28.
TABLE 28
PERCENTAGE OF PLAINTIFF AND NON-PLAINTIFF DISTRICTS IN NEW HAMPSHIRE THAT BELIEVE THE JUDICIARY SHOULD "RARELY OR NEVER" BE INVOLVED IN DISPUTES IN AREAS OF EDUCATION
Plaintiff Non-Plaintiff
Codes of conduct 77% 89% Disciplinary practices 77% 76% Equal opportunities for female students 69% 51% Religious practices 46% 59% Racial integration 46% 38% Employment practices 31% 49% Education finance 15% 37% Services for handicapped students 8% 24%
N = 78
= = = = = — _____
Differences between plaintiffs and non-plaintiffs seem to be fairly issue specific. Non plaintiffs are more hospitable to judicial involvement in issues related to disciplinary practices and racial integration. The districts are fairly even on the issue of opportunities for women.
Plaintiffs are more inviting to judicial involvement in the areas of codes of conduct, religious practices, employment practices, services for handicapped students and, as expected, the conflict over education finance. 190
Consideration of Costs
The coalition requested that each of its members contribute three dollars per student,
with no district required to pay more than $5,000. Given the economic problems facing a
number of school districts, the size of the financial contribution seemed to cause a good bit of
concern among districts.
The key consideration was purely a financial one. We had had two deficit years and faced the possibility of another. We were simply unable to consider the addition of an "optional" additional expense, no matter how much we as a school board strongly believed in the merits of the suit. (NH-5)
Money was the decision maker -- we felt we did not have the resources -- present and future -- needed to conduct such a lawsuit. We also felt many of the taxpayers would not support such an expense. (NH-6)
In fact, nearly one-fourth of plaintiffs claimed that monetary costs of coalition membership
were "substantial". Sixteen percent of non-plaintiffs felt this way. This result is contrary to
expectations. It seems that even though a large portion of plaintiffs expressed concern about
the costs, it did not prevent them from joining the coalition12. As in Alabama and Arizona,
time costs were of negligible importance.
District perceptions of the potential damage to relations with state government
resulting from involvement in the litigation were constructed in a somewhat contradictory
environment. The Republican governor and Democratic members of the legislature seemed to be divided on the issue of education finance and the related question of the tax structure. The governor adamantly opposed alterations in the tax structure and supported the current education system. On the other hand, several legislators, primarily Democrats, seemed willing to discuss the possibility of some sort of broad-based sales or income tax to reform education in the state. These disagreements manifested themselves in differing views about
12. Almost half (43.3%) of non-plaintiffs were unaware of the financial costs. Obviously, those who were unaware of the costs were not discouraged by them. 191
the litigation. The governor made no secret of his hostility to the lawsuit and those involved
with it.
You can’t even make a plausible scenario for their case to prevail. It’s a diatribe rather than a legitimate suit, in my opinion, and that’s because they have few facts to support their opinion. (Jiminez, 1991, p. 1)
Legislators, again mainly Democrats, appeared more sympathetic to the litigation. For
example, in 1991 a bill went before the state house of representatives which would have, in
essence, paid the legal expenses for the plaintiffs in the finance suit. The bill failed, but the
vote was 172-143. In addition,
(Governor) Gregg’s ire was most recently raised by the Senate Fiscal Committee’s decision to deny Attorney General John Arnold’s request to spend $50,000 to gather information to help the state defend itself in the upcoming fight...(Ibid, p. 18)
Given this context, it is interesting that only 6% of non-plaintiffs and no plaintiffs felt
that relations with the state would be damaged by involvement in the litigation. Apparently,
the governor’s hostility was negated by sympathy from the legislature. In addition, because
New Hampshire’s gubernatorial term is only two years, Governor Gregg left office in January of 199313. His departure may have reduced the level of anxiety among districts as they
considered joining the litigation. There were still those who decided against involvement for this reason. "The people sitting on the board...didn’t want to ’rock the boat’, even though they constantly complain about the lack of state funding." (NH-7)
Consideration of Benefits
The discussion of potential benefits begins with the assumption that poor districts will be more likely to benefit from the litigation, making them more likely to join the coalition.
As previously discussed, property values are particularly important to education spending
13. He declined to run for re-election, choosing instead to seek a seat in the U.S. Senate. 192
levels in New Hampshire (more so than in Alabama or Arizona). This may lead to an
increased importance of financial status in the decision of whether to join the litigation.
TABLE 29
RELATIONSHIP BETWEEN SUBJECTIVE EVALUATIONS OF FINANCIAL STATUS AND THE DECISION TO BECOME A PLAINTIFF IN NEW HAMPSHIRE
Evaluation of status Plaintiff Non-Plaintiff
Very good 17% 83%
Above average 7% 93%
Average 17% 83%
Below average 30% 70%
Poor 17% 83%
N=79 I ______- — ______
The table indicates that the relationship between perceptions of financial status and the decision to join the litigation is very weak (Tau-B = .092). Most interesting, equal percentages of districts (16.7%) where the finances are relatively "poor" and "very good" joined the suit.
Table 30 presents the relationship between objective financial status and the decision to become a plaintiff. 193
TABLE 30
PERCENTAGE OF DISTRICTS WITHIN EACH QUARTILE (BASED ON VALUE OF PROPERTY PER PUPIL) THAT BECAME PLAINTIFFS IN NEW HAMPSHIRE
District Status* Became plaintiffs
First quartile 2.6%
Second quartile 10.0 %
Third quartile 25.0%
Fourth quartile 27.5%
N = 159
* The first quartile represents the districts that are in the highest 25% of districts in terms of property value per pupil.
The relationship is stronger here (Tau-B = .247). As expected, relatively poor districts (those in the third and fourth quartiles) are more likely to litigate than are wealthy districts. The differences in tables 29 and 30 seem to defy simple explanation14.
Efffcasy
The model argues that only districts which think the litigation will be productive are likely to join the coalition sponsoring it. As in other states, there was generally little optimism that a political solution (preempting judicial intervention) could be reached in New
14. Unlike the case in Arizona, there is a solid relationship between subjective and objective measures of financial status in New Hampshire (Tau-B = .369). 194
Hampshire. While a number of legislators had been supportive, most were unwilling to take
the lead on any issue related to taxes. Meanwhile, the governor remained intransigent.
In terms of the potential for a legal solution, New Hampshire districts were less
confident than their counterparts in Alabama and Arizona. Only 15% of plaintiffs and 3% of
non-plaintiffs were "sure the plaintiffs would win". An additional 39% of plaintiffs and 18%
of non-plaintiffs "thought the plaintiffs might win".
As expected, plaintiffs were generally more optimistic about the litigation’s ultimate
success. Still, few respondents could be classified as exuding confidence15. Why is this the
case?. Each respondent was asked to identify the sources of their predictions. Plaintiffs and
non-plaintiffs most often pointed to studies of the New Hampshire education system. There were, in fact, a number of places educators could turn for information about the education finance structure in the state. Before the lawsuit began, the leaders of the movement to
instigate a lawsuit did a thorough job of disseminating information about the structure of financing in the state. A series of meetings were held with school boards across the state to answer questions about the finance structure in general or the potential lawsuit in particular.
The coalition organizers also sponsored regional television programs designed to educate the public about the finance system and the potential lawsuit. Objective media coverage of the problems of education in the state was also quite high.
Statistics on disparity in the state have therefore been widely circulated. Low levels of optimism among districts about the chances for success in court may be traced to perceptions that the levels of inter-district disparity are legally unpersuasive. While the system is clearly inequitable, it may not be unconstitutional. Many districts may think that
15. It should be recalled that a majority of plaintiffs in both Alabama and Arizona were "sure the plaintiffs would win". 195 the inequities in New Hampshire are not of a severity that will induce the state’s courts into action.
A number of plaintiff districts also indicated that U.S. Supreme Court decisions were important in the creation of impressions about the likelihood of litigation success. It may be that San Antonio Independent School District v. Rodriguez (see chapter two) was widely discussed prior to the commencement of the suit, creating a sense of pessimism about the chances for plaintiff success in the New Hampshire case. On the other hand, very few districts in New Hampshire referred to court cases in other states16.
If the state supreme court decides in favor of the plaintiffs, what happens then? It is worth discussing the fact that the coalition sponsoring the New Hampshire litigation, like their cohorts in Alabama and Arizona, have been very careful to avoid advocating particular solutions to the problem of inequity. This is largely because there is a feeling among coalitions in a number of states that public support for spending equity is absolutely crucial to insuring that the legislature and the governor respond effectively to a judicial decision striking down the current finance system. The theory is that broad support among voters will help force the political branches to create a more equitable system. Alternatively, public opposition to alteration of the finance structure can create new barriers, even when the courts agree with the plaintiffs that the finance system must change.
There is a constant effort on the part of litigants in these cases to build and maintain public support for their cause. This is why coalitions that sponsor finance litigation are hesitant to offer possible remedies. There is a fear that if the coalition sponsoring the
16. It is worth noting that the importance of other states may increase dramatically when the finance litigation in Massachusetts is decided. Like New Hampshire, plaintiffs are arguing that the system of education finance violates the state’s constitution. What makes this case potentially important is that the New Hampshire constitution was based on the Massachusetts document and is therefore very similar in language. 196 litigation begins to discuss solutions, public support will dissipate as individuals and groups go from supporting the abstract notion of equity to thinking about the potential impact of particular alterations in the status quo. In New Hampshire, for example, it seems reasonable to predict that any remedy to the problem of spending disparity will inevitably clash with the political traditions of the state. First, a reduced reliance on property taxes will necessarily mean the substitution of another revenue source, such as income or sales taxes. Second, a decrease in the local share of contributions to education may mean greater state funding and, perhaps, greater state involvement in education more generally. This is a fact not lost on
Governor Gregg who, on the day the suit was filed, warned that a plaintiff victory meant increased state control (Ford, 1991a). These potential results may have dissuaded some districts from becoming involved in the first place. "We are opposed to any new taxes or any more state controls in any form." (NH-8)
The community values local control. If the state controls our $ we will give up much of that control. Our district does support more state funding for districts with limited resources, but we do not want to give up our control of local funding of education (NH-9)
The major factor by the general public at the school district meeting in deciding not to endorse this campaign, was fear of the state implementing an income tax to fund education. N.H. in general, and...(our district)...in particular is highly political and resistant to any idea that would eventually remove control, either in part or in whole, from the local level. (NH- 10)
Majorities of both plaintiffs (92%) and non-plaintiffs (70%) predicted that at least
"moderate" changes in the finance structure will occur. However, as in Arizona, non plaintiffs were more likely to predict (or fear) that the changes would be "substantial". In fact, a majority (56%) of non-plaintiffs made such a prediction, but only 39% of plaintiffs did so. As discussed in the last chapter, it may be that those who predict the occurrence of substantial changes in the system are also those most likely to suffer the negative 197
consequences of such changes. These districts (who are primarily wealthy) are therefore
unlikely to join the litigation.
On the question of who would be the beneficiaries of changes in the system, a
plurality of non-plaintiffs (44%) predicted that poor districts would benefit most. On the
other hand, plaintiffs were fairly divided on this question. Roughly equal numbers predicted
that the benefits would 1) go to only poor districts or 2) be spread across the state17.
The notion that some school districts may oppose the litigation because of a fear of
"substantial" changes is supported by responses to another question. A substantial number of
districts predicted that wealthy districts would carry the burden of reform as funds are shifted
from some districts to others. There is, however, no real difference between wealthy and
poor districts on this question.
Finally, the question was posed about the condition of the district’s own financial
status in the wake of a court ruling striking down the status quo. As expected, a majority of
plaintiffs predicted that their financial status would improve. Only one-quarter of non
plaintiffs made such a prediction. As in Alabama and Arizona, it seems that a number of
districts supported the notion of greater equity, but did not join the litigation because of the
ramifications of greater equity for their own district.
Our district school board voted not to participate in the coalition specifically in the best interests of the taxpayers and students of only our district. While the district’s board members and administrators aU held the opinion that the lawsuit was broadly good for education state-wide, its results would be negative financially for the students and taxpayers of our specific district. (NH-11)
The prediction about whether the district was likely to benefit was strongly associated with financial status. Only 15% of districts in the top quartile (i.e. top 25% among districts in
17. As with Alabama and Arizona, membership in the coalition was not perceived to be of importance in terms of involvement in designing a new finance system or benefitting from it. 198 terms of property value per pupil) believed their financial status would improve, but 50% of districts in the lowest quartile felt this way.
One final note is in order. As discussed above, Governor Gregg and others predicted increased state involvement in education if the plaintiffs were successful. A number of plaintiff and non-plaintiff respondents agreed with this prediction. Roughly one-third of both groups thought that state involvement would increase at least moderately. This response may also be linked to the aversion to "substantial changes" among non-plaintiffs described earlier.
Plaintiffs, on the other hand, joined the litigation in spite of this concern18.
Third Parties
It seems reasonable to argue that third parties would play a relatively prominent role in the decisions of New Hampshire districts on the issue of the education finance litigation.
First, the state has a strong tradition of broad participation in policy decisions (see above).
Second, because education is so localized, it would seem likely that decisions related to education would engender broad interest among third parties within the school district. Third party opinion in New Hampshire is compared with opinion levels in Alabama and Arizona in table 31.
18. Calculations of the level of free-riding that occurred in New Hampshire (based upon the criteria discussed in chapters five and six) indicated that this was not much of a problem. Only 6 of 63 non-plaintiff respondents (9.5%) met all of the criteria for being a free-rider. 199
TABLE 31
PERCENTAGE OF DISTRICTS IN EACH STATE THAT REPORTED THAT EACH THIRD PARTY HAD AN OPINION ABOUT DISTRICT INVOLVEMENT IN THE LITIGATION*
Third Party N,H, Alabama Arizona
School administrators 58% 61% 71% Local government officials 54% 39% 39% General public 45% 24% 23% State legislators 38% 34% 32% Teachers 36% 28% 26% Parents 35% 24% 13% Business/civic leaders 32% 31% 14% School district attorney 12% 28% 22% Interest organizations 3% 1% 3% 00 00 Z Z t— 11 II N =90
* The table represents the number of respondents who, in reference to each particular third party, answered that the party a) favored, b) was evenly divided or c) opposed joining the Coalition.
- — .....
With the exception of school administrators, every third party is more opinionated in New
Hampshire than either of the two other states. This is particularly true of the general public.
This result makes sense in light of the traditions of localism in education and broad participation in government in New Hampshire.
There is another reason these traditions make third party participation likely in New
Hampshire school districts. It was argued in chapter five that official votes by the school board create a context in which third parties (i.e. those who are not official school district decision makers) may become more active. The logic is that official votes are public decisions, allowing third parties to form opinions and make them known. It would seem reasonable to expect that most decisions of New Hampshire’s school districts would be made 200
in this fashion. In 30% of the districts in Alabama and 48% of Arizona districts, "official
votes" were taken on the issue of whether the district should join the coalition. Official votes
were taken in 65% of the districts in New Hampshire.
The fact that opinion levels of school administrators are lower in New Hampshire than
other states is not unexpected. School administrators may not be active in as many districts in
New Hampshire because of the decision making structure of local school districts in the state.
Superintendents in New Hampshire are often in charge of multiple districts (see chapter four).
They are therefore perhaps more detached than their cohorts in other states from the day-to-
day operations of particular districts. In fact, superintendents were said to be directly
involved in the decision about the finance litigation in only 15% of the districts in New
Hampshire19. This removes the decision maker with which other school administrators will
likely have the most contact (see chapter five). This decreases the ability of school
administrators to have their opinions known in New Hampshire districts.
It is again worth noting the very small involvement of interest groups and school
board attorneys. As in other states, these two parties appear to be completely detached from
decisions about education finance litigation.
Are there differences between plaintiff and non-plaintiff districts in New Hampshire in
terms of third party activity?
19. Superintendents were directly involved in the decisions of 57 % of the districts in Alabama and 45% of the districts in Arizona. 201
TABLE 32
PERCENTAGE OF DISTRICTS IN NEW HAMPSHIRE THAT REPORTED THAT EACH THIRD PARTY HAD AN OPINION ABOUT DISTRICT INVOLVEMENT IN THE LITIGATION*
Third Partv Plaintiff Npn-Piaimiff
School administrators 85% 54% Local government officials 85% 48% General public 85% 27% Parents 77% 27% State legislators 62% 33% Teachers 62% 31% Business/civic leaders 24% 27% School district attorney 17% 10%
N=78 (for all third parties except school board attorneys, where N=60)
* The table represents the number of respondents who, in reference to each particular D third party, answered that the party a) favored, b) was evenly divided or c) opposed joining the Coalition.
As in other states, third parties are much more active in districts which eventually decide to become plaintiffs. This may be traced to the heightened controversy in such districts and the
increased likelihood that official votes were taken. In fact, an official vote was taken in every district that became a plaintiff. Non-plaintiff districts were divided into categories based upon whether an official vote was taken. 202
TABLE 33
PERCENTAGE OF NON-PLAINTIFF DISTRICTS IN NEW HAMPSHIRE THAT REPORTED THAT EACH THIRD PARTY HAD AN OPINION ABOUT DISTRICT INVOLVEMENT IN THE LITIGATION*
Was an "official vote" taken? Third Party Yes No
School administrators 66% 42% Local government officials 60% 40% General public 44% 32% State legislators 43% 28% Parents 37% 15% Business/civic leaders 37% 16% Teachers 29% 13% School district attorney 12% 5%
N =78
* The table represents the number of respondents who, in reference to each particular third party, answered that the party a) favored, b) was evenly divided or c) opposed joining the Coalition.
Table 33 indicates that the hypothesis is correct. The differences between third parties based upon the presence or absence of official votes in their respective districts is often substantial.
It is also worth noting that for non-plaintiffs, official votes were most often taken in relatively poor districts. Half of the non-plaintiff districts with property values above the state median took official votes. On the other hand, 67% of districts below the median took official votes. This makes sense, given that districts with property values below the median would more likely to consider joining the coalition because their chances of obtaining benefits from a more equitable system of finance were relatively good (table 29).
The next question concerns the level of influence New Hampshire school districts had on each other. No perceptible influence seems to exist. Only 35% of school districts in New 203
Hampshire responded that they had sought guidance from the decisions of another district.
Seventeen percent stated that they paid attention to districts in their own region. Less than
10% of districts paid attention to any other category of sister districts. Unlike in Alabama
and Arizona, then, districts in New Hampshire felt little need to follow the actions of
similarly situated parties.
As has been argued, one way to note the influence of third parties is to calculate the
correlation between third party opinion on the question of joining the litigation and the actual
decision made by a particular district. The results are in table 34.
TABLE 34
CORRELATION BETWEEN THIRD PARTY OPINION AND THE DECISION OF LOCAL SCHOOL DISTRICTS ON WHETHER TO BECOME A PLAINTIFF IN NEW HAMPSHIRE
Parents .528 General public .497 School administrators .401 Local government officials .316 Teachers .286 S chool d istrict attorney .171 Business/civic leaders . 124 State legislators -.071
N = 77
The table yields two interesting results. First, contrary to expectations, school district decision makers in New Hampshire do not appear to be particularly swayed by the views of third parties about joining the litigation. The correlations are relatively low, indicating that even though third parties tend to observe the ideal of participatory democracy in district 204
decision making, such participation does not necessarily guarantee influence. In particular,
state legislators appear to have no influence at all. The tradition of localism may play a role
here. Local decision makers may view state legislators as agents of the state. These decision
makers are therefore hesitant to follow the advice of state legislators (the opinions of third
parties and their influence will be discussed in greater detail in the review of the results of the
multivariate analysis).
Second, the two groups whose views have the highest correlations with district
decisions are parents and the general public. Elected officials seem particularly attuned to the
views of ordinary citizens rather than education professionals or elites.
The preceding bivariate analysis shows that seven independent variables have some
relationship to distinctions between plaintiffs and non-plaintiffs in New Hampshire: 1) the placement of blame, 2) perceptions of monetary costs (contrary to expectations, plaintiffs
were more likely than non-plaintiffs to define the monetary costs as substantial), 3) current financial status, 4) perceptions of the chances for plaintiff success, 5) predictions about alteration in the financing system resulting from a court decision (contrary to expectations, non-plaintiffs were more likely to predict massive changes), 6) predictions about future financial status and 7) the opinions of third parties.
MULTIVARIATE ANALYSIS
The discussion of the New Hampshire case now turns to an analysis of the relative influence of the independent variables. Table 35 lists the intercorrelations of the dependent and independent variables. 205
TABLE 35
INTERCORRELATIONS AMONG THE DEPENDENT AND INDEPENDENT VARIABLES IN NEW HAMPSHIRE*
1 2 3 8 9 10 11
2) .017 3) .133 .338 4) .057 .043 .119 5) .044 -.117 .145 .287 6) .127 .001 .045 .179 .295 7 )- .016 .164 .027 -.052 .020 -.076 8) .327 .163 .136 .179 -.027 .347 .121 9) .005 .103 .243 .397 .069 .029 .042 .115 10) .503 -.077 -.016 .226 .208 .149 .056 .374 .029 11) .154 -.047 .174 -.132 .120 .086 .007 .360 -.040 .452 12) .402 -.217 .112 .214 .333 .375 .155 .327 .044 .522 .230
* 1. dependent variable 2. is there an injury 3. who is blamed 4. is judicial intervention appropriate 5. current financial status 6. prediction about future financial status 7. time/monetary costs 8. prediction about chances for plaintiff success 9. prediction about the extent of change in financing system from court decision favoring the plaintiffs 10. opinion of general public 11. opinion of local elites 12. opinion of education professionals
N = 74
The results of the probit equation are listed in table 3620.
20. The variable associated with predictions about the effects of litigation on relations with the state is left out of the multi-variate analysis in New Hampshire. There was little variation in responses to the question associated with this variable, making it inappropriate for use in this part of the analysis. 206
TABLE 36
RESULTS OF A PROBIT ANALYSIS OF THE MODEL OF THE DECISION MAKING OF SCHOOL DISTRICTS IN REFERENCE TO THE EDUCATION FINANCE LITIGATION IN NEW HAMPSHIRE
Standard Prob. VARIABLE b Error Change
CONSTANT -1.9227 1.5091 Is there an injury 0.0615 0.3780 2.3% Who is blamed 0.4222 0.6472 13.9% Is judicial intervention appropriate -0.6285 0.6364 -19.2% Current financial status -0.1538 0.2600 -5.5% Prediction about future financial status -0.2958 0.4210 -10.3% Time/monetary costs -0.7331 0.6063 -21.4% Prediction about chances for plaintiff success 0.4238 0.3932 13.9% Prediction about the extent of change in financing system from court decision favoring the plaintiffs 0.0754 0.3804 3.1% Opinion of general public 2.0668 0.7749 33.3%** Opinion of local elites -0.3676 0.2321 -12.4%* Opinion of education professionals 0.5280 0.3737 16.8%*
N =60 Estimated R-squared = .428
** t-statistic significant at the .025 level * t-statistic significant at the . 100 level
Twenty-eight of the 174 school districts in New Hampshire became members of the coalition sponsoring the litigation. Therefore, when no other information is available, one may predict the decisions of the districts with an accuracy of 83.9% simply by guessing that every district will not join. The model does not help much, improving prediction to 85% of the cases.
This is a reduction in error of only 7%. Clearly, the model does not perform well, nor do a 207
number of the variables operate in the predicted direction. In fact, five of the 11 independent
variables are negatively related to the decision to litigate.
The variable that is most important to the decision to litigate is the opinion of the
general public, which is significant at the .025 level. As expected, school boards in New
Hampshire are very sensitive to the wishes of their constituents. A look at the data reveals
that 24 districts reported that the general public had opinions in a particular direction. Only
four (17%) of these districts made decisions that were counter to those opinions. As has been
discussed, this result is perfectly reasonable in light of the political traditions of New
Hampshire. In addition, the opinions of education professionals is significant (.10 level) and
moves in the predicted direction.
The opinions of local elites are also significant, but in a negative fashion. In other
words, it appears that when lobbied to make a particular decision by local elites (i.e. state
legislators, local government officials and business leaders), school boards move in the opposite direction. Why? The data reveals that not all local elites have a negative influence.
In the 33 instances where local government officials have opinions in particular directions, districts followed those opinions 29 times (88%). Eighty percent of the time districts make decision in agreement with the preferences of local business leaders. The problem arises when one looks at the power of the opinions of state legislators from the district. Districts went against the wishes of their state legislator 48% of the time. Most often (67% of the time), disagreements occurred when legislators pushed districts to become involved and the districts decided not to support the litigation. This lack of influence may be traced to perceptions within local communities that legislators are state (rather than local) actors (see above). 208
Perhaps most informative is the fact that in every instance in which the general public
and the state legislator disagreed, the district made a decision which agreed with the general
public’s position. The general public has a powerful voice on the question of whether their
district ought to join the coalition. State legislators apparently do not.
There are a number of variables which operate in a direction opposite to expectations
and seem to be relatively strong influences. The bivariate analysis revealed that, contrary to
the model’s expectations, plaintiffs were more likely to perceive the costs of litigation to be
substantial. The multivariate analysis supports this finding. It seems that plaintiffs are not
dissuaded from joining the coalition by the perceived burden of financial costs.
Another interesting thing that table 36 reveals is that the perception of the propriety of judicial intervention is relatively strongly, but negatively, associated with the decision to
litigate. As was the case in Arizona, districts that think judicial intervention is appropriate are
less likely to join the litigation. This may be a sign of the desperation of the districts which joined the litigation effort. They seem to oppose involving the courts, but support a decision to do so, perhaps as a last resort.
Finally, the variables associated with the placement of blame and predictions about the chances for a judicial decision favoring the plaintiffs are both relatively strong influences and operate in the predicted direction21.
21. It is worth noting that the variable associated with current financial status, when operationalized on an objective basis (i.e. property value per pupil) was significant at the .20 level. 209
MULTIVARIATE ANALYSIS-PART II
TABLE 37
RESULTS OF A PROBIT ANALYSIS OF THE REVISED MODEL OF THE DECISION MAKING OF SCHOOL DISTRICTS IN REFERENCE TO THE EDUCATION FINANCE LITIGATION IN NEW HAMPSHIRE
Standard VARIABLE b Error I
CONSTANT -1.0109 1.0400 -0.9721 Is there an injury -0.0526 0.2657 -0.1979 Who is blamed 0.3310 0.4435 0.7465 Is judicial intervention appropriate -0.0295 0.4923 -0.0599 Current financial status 0.0319 0.1800 0.1773 Prediction about future financial status 0.0027 0.2352 0.0115 Time/monetary costs -0.2749 0.4333 -0.6344 Prediction about chances for plaintiff success 0.7687 0.3376 2.2770* Prediction about the extent of change in financing system from court decision favoring the plaintiffs -0.1870 0.2879 -0.6495
N=61 Estimated R-squared = . 136
* t-statistic significant at the .025 level
When the third party variables are removed, the variable associated with predictions about plaintiff success overwhelms all others (significant at the .025 level). CHAPTER VIII
EDUCATION FINANCE LITIGATION IN OHIO
Ohio is the state which perhaps best illustrates the wide diversity of the United States.
It is often referred to as a political, economic and cultural microcosm of the country.
Subsequently, it is the most politically divided and culturally diverse state used in this research. This creates an interesting context in which to study the genesis and evolution of education finance litigation.
The state’s political and cultural diversity owes its existence to a number of sources: the settlement patterns of the 18th and 19th centuries, the political cleavages resulting from loyalties developed during the Civil War and the Industrial revolution, and an economic system divided among major industrialized cities, coal mining areas, small factory towns and large expanses of rural territory. These forces have left an indelible imprint on Ohio politics.
First regional and then economic politics left Ohio deeply divided. Its electoral votes have long been a fiercely contested prize; its governors and senators have become presidential candidates or national figures. It is the only megastate with Republican House delegations most of the last 40 years and the only one not to have voted for a Republican senator for the last 20 years. It has oscillated fairly regularly between Democratic and Republican governors. In effect, politics in Ohio has become two very different contests -- the heavy- industry, CIO (Congress of Industrial Organizations)-dominated north-and-east, and the rest of the state. (Barone and Ujifusa, 1992, p. 952)
210 211
THE GENESIS OF FINANCE LITIGATION
It is the state’s economic diversity which is most important for the purposes of this research. The rural, Appalachian region in the southeastern part of the state is Ohio’s poorest. National discussions of the problems of the rural poor in America often refer to the
Appalachians of Ohio as an example.
The area is secluded and has trouble recruiting industries because it’s difficult to attract business executives to rural areas. Without industry, there is no tax base of tangible personal property, and the number of welfare recipients continues to climb. There is plenty of land, but it is mostly unfit for farming and of little value, keeping the tax base low. Property taxes raise just a fraction of the money needed to support the schools. (Yocum, 1990)
Consequently, school districts in the region are among the state’s poorest and generally have spending levels below the state average, sometimes substantially so.
In the late 1980s, a group of approximately 90 school districts in the region formed an organization called the Coalition of Rural and Appalachian Schools (hereinafter referred to as the "Coalition"). The primary purpose of the organization was to enhance the ability of schools in the area to communicate and exchange information. One of the prominent issues the Coalition began discussing in detail was education finance. Local districts contribute
47.5% of the education dollars spent in the state (Calkins, 1990). As in other states, localities in Ohio are forced to raise most of their revenue from taxes on property. Property poor districts in the southeastern part of the state faced the difficult, if not impossible, task of raising revenues at or near the state average.
In 1990, the Coalition commissioned an extensive study of education finance in Ohio from Drs. Kern Alexander and Richard Salmon of Virginia Tech University. These two individuals have spent much of their careers studying the structure and consequent problems of property tax-based methods of education finance. They have become recognized nationally as experts on the subject. They have also been extremely active on the issue in public policy 212 circles, providing expert advice across the country to school districts pursuing education finance litigation and to state legislatures wrestling with the problem of inequity.
Even before the study was commissioned, the Coalition recognized the existence of wide disparities in spending per pupil across the state. They had not, however, decided whether to bring a suit against the state to resolve the problem of inequity. The Coalition publicly expressed the desire for a legislative, rather than a judicial, resolution to the problem.
At the same time, the Coalition realized that an attack on the system of education finance in Ohio would be more likely to succeed with support from school districts and educators beyond the southeast region of the state. They were prepared to deal with the issue alone, but felt that success may ultimately hinge upon the appearance that concerns about the finance system were state-wide. The Coalition began an effort to expand its organization to include districts from outside the region of southeast Ohio. A meeting was held in late 1990 between members of the Coalition and school officials from a few districts in the northern part of the state. These northern officials also felt that their districts were adversely affected by the property tax-dependent system of finance. The consensus at that meeting was that a second coalition should be formed to include school districts from all across the states.
Superintendents from each of the state’s 612 school districts were invited to a meeting in
February of 1991 to discuss the possibility of forming a state-wide organization of school districts. This organization’s primary mission would be to address the problem of inequity in spending. It would eventually be called the Ohio Coalition for Equity and Adequacy in
School Funding (hereinafter referred to as the "Ohio Coalition").
The 111-page study by Drs. Alexander and Salmon, entitled "Fiscal Equity of the
Ohio System of Public Schools", was released on December 11, 1990. The study was based 213 upon data gathered primarily from 100 school districts in Ohio (out of a total of 612 in the state). These 100 districts represented the 50 districts with the highest property values per pupil (referred to in the study as "high fiscal capacity school districts") and the 50 districts with the lowest property values per pupil (referred to in the study as "low fiscal capacity school districts"). The study found wide disparities in property values across the state.
...the fiscal capacities of 50 high and 50 low capacity school districts vary significantly. For 1988-89, the mean per pupil assessed valuation of property for the 50 high fiscal capacity school districts was $131,294, and for the 50 low fiscal capacity school districts the mean per- pupil assessed valuation of property was $25,709, a difference of $105,585 per pupil. In contrast, the mean per-pupil assessed valuation of the State was $60,586, while the mean per- pupil assessed valuation of the 8 large cities was $62,265...Ohio, similar to most states, particularly those states that employ large numbers of local school districts, experiences considerable variance in the fiscal capacity among its local agencies (p. 16)
Do these differences in property values translate into disparities in spending per pupil?
For 1988-89, the 50 high fiscal capacity school districts received a mean per-pupil state and local revenue of $5,269, while the 50 low fiscal capacity school districts received $2,886 per pupil. Statewide, the mean combined state and local revenue per pupil was...$3,391. (p. 21)
In previous chapters, it was discovered that it is sometimes the case that low fiscal capacity districts generally have relatively low tax rates (ex. Alabama). This low tax effort exacerbates the problem of disparity created by differences in property values. The report presented to the Coalition of Rural and Appalachian Schools found that
Not unexpected,...measures of fiscal effort indicated that the 50 high fiscal capacity school districts exerted greater fiscal effort than the 50 low fiscal capacity school districts. The first measure of fiscal effort, local expenditures as a percentage of the assessed valuation of property, showed that the mean fiscal effort for the 50 high fiscal capacity school districts was 4.2 in contrast to the 1.4 fiscal effort made by the 50 low fiscal capacity school districts (p. 37).1
As this dissertation anticipates the examination of respondent perceptions of who is to blame for inequity, statistics in the Alexander/Salmon study indicate that the property tax-dependent
1. In the study, "fiscal effort" refers to property tax rates. 214 system of finance and low spending districts are important influences on the problem (more on this below)2.
LEGAL GYMNASTICS ON THE ISSUE OF EDUCATION FINANCE
Rumors of an education finance lawsuit had been circulating across the state during
1990. The Coalition of Rural and Appalachian Schools and the Cleveland Board of Education were both rumored to be considering separate suits. In an effort designed, at least partially, to avoid the suits, a joint committee of the Ohio state senate and house was formed to analyze the problem of inequity and propose solutions3. This signaled that education finance was to be a prominent issue in the next legislative session, which was to begin in January of 1991.
In addition, George Voinovich, who had been elected governor in 1990, appeared willing to attempt to deal with the problem of inequity (Yost, 1991a). While these were encouraging signs for reformers, they were offset by political and economic realities. First, there is a deep division between the state’s two political parties. Going into the 1991 legislative session, the Republicans controlled the governorship and the state senate, but Democrats controlled the house. This would complicate efforts to reform education finance. Second,
Governor Voinivich had campaigned for the office of governor on the promise to fight any increases in taxes. A third problem was that Ohio, like much of the nation in 1991, was
2. Spending in the Ohio system of education is in the middle range among the SO states. The system spent $4,649 per pupil in 1988-89, which was almost identical to the national average. This placed it 20th in the country (U.S. Department of Education, 1992).
3. In his testimony before the committee in November of 1990, Dr. Alexander stated that his report indicated that the method of finance used in the state was unconstitutional. While the state does spend relatively more state-level revenue in property poor districts, it was not enough to make the system equitable (Yost, 1990). 215 mired in a deep economic recession. This decreased tax receipts and made the budget process less amenable to reform.
Before the governor and legislature had an opportunity to act, the Cleveland Board of
Education filed a lawsuit against the state on January 3, 1991. The suit challenged the constitutionality of the state’s system of education finance. The Coalition of Rural and
Appalachian Schools (and leaders of the second coalition which had yet to be officially formed) had tried to persuade the Cleveland Board to postpone or abandon their lawsuit.
There were three motivations behind this request. First, there was a preference on the part of education reformers for a legislative solution. They wanted to give the Ohio General
Assembly an opportunity to take action in the 1991 session so that costly and time-consuming litigation could be avoided.
...there’s always been consideration given to lobbying in the legislature to make the changes prior to the litigation, in the hope that it would...save time and time was of the essence and, just as importantly, it would save a great deal of money because it could be done legislatively, then it would not have to go through the litigation process.
Second, advocates of reform were convinced that time was needed to organize a state wide coalition of school districts, which was scheduled to have its first meeting in February.
Such an organization would be the most appropriate weapon to persuade the legislature to provide a more equitable system in order to preempt a court mandate to do so. If litigation could not be avoided, a broad-based coalition would help to insure that the legislature responded effectively to a court decision declaring the current system of finance unconstitutional.
The third reason was perhaps most critical. Like Arizona, potential litigants in Ohio faced a hostile legal precedent. In 1976, the Board of Education of Cincinnati filed a lawsuit against the state of Ohio seeking a declaration that the system of education finance violated 216 the state constitution. The suit was based upon the state constitution’s equal protection clause and the education clause, which reads:
The general assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state... (Article VI, section 2)
In Board of Education of the Citv School District of the Citv of Cincinnati v. Walter (1979), the Supreme Court of Ohio declared that
...although the Ohio system of school financing is built upon the principle of local control, resulting in unequal expenditures between children who live in different school districts, we cannot say that such disparity is a product of a system that is so irrational as to be an unconstitutional violation...(p. 822)
Legal experts advising the organizers of the new coalition felt the precedent, while significant, was not prohibitive. This argument was based upon two factors. First, there had been a substantial increase in the spending disparities between rich and poor districts in Ohio since 1979. Second, there had been a host of recent supreme court decisions in other states which had declared their systems of finance unconstitutional.
The concern was that the lawsuit filed by the Cleveland Board of Education was too similar to the 1979 lawsuit. First, much of the legal emphasis in the Cleveland litigation, like the 1979 case, was on the system’s alleged violation of the rights of taxpayers (not students in poor districts). Second, Cleveland’s schools (like Cincinnati’s in 1979) are, relatively speaking, not adversely affected by the current system of finance4. It was thought that this damaged the Cleveland suit’s credibility before the courts. According to some legal experts, these two components of the Cleveland suit decreased the likelihood that it would be the appropriate vehicle for an attempt to overturn Cincinnati v. Walter.
4. According to state superintendent of public instruction, Franklin B. Walter, "...the Cleveland district gets half its money from the state, has a reasonably good tax base, gets $30 million a year in state aid for desegregation and gets more than any other district in Ohio for programs to aid disadvantaged children." (Yost, 1991b, p. 2B) 217
As the 1991 legislative session proceeded, members of the Coalition of Rural and
Appalachian Schools (and education reformers across the state) became increasingly pessimistic that a legislative solution was on the horizon. A number of obstacles began to form. First, the Governor became increasingly resistant to tax increases. Second, one of the dominant proposals for education reform was a "tax-share" plan. This would require some locally raised revenues to be redistributed across the state. A lawsuit was filed directly to the
Ohio Supreme Court on the constitutionality of that proposal. This suit made the governor and legislature hesitant to reach a final agreement. Finally, the economic slowdown in the state became worse. Concerns about the overall state budget in a time of declining tax receipts began to occupy more and more of the legislature’s time.
Meanwhile, on February 12, 1991 superintendents from more than 300 of the state’s
612 school districts met to discuss the possibility of forming an organization to fight for change in the system of education finance (Yost, 1991c). At that meeting, it was decided to move forward with a lawsuit against the state, to be sponsored by the newly formed Ohio
Coalition for Equity and Adequacy in School Funding5.
However, the previous Friday (February 8), the Cleveland Board of Education had filed a motion to designate their suit as a class action on behalf of all 612 school districts in the state. If the motion for class action was granted, the Ohio Coalition’s suit would likely be dismissed. The Ohio Coalition had two options. First, it could join the Cleveland suit. As discussed earlier, there was concern about the ability of the Cleveland suit to achieve the
S. Earlier, the state auditor had made a determination that school districts could spend public funds to support the litigation. 218 desired results. Second, the Ohio Coalition could file a motion opposing the Cleveland Board of Education’s request for class action status. The Ohio Coalition chose the lattei6.
Before documents could be filed by the Ohio Coalition opposing the granting of class action status to the Cleveland Board of Education suit, a Cleveland judge ruled in favor of the
Cleveland Board’s motion on February 20, 1991. The Coalition appealed that decision to the
Court of Appeals for Cuyahoga County. On April 24, the Court of Appeals issued a stay on the legal proceedings in the Cleveland suit, pending a thorough examination of the dispute over the grant of class action status (Columbus Dispatch. 1991).
The Ohio Coalition responded to this delay by filing their own suit against the state on
May 9, 1991 in Perry County Common Pleas Court. At that time, 287 school districts had become members of the Ohio Coalition. The official plaintiffs were six Ohio school districts and parents, teachers, officials and students within the districts. Contrary to the Cleveland suit, the districts named as plaintiffs in the Ohio Coalition’s suit were among the poorest in the state. The suit alleged that the system of education finance violated the equal protection and education clauses of the state constitution.
It is worth noting one of the ways the Ohio Coalition’s suit sought to deal with the
1979 decision in Cincinnati v. Walter. As discussed in chapter two, a number of state courts have upheld systems of finance which create disparities. One of the primary justification’s for doing so is through the determination that state government’s interest in maintaining local control of education is "rational" and outweighs the problems created by a localized system of
6. At this same time, a group of wealthy school districts was discussing the possibility of organizing to fight the litigation efforts in particular and changes in the current finance structure in general. 219
finance7. The 1979 decision to uphold Ohio’s system of finance was based, in large
measure, on this argument. Responding to this potential argument in the original complaint,
the Ohio Coalition stated:
The system of funding public elementary and secondary schools in Ohio effectively denies local control to the citizens and electors of plaintiff school districts, to the board of education member plaintiffs of those school districts and to all other inadequately funded school districts in Ohio because those school districts are denied sufficient resources to make policy choices in the best interests of their pupils, (p. 27; see also Yost, 199Id, p. Cl)
In June of 1991, the defendants in the Ohio Coalition suit (i.e. state government and
various individual public officials) filed a notice of removal8. The Ohio Coalition had based
part of its contention in the original complaint on the U.S. Constitution. The state argued that
because federal constitutional questions were involved, the suit properly belonged in federal
court. This was a strategic decision on the part of the state designed to move the case to a
venue 1) which will presumably be more hospitable to the state government, given the
existence of San Antonio Independent School District v. Rodriguez (see chapter two), and,
more importantly, 2) where the court’s docket is much heavier and the case will take much
longer to come to trial (perhaps years) (Yost, 1991 e). The plaintiffs countered that the
federal claims were minor and were included only as they connected to state constitutional
questions. On September 24, 1991 U.S. District Judge John D. Holschuh said the federal
courts did have jurisdiction. The judge did go on to suggest that he might agree to split the
Ohio Coalition’s suit between state and federal courts.
In an attempt to resolve the problem, the Ohio Coalition filed a second suit in Perry
County Common Pleas Court on December 19, 1991. This suit contained no federal claims.
7. This argument is a common tactic used by state governments to defend inequitable systems.
8. This document automatically moves a dispute from state to federal court. It is then up to a federal judge to determine if the federal courts have jurisdiction. 220
The legal and jurisdictional complexity of the education finance litigation in Ohio delayed oral
arguments on the December 19 suit until April 19, 1993. As of June 1, 1993, no decision
had been reached.
BIVARIATE ANALYSIS
Ohio provides what is, statistically speaking, the most conducive of the five contexts
in which to study the decision to litigate. This is because nearly half of the school districts in
the state became members of the Ohio Coalition for Equity and Adequacy in School Funding.
More specifically, at the time of data collection for this research, 287 (46.9%) of the state’s
612 districts were members of the Ohio Coalition9. Because of the large number of districts
in the state, a sample of 174 districts was selected. In order to maintain equivalence with the
universe of cases, 82 (47.1%) of the districts surveyed were members of the Ohio Coalition.
These 82 were randomly selected from the 287 Ohio Coalition members (hereinafter referred
to as "plaintiffs"). The other 92 districts in the sample were randomly selected from the 325
non-members (hereinafter referred to as "non-plaintiffs")10.
Members were much more likely to respond than non-members. Responses were
received from 62 of the 82 members of the Ohio Coalition. This yielded a response rate of
9. The Ohio Coalition is constantly trying to expand its membership, so the size of the organization fluctuates a bit.
10. School districts which were involved directly in the Cleveland Board of Education suit were excluded from the potential sample. 221
75.6%. On the other hand, only 50 (54.3%) non-members responded. The overall response
rate was 64.4%".
Step One; Recognition of Iniurv
As in other states, there is a good deal of consensus across districts on the question of
the importance of inter-district equity in education spending. Every plaintiff and 84% of non
plaintiffs were willing to say that equity is "very important" or "important". Districts are
therefore in general agreement that the disparate system of finance causes injury.
Step Two: Attribution of Blame
According to the Alexander/Salmon study (discussed above), there are tremendous
disparities between school districts when it comes to spending per pupil12. The study found
that disparate spending levels across districts were created by both unequal property values
and uneven tax rates. In other words, while the property tax-dependent system of finance
created by the state caused disparities, inequity in spending was exacerbated by relatively low
tax rates in low spending districts.
Who do respondents blame for the disparities? There is a surprisingly high level of
consensus on this question. Initially, 39% of plaintiffs and 32% of non-plaintiffs blamed only
the state (only one respondent said low spending districts were solely at fault). The rest said
that both the state and low spending districts were to blame. Among respondents that blamed
11. There was no relationship between financial status (defined as property value per pupil) and likelihood of response (correlation = .005).
12. This finding is corroborated by other studies. Riddle (1990) found that the extent of funding disparities between high and low spending districts in Ohio are second only to Illinois in a national ranking. He found that high spending districts allocated 3.1 times more per pupil than did poor districts (see also Educational Testing Services, 1991). 222
both, 100% of plaintiffs and 86% of non-plaintiffs, when pressed on the issue, replied that the
state was more to blame. The consensus among districts seems to be that "...the State is the
culprit because of the disparities that have been created in the distribution of state resources.”
(OH-1)
Step Three: Acknowledgement of Court Relevance
As discussed above, since 1990 the Ohio legislature and the recently elected governor
spent a good deal of time discussing ways to rectify financial disparities in the state’s
education system. A wide range of proposals for alleviating disparities have been discussed in
the state capital. However, disagreements between the Republican governor and the
Democratic house and an economic slowdown precluded the passage of major reform
legislation. Plaintiffs seem to have grown weary of waiting for a legislative solution. Eighty-
one percent of the members of the Ohio Coalition think that litigation is the most appropriate
means for achieving greater equity "under current political and financial circumstances in
Ohio". Plaintiff respondents generally expressed a great deal of frustration with the lobbying approach.
We have attempted to work with the legislature for many years to get a change in school finance that would provide equity and adequacy. Ohio politicians are not willing to accept their responsibilities and take needed action - going to Court is the only alternative... (OH-2)
The state legislators seem to be more concerned about getting elected; no new taxes, than on the outcome of poorly financed schools. Once we realized, due to the politics, that the state legislature was only going to pay lip service to the problem of school finance then out of frustration the court system was turned to for relief. (OH-3)
Our state legislators have been fully appraised of the inequities in school funding for the past several years but has always fallen on deaf ears...Perhaps the courts will force them to take some action. (OH-4)
We lobbied the General Assembly for years for reform — with no success! Court action -- as in other states — seemed the only alternative. (OH-5) 223
On the other hand, a plurality of non-plaintiffs (48%) thought lobbying was still the preferred
option.
The frustration with lobbying for finance reform among educators in Ohio may be
linked to general feelings about state government and its role in education. A recurrent theme
throughout this analysis has been the complaint among local educators that state government
too often institutes mandatory guidelines for the conduct of elementary and secondary
education13. Frustration develops because these measures require school districts to perform
certain functions, but the state is not perceived as willing to provide funds necessary for their
enactment.
Our district will have gone 4 years without any increase in financial support (from the state). At the same time we must carry out state mandates...it’s just not possible! (OH-6)
Something has to be done -- mandates continue with no money. (OH-7)
Tell us specifically what is wanted, give reasonably equitable and adequate funding, decrease regulations and increase real support (or get the hell out of our way) and hold us accountable. (OH-8)
This circumstance may affect respondent perceptions about the utility of negotiating
with/lobbying the legislature for change in the method of finance.
What about the role of the judiciary in education more generally? Respondents were asked "How often is judicial involvement appropriate in disputes concerning the following areas of public primary and secondary education?"
13. The exception, of course, is New Hampshire. Currently, most decisions about primary and secondary education continue to be made at the local level. 224
TABLE 38
ATTITUDES IN OHIO ABOUT THE PREFERRED LEVEL OF JUDICIAL INVOLVEMENT IN DISPUTES IN PARTICULAR AREAS OF ELEMENTARY AND SECONDARY EDUCATION (Percentage of all districts with particular preferences)
Always/ Rarely/ Generally Sometimes Never
Codes of conduct 3% 34% 63% Disciplinary practices 3% 36% 61% Religious practices 13% 37% 50% Equal opportunities for women students 8% 51% 41% Employment practices 8% 63% 29% Education finance 20% 59% 21% Services for handicapped students 15% 64% 21% Racial integration 27% 55% 17%
N = 110
As in Alabama and Arizona, there is pattern of greater acceptance of court involvement in
issue areas linked together by their potential relationship to the rights of individuals.
Educators are less hospitable to court intervention into day-to-day operations.
The difference between plaintiffs and non-plaintiffs in Ohio is provided in table 39. 225
TABLE 39
PERCENTAGE OF PLAINTIFF AND NON-PLAINTIFF DISTRICTS IN OHIO THAT BELIEVE THE JUDICIARY SHOULD "RARELY OR NEVER" BE INVOLVED IN DISPUTES IN AREAS OF EDUCATION
Plaintiff Non-Plaintiff
Codes of conduct 62% 66% Disciplinary practices 60% 62% Religious practices 48% 52% Equal opportunities for female students 40% 42% Employment practices 30% 28% Racial integration 18% 16% Services for handicapped students 22% 20% Education finance 18% 24%
N = 110
There is really no appreciable difference between plaintiffs and non-plaintiffs on the question
of judicial involvement in various education issues, including education finance. Both plaintiffs and non-plaintiffs arc relatively hospitable to occasional intervention in matters of
finance.
Consideration of Costs
In order to become a member of the Ohio Coalition, a district was required to pay 50 cents per student per year. Because the fee is annual, the monetary cost to members of the
Ohio Coalition is exacerbated by the legal maneuvering which occurred in 1991 (see above), which has served to increase the overall length of the litigation, perhaps dramatically.
However, only four non-plaintiffs and no plaintiffs were willing to define this monetary commitment as "substantial". It is important to note, however, that even if districts 226
define the costs as "moderate", such costs still might be dissuasive. It is often the case that
school districts do not think the Ohio Coalition’s membership fee is too high when viewed in
isolation. However, the fee does entail "opportunity costs”.
The decision (of whether to join the Ohio Coalition) was very simple -- if we joined it would cost us SO cents/pupil -- this money could be used to buy needed equipment. In short we cannot hurt kids just for the chance that we might end up helping them. (OH-9)
Time costs did not seem to be very important to the decisions of most respondents.
As in other states, most members of the plaintiff coalition in Ohio are regularly updated on
the progress of the litigation, but decisions about it are left to a steering committee. This
reduces the amount of time educators in member districts spend on aspects of the suit.
In terms of damage to local-state relations caused by the suit, there appears to be little
concern among districts. As discussed earlier, reform of the education finance system was
high on the legislative agenda in 1991. While most state officials did not embrace the
litigation, a number of them agree with the broad goals espoused by the Ohio Coalition. State
government appeared to spend much of its time trying to find a way to avert a court mandate,
but did not often publicly complain about the suit itself.
The relatively low level of hostility among Ohio officials to the litigation in their state
is something about which plaintiffs and non-plaintiffs appear to be aware. Fewer than 10% of the districts in the state predicted that relations would be damaged by involvement in the litigation. Because damage is not predicted to occur, retaliation is not anticipated.
There may also be a certain level of comfort derived from the number of districts which chose to become members of the Ohio Coalition. Unlike the other states in the sample, nearly 50% of the districts in Ohio joined the Coalition sponsoring the litigation. This may reduce the likelihood of retaliation because it is unreasonable to believe that state government 227
would find it feasible or politically palatable to inflict punishment on half of the school
districts in the state.
It is interesting to note the varied reactions of state officials to suits over the system of
finance in the five states covered in this research. Newspaper articles and the interviews and
survey responses used in this analysis indicate that state officials can generally be broken
down into a number of categories on the basis of their feelings about these suits: 1) those
officials who are publicly hostile to the litigation because they disagree with the notion that
the system of finance needs fixing, 2) those who agree that changes need to be made in the
system, but oppose judicial involvement in the dispute, 3) those who are publicly hostile to
judicial involvement, but privately hope the lawsuit is successful because a court mandate
would provide the "political cover" needed to institute reforms they already favor and 4) those
who are publicly supportive of the coalitions and their legal efforts.
State-level decision makers also appear divided on how to proceed while lawsuits are
pending. Some argue that legislative reform ought to be instituted in order to preempt a court
mandate. Others think that it is best to wait until the courts reach a final decision. The
perception is that such a decision will give the state an indication of the constitutional
parameters of the equal protection and education clauses in reference to the system of
education finance.
Consideration of Benefits
Table 40 presents the relationship between subjective definitions of financial status and the decision to join the Ohio Coalition. 228
TABLE 40
RELATIONSHIP BETWEEN SUBJECTIVE EVALUATIONS OF FINANCIAL STATUS AND THE DECISION TO BECOME A PLAINTIFF IN OHIO
Evaluation of status Plaintiff Non-Dlaintiff
Very good 44% 56%
Above average 33% 67%
Average 54% 46%
Below average 63% 37%
Poor 62% 38%
N = 112
The results in table 40 fit with expectations, although not strongly (Tau-B=.141). Generally,
as a district’s subjective rating of its financial status goes down, the likelihood of its
membership goes up. It is interesting to note, however, that a fairly high percentage of
districts which defined their financial status as "very good" chose to join the litigation. As it
turns out, districts where finances were "very good" who chose to join the Ohio Coalition
generally predicted that they would benefit from the litigation’s success or, at worst, be
unaffected by it. Those districts whose financial status was "very good”, but chose not to become involved usually predicted that their financial status would be damaged, some predicting the damage would be severe (more on this below).
It is worth noting, though, that the number of districts which define their financial status as "very good" is very small (9). The vast majority of districts (81 %) defined their financial status as "average" or worse. When subjective definitions of financial status are analyzed in relation to property value per pupil, it becomes apparent that, as in New
Hampshire, districts in the second highest quartile in Ohio in terms of property value per
pupil significantly underestimated their relative financial status. While these districts had
property values at or above the state average, 50% of them defined themselves as "below
average" or "poor"14.
The relationship between property value per pupil and the decision to join the Ohio
Coalition are in table 41.
TABLE 41
PERCENTAGE OF DISTRICTS WITHIN EACH QUARTILE (BASED ON VALUE OF PROPERTY PER PUPIL) THAT BECAME PLAINTIFFS IN OHIO
District Status* Became plaintiffs
First quartile 23.1%
Second quartile 42.5%
Third quartile 70.0%
Fourth quartile 57.5%
N = 161
* The first quartile represents the districts that are in the highest 25% of districts in terms of property value per pupil.
14. Of course, there are a number of ways that districts may define "financial status" for the purposes of responding to the survey used here. However, it is not unreasonable in this context to assume that relative property values play a role in that definition. 230
Generally speaking, the table fits with expectations (Tau-B = .276). However, it is interesting
that the participation rate is higher in the third quartile than in the fourth. In other words,
those districts with property values in the 51-75 percentile are more likely to join the Ohio
Coalition than are districts in the 76-100 percentile. Of course, the difference is not all that
great. Still, the results in table 41 are slightly perplexing. There are a number of possible
explanations. First, perhaps districts in the lowest quartile predict that they will be certain to
benefit by virtue of their poor financial condition, regardless of their membership in the Ohio
Coalition. On the other hand, districts in the third quartile may think that greater equity
should benefit them, but do not want to risk the possibility that membership in the Coalition
may be critical to gaining such benefits. When recruiting members for the Ohio Coalition,
leaders of the coalition movement stressed the critical nature of involvement in the effort,
arguing "...if you’re willing to sit on the sidelines and watch everybody else fight the battle,
when the battle is won, don’t expect to come and get the spoils with the rest of us."
However, it should be recalled that very few respondents in other states have felt that
membership in the coalition sponsoring the litigation is critical to helping design a new system of finance or benefitting from it. Despite messages from the Ohio Coalition’s leadership to the contrary, respondents in Ohio were unlikely to link membership to benefits. No districts thought that membership was a necessity for achieving benefits and only five thought it a prerequisite for involvement in designing the new system. It is therefore unlikely that such a consideration caused districts in the third quartile to become involved at a higher rate than the poorest districts in the state15.
15. Analysis of the links between membership in the Ohio Coalition and beliefs about how a court decision would affect district financial status also yielded no appreciable differences between districts in the third and fourth quartile. 231
A second explanation for the results in table 41 may lie in the costs of involvement in
the litigation. As described earlier, few districts defined the monetary costs as substantial, but
several mentioned that the opportunity costs were significant. Perhaps districts in the fourth
quartile (districts that would seem most financially unstable) simply think that their money is
better spent. However, further analysis indicates that this is not the case. There is no
difference between district property value and perceptions of the monetary commitment to
litigation. The results in table 41 remain a mystery.
Efficacy
It has been asserted throughout this research that there is a complex link between the
litigation’s existence and 1) a more equitable system of finance and 2) the particularized
benefits from such a system. The litigants must first win in court. As expected, plaintiffs in
Ohio were much more optimistic than non-plaintiffs about the chances for a court decision
striking down the system of finance. Twenty-five percent of plaintiffs were "sure the
plaintiffs would win" and an additional 49% "thought the plaintiffs might win". Only 2% and
19%, respectively, of non-plaintiffs, answered in the same fashion.
For plaintiffs, these perceptions were largely a function of two factors: statistical
studies of the Ohio system of education and relevant cases from other states. It will be
recalled that these forces constituted the foundation of the efficacy about the litigation among those who provide legal advice to the Ohio Coalition (see above). In 1979, the Ohio supreme
court upheld the system of finance against a similar challenge. Legal experts think that there
is a possibility that the 1979 precedent can be overturned, given that 1) the level of spending disparity across Ohio has increased and 2) there has been a recent wave of supreme court cases in other states striking down property tax-bases systems of finance. 232
Information on these two variables has apparently been filtered down to local
education officials. When the Ohio Coalition was being formed, information on Ohio’s
finance system and cases from other states was widely circulated. First, the
Alexander/Salmon study was widely circulated by the founders of the Ohio Coalition. In
addition, because the topic of education finance reform made its way on to the legislative
agenda in the 1990s, there has been substantial media coverage of the Alexander/Salmon
study in particular and statistics on education in Ohio more generally.
Subsequently, 70% of plaintiffs referred to studies of the education system as sources for
perceptions of the chances for success. Second, because of its geographic proximity, the state
supreme court decision in Kentucky received a large amount of attention. Fifty-four percent
of plaintiffs mentioned cases from other states. The vast majority of these referred to the
Kentucky case.
Finally, the existence of the Coalition of Rural and Appalachian Schools may have
something to do with levels of information among plaintiffs. The Coalition of Rural and
Appalachian Schools, made up of approximately 90 school districts in the southeastern part of
the state, had existed for a couple of years prior to the litigation. The group was formed
primarily to facilitate the exchange of information about education in the region and the state.
Its existence was probably very conducive to the spread of information throughout the region
from studies of the education system and cases in other states. Most members of the
Coalition eventually joined the Ohio Coalition for Equity and Adequacy.
Two other results are important as well. First, 40% of non-plaintiffs said that beliefs
about the chances for plaintiff success were not a factor in their decisions. Among the non plaintiffs who did consider this, most did not indicate a specific source of information from 233
which to develop their perceptions. The most widely mentioned source for these districts was
cases from other states, referred to by 20% of non-plaintiffs.
Second, very few districts (6% overall) mentioned previous Ohio state court cases.
The issue of the importance of legal precedents in the state, discussed in reference to Arizona,
re-emerges in Ohio. The argument in chapter six was that when few districts refer to
previous cases in their own state, two explanations seem reasonable. First, it may be that
decision makers simply do not know about Cincinnati v. Walter. This is a little difficult to
believe, given that educators would presumably know about something so critical to the
education finance system in the state. Alternatively, educators may know of the case, but
doubt its importance in 1992. This explanation is particularly appealing, given the importance
attached to the Alexander/Salmon study and cases from other states by members of the Ohio
Coalition and their legal advisors.
A court decision favoring the plaintiffs represents only a component of success. Once
such a court decision is handed down, it must be implemented by the political branches of
government, namely the legislature and executive. The model predicts that plaintiffs will
have greater confidence than non-plaintiffs that substantive alterations in the system of finance
will result from a court decision striking down the current method. This is linked to the
belief that school districts will only take action which they predict will yield some desired
end. In Ohio, plaintiffs (49%) were more likely than non-plaintiffs (34%) to predict that
changes in the system of finance would be "substantial".
In other states, plaintiffs are likely to predict that the benefits of a more equitable system of finance will be spread across the state. Non-plaintiffs tend to think that such benefits will be accrued mainly by poor districts. The results in Ohio are slightly different
(table 42). 234
TABLE 42
RELATIONSHIP BETWEEN PREDICTIONS ABOUT THE BENEFICIARIES OF CHANGES IN THE SYSTEM OF FINANCE AND THE DECISION TO BECOME A PLAINTIFF IN OHIO
Prediction of who is most likely to benefit Plaintiff Non-Plaintiff
All districts 43% 4%
Only poor districts 50% 70%
Other/Don’t Know 7% 26%
100% 100%
N = 110
Non-plaintiffs in Ohio are convinced that only poor districts will benefit. On the other hand, plaintiffs are fairly evenly divided between those who agree with non-plaintiffs and those who think benefits will be spread throughout the state. There is, however, no relationship between financial status (either objective or subjective) and the question of who will benefit. In other words, poor districts are no more likely than wealthy districts to predict that benefits will go primarily to poor districts.
Who will pay for the benefits? Fifty-seven percent of non-plaintiffs districts believe that funds will be shifted from some districts to others. As one respondent stated
In our current financial situation our students will lose dollars. I believe this will be a "pull down" rather than a "pull up". This Robin Hood approach will hurt our students. (OH-10)
Only 15% of plaintiffs echoed this sentiment. 235
Unlike the question of who would benefit, the question of who would be hurt by a more equitable system divided districts along lines of wealth. Sixty percent of districts who defined their financial status as "very good" or "above average" believed that funds would be shifted ftom some districts to others. Only one-third of districts calling themselves "below average" or "poor" felt this way.
The logical extension of this reasoning is that districts where the financial situation is
"very good" or "above average" are unlikely to think they will personally benefit. If it is predicted that funds will be shifted from some districts to others, districts that define themselves as relatively well-off expect money will be shifted away from them. In fact, only
20% of districts in the "very good" and "above average" categories predict that they will benefit. On the other hand, 79% of "below average" and "poor" school districts thought they would benefit. Responses to this question, as expected, also divided plaintiffs and non plaintiffs. Eighty-two percent of plaintiffs thought their financial status would improve. Only
34% of non-plaintiffs felt this way16.
Third Parties
Table 43 presents the level of opinion among third parties in the school districts of
Ohio.
16. Only 8% of non-plaintiffs met the criteria for definition as "free-riders". 2 3 6
TABLE 43
PERCENTAGE OF DISTRICTS IN OHIO THAT REPORTED THAT EACH THIRD PARTY HAD AN OPINION ABOUT DISTRICT INVOLVEMENT IN THE LITIGATION*
Third Partv Plaintiff Non-Plaintiff
School administrators 98% 58% Teachers 82% 24% Business/civic leaders 70% 16% General public 61% 16% Local government officials 56% 14% Parents 56% 6% State legislators 47% 34% School district attorney 23% 13% Interest groups 15% 15%
N=108 (for all parties except school district attorneys, where N = 84)
* The table represents the number of respondents who, in reference to each particular third party, answered that the party a) favored, b) was evenly divided or c) opposed joining the Coalition.
In a pattern similar to that found in Alabama and Arizona, third party opinions in plaintiff districts in Ohio are relatively high. Five third parties have opinions on participation in at least 50% of plaintiff districts. Also akin to Alabama and Arizona, third party opinion levels in non-plaintiff districts in Ohio are generally low.
Education professionals are the third parties with the highest rates of opinion. As discussed in reference to other states, education professionals probably have higher levels of information on the issue of education finance litigation, thus having greater opportunity to form opinions. They also have greater access to decision makers, allowing those opinions to be heard. 237
Why are third party opinion levels generally high in plaintiff districts in Ohio? As in the other states, districts that eventually became members of the Ohio Coalition were likely to have official votes on the issue, given that district resources would have to be expended.
Public votes grant third parties greater information and access to decision makers. In fact, every plaintiff district indicated that an official vote on the issue was taken (only 10% of non plaintiffs said such votes were taken in their district).
Do districts pay attention to each other on this issue? As has been discussed, the formation of the Coalition of Rural and Appalachian Schools increased communication between districts. This probably increases the likelihood that school districts in the region would be able to pay attention to the actions of other districts (table 44).
TABLE 44
PERCENTAGE OF ALL PLAINTIFFS AND NON-PLAINTIFFS IN OHIO THAT CONSIDERED THE DECISIONS OF OTHER SCHOOL DISTRICTS
Tvpe of school district referred to Plaintiff Non-Plaintiff
Districts in same county 33% 17% Districts in same region 21% 13% Districts in neighboring county 21% 13% Districts possessing similar spending levels 20% 10% Districts possessing students with similar demographic characteristics 16% 8% Districts where decision makers in your district have personal contacts 2% 4% Districts with a reputation for educational leadership in the state 2% 4%
N = 109 Overall, 54% of plaintiffs and 33% of non-plaintiffs took notice of the decision of at least one other district in the state. As expected, the table shows that geography was the most powerful predictor of where districts looked to for advice, particularly among plaintiffs17.
The final question in terms of third parties is the actual influence of their opinions.
As in other chapters, it is reasonable to examine correlations between opinions and the ultimate decisions of districts on the issue of joining the litigation.
TABLE 45
CORRELATION BETWEEN THIRD PARTY OPINION AND THE DECISION OF LOCAL SCHOOL DISTRICTS ON WHETHER TO BECOME A PLAINTIFF IN OHIO
School administrators .671 Teachers .587 General public .587 Parents .520 Local government officials .508 Business/civic leaders .475 State legislators .279 School district attorney .271
N=lll (for all third parties except school district attorneys, where N=84)
Table 45 shows that correlations are moderate between a number of third parties and their district’s decision. Education professionals are among the most influential (by this measure),
17. Of course, geographic proximity does not guarantee districts will pay attention to each other. As discussed in previous chapters, districts which are located near each other often have very different levels of wealth. Because this is such a central consideration on the issue of school finance litigation, districts may see the decisions of some of their neighbors on this issue as irrelevant. Table VII indicates that the financial status of another district is an important criteria for determining whether or not its decisions are worth noting. 239 while state legislators and school district attorneys are not. As discussed earlier, education professionals may have greater influence due to information levels and access. The opinions of the general public in Ohio also exhibit relatively strong correlations with litigation decisions of districts.
The preceding bivariate analysis has indicated a number of variables which distinguish plaintiffs and non-plaintiffs, including: 1) opinion on the relative propriety of judicial intervention, 2) perceptions of current district financial status, 3) predictions about the likelihood of a court verdict favoring the plaintiffs, 4) predictions about which districts will benefit from a more equitable system of finance, 5) predictions about district financial status under a more equitable system and 6) opinions of third parties.
MULTIVARIATE ANALYSIS
The correlations between variables are listed in table 46. 240
TABLE 46
INTERCORRELATIONS AMONG THE DEPENDENT AND INDEPENDENT VARIABLES IN OHIO*
1 2 3 4 5 6 7 8 9 10 11 12
2) .441 3) .184 .278 4) .414 .245 .092 5) .267 .213 .152 .223 6) .544 .440 .156 .392 .450 7) .084 .074 .132 -.015 .150 .136 8) .027 -.098 -.162 .031 -.030 .041 -.004 9) .478 .212 .259 .372 .043 .344 .079 -.138 10) .197 .155 .015 .007 .003 .172 -.001 -.058 .337 11) .596 .268 .219 .348 .204 .459 -.005 .062 .478 .199 12) .592 .260 .149 .189 .220 .386 -.006 .109 .414 .232 .536 13) .758 .382 .158 .389 .313 .519 -.055 -.022 .470 .285 .640 .560
* 1. dependent variable 2. is there an injury 3. who is blamed 4. is judicial intervention appropriate 5. current financial status 6. prediction about future financial status 7. time/monetary costs 8. prediction about effect on relations with state government 9. prediction about chances for plaintiff success 10. prediction about the extent of change in financing system from court decision favoring the plaintiffs 11. opinion of general public 12. opinion of local elites 13. opinion of education professionals
N=91
The results of the probit equation are listed in table 47. 241
TABLE 47
RESULTS OF A PROBIT ANALYSIS OF THE MODEL OF THE DECISION MAKING OF SCHOOL DISTRICTS IN REFERENCE TO THE EDUCATION FINANCE LITIGATION IN OHIO
Standard Prob. VARIABLE h Error Chanee
CONSTANT -3.6123 2.2884 Is there an injury 0.5996 0.6016 2.4% Who is blamed -1.4790 1.1007 -3.0% Is judicial intervention appropriate -0.1163 0.6470 -0.8% Current financial status 0.3941 0.3276 2.0% Prediction about future financial status 1.0358 0.5543 2.8%* Time/monetary costs 2.4799 5.1812 3.0% Prediction about effect on relations with state government 0.6250 0.6313 2.4% Prediction about chances for plaintiff success 1.7498 0.7985 3.0%** Prediction about the extent of change in financing system from court decision favoring the plaintiffs -1.3163 0.7194 -2.9%* Opinion of general public 0.6200 0.9208 2.4% Opinion of local elites 1.1891 0.5964 2.9%* Opinion of education professionals 1.2108 0.5798 2.9%**
N=91 Estimated R-squared = .730
** t-statistic significant at the .025 level * t-statistic significant at the .050 level
Of the states in the sample discussed thus far, the model developed in chapter three performs most impressively in Ohio. When no other information is present, one can predict district behavior on the issue of joining the Ohio Coalition 53% of the time, simply by guessing that the district will not join. The model predicts with an accuracy of 94.5%, which is a reduction in error of 88%. 242
Five variables are significant, four of which operate in the predicted direction1*. As
in other states, the opinions of third parties are very important. Education professionals and
local elites express opinions that are significant at the .025 and .05 level respectively. TTieir
ability to independently produce changes in the dependent variable are also relatively strong
(2.9% each). Local decision makers in Ohio are apparently vulnerable to the appeals of third
parties with resources such as expertise and access (education professionals) and political
influence (local elites).
The same cannot, however, be said of general public opinion. As was the case in
Alabama and Arizona, the public seems to have very little influence on the decisions of school
districts in this instance. The probability change score is relatively low (2.4%).
The other variables which are significant and operate in the expected direction are
predictions about the chances for plaintiff success and the financial status of the district under
a more equitable system. As expected, general levels efficacy are important to decisions to join litigation efforts. When a district thinks the litigation is likely to accomplish desired
goals (i.e. gaining a court decision striking down the status quo and/or receiving benefits from
that decision), the district is very likely to join the coalition sponsoring the suit.
Perceptions about the extent of change in the status quo resulting from such a decision
operate in the opposite direction. Contrary to expectations, such perceptions are significant in
a negative direction. It seems that the more districts think (or fear) that changes in the system
of finance will be "substantial", the less likely they are to join the litigation. As discussed in
18. The probability change scores corresponding to each independent variable are small relative to those found in other states. This is largely because there is a fairly even division between plaintiffs and non-plaintiffs in Ohio. This decreases the ability of any single independent variable to produce large changes in the dependent variable. This, of course, is not a concern because the probability scores are used for making comparisons between independent variables within (rather than across) regression equations. 243
previous chapters where this result has also occurred, it may he that the districts likely to
think substantial changes will occur are most likely to suffer negative consequences from such
changes. Districts (mainly property wealthy ones) that benefit from the current financing
scheme may fear that substantial changes will damage their own financial status extensively.
The bivariate analysis indicated that most districts which consider their financial status to be
"very good" or "above average" think that funds will be shifted from some districts to others
and that their own financial status will be negatively affected. Such districts would therefore
be very unlikely to join an effort to alter the status quo.
The variable associated with time and monetary costs also performs relatively well in
terms of the production of change in probability of joining the coalition (3.0%). On the other
hand, the variable associated with the placement of blame operates strongly, yet counter to
expectations. It seems that the districts which blame the state for inequity are Igss likely to join the litigation. 244
MULTIVARIATE ANALYSIS-PART II
TABLE 48
RESULTS OF A PROBIT ANALYSIS OF THE REVISED MODEL OF THE DECISION MAKING OF SCHOOL DISTRICTS IN REFERENCE TO THE EDUCATION FINANCE LITIGATION IN OHIO
Standard VARIABLE b Error I
CONSTANT -5.2232 1.6627 -3.1414 Is there an injury 0.9068 0.3728 2.4323** Who is blamed 0.1154 0.6878 0.1678 Is judicial intervention appropriate 0.3971 0.3818 1.0401 Current financial status 0.2064 0.2008 1.0280 Prediction about future financial status 0.6907 0.2727 2.5325** Time/monetary costs 0.8047 1.2362 0.6510 Prediction about effect on relations with state government 0.8439 0.4572 1.8455* Prediction about chances for plaintiff success 1.2265 0.3789 3.2371*** Prediction about the extent of change in financing system from court decision favoring the plaintiffs -0.1378 0.2905 -0.4742
N=93 Estimated R-squared=.467
*** t-statistic significant at the .005 level ** t-statistic significant at the .010 level ^^^^^^-s^rtisti^signific^m^t^he^05^1eve^
In Ohio (as in the previous three states), the removal of the third party variables increases dramatically the relative importance of predictions about plaintiff success. On the other hand, the importance of the perception of an injury seems to be a phenomenon limited only to Ohio. CHAPTER IX
EDUCATION FINANCE LITIGATION IN VIRGINIA
Virginia’s system of education finance possesses the general characteristics of the systems discussed in previous chapters. The Virginia system is based in large measure on local taxes on property. It subsequently suffers from inter-district disparities in spending per pupil. Like their colleagues in the other states, local educators in Virginia have, over time, become increasingly frustrated with these continuing inequities. This frustration ultimately led to a lawsuit challenging the finance system’s constitutionality.
What makes the Virginia litigation distinctive is the relatively great reluctance on the part of a coalition of local school districts to involve the state courts in the dispute. This reluctance manifested itself in a path to litigation which was inconsistent and erratic.
VIRGINIA’S EDUCATION FINANCE REFORM OF 1987
The foundation for the current lawsuit in Virginia was laid in 1987. For a number of years prior to that, educators in Virginia had complained to the state legislature about disparities in education finance. As in other states, wide gulfs were created by a system which relied heavily upon local property taxes for a substantial portion of Virginia’s education dollars. In an effort to alleviate these concerns, the state legislature moved to enact a new, more equitable finance formula. After extensive research and analysis, the state’s Joint
245 246
Legislative Audit Review Commission (JLARC) proposed a new formula in November of
19871. This proposal was to be debated in the 1988 session of the Virginia General
Assembly, scheduled to begin in January.
Before the state legislature convened, a number of concerns arose within the education community about the new formula. First, JLARC had conducted its research and formulated the funding proposal in an isolated fashion. No input had been solicited from local educators across the state. This created a certain degree of apprehension about the sensitivity of the proposed formula to educator beliefs and concerns. Being locked-out of the process of formulating a new finance method was particularly bothersome to those educators (particularly in low spending districts) whose complaints had given genesis to the commission’s deliberations.
Second, school districts were not privy to any information on the proposed formula prior to its release in November. This provided educators with little opportunity to study the proposal and develop positions on it prior to legislative debate in January of 1988.
Third, in order to appease those who expressed the above concerns, JLARC had promised to provide local school officials across the state with detailed information on the
"inputs" (i.e. relevant education, economic and demographic statistics) upon which the new system was developed. However, as the legislature began its 1988 session, a number of local educators were not satisfied with the information they were receiving2.
As it (the formula) went to the General Assembly, we tried and tried and tried to determine how the formula was put together. What were the inputs? And there was (in JLARC’s
1. JLARC is an agency of the Virginia General Assembly designed to provide statistical analysis and make recommendations on topics at the request of the Assembly.
2. It became apparent that one of the reasons that reports from the state were less than detailed was because the new formula was quite complex. 247
report) in quotes a "black box" and a black box contained all of the inputs and intricacies of the formula but we were never given that.
As the 1988 legislative session unfolded, information about the proposed formula
slowly began to circulate. Some local educators (already deeply suspicious of the proposal
because of the way it was constructed and information about it disseminated) became
increasingly skeptical about the new formula’s ability to alleviate the problem of disparity. A
number of them predicted that the formula would actually exacerbate the problem.
As the new formula was being passed into law, approximately 400 school board
members, city council members, city supervisors and superintendents gathered in Whitley,
Virginia. The meeting was described as a public display of concern about the adequacy of the
new system of finance. Governor Gerald L. Baliles and members of the General Assembly
assured educators across the state that the new formula was solid and would help equalize
binding. Still skeptical, local education officials decided to wait and see if the state’s claims
were true.
VIRGINIA’S SYSTEM OF EDUCATION FINANCE
Over the next two years, educators in low spending districts became increasingly
convinced that the situation in their districts was getting not better, but worse. They had been
able to gather some limited information to support this perspective, but the state continued to
refuse to provide details about the so-called "black box". In 1989, a study of the state’s
system of finance was commissioned by the Virginia Education Association. The organization
requested that Professor Richard G. Salmon of Virginia Tech University (see chapter eight) and Professor Deborah A. Verstegen of the University of Virginia analyze the relative spending of districts across the state and the causes of any existent disparities. The state 248
continued to be uncooperative in the provision of relevant information, making production of
the report difficult. In addition, rumor had it that the state department of education attempted
to put pressure on Drs. Salmon and Verstegen (as employees of state-funded universities) not
to undertake the study. Nevertheless, the report was released on January 26, 19905.
The report showed that the richest school district spends about 2.7 times as much on general education as the poorest - $6,953 a student in Alexandria compared with $2,610 a student in Nottoway County in rural Southside Virginia in 1988-89. That gap was $500 larger than it was in 1987-88, before the formula changed. (Baker, 1990a, p. C l)4
More generally, statistics provided by the Virginia Department of Education indicate
wide inter-district disparities in spending. In 1989-90, the state average spending per pupil
was $45695. Twenty-nine of the state’s 133 districts (for which relevant statistics are
available) spent less than $4,000 per student overall while eight districts spent in excess of
$ 6,000.
Are these disparities related to property value? The Salmon/Verstegen study indicated
that a direct link existed between disparate property values and spending inequities. To
examine this conclusion for the purposes of this dissertation, Virginia’s districts were divided
into four quartiles based upon their property value per pupil. Districts were then compared
based upon spending per pupil. Of the 40 school districts with the highest property values in
3. Because complete information on education finance was not made available to the analysts, their conclusions were necessarily somewhat tentative. However, the study was examined by employees of the state’s department of education, who verified its accuracy (although only for the limited information upon which it was based).
4. These findings are supported by the Educational Testing Service, 1991.
5. According to The World Almanac (1992) this placed Virginia 28th in the country in spending per pupil. 249
the state, 26 (65%) spend above the state average per pupil. On the other hand, only seven
(18%) of the 40 districts where property values are lowest spend above the state average*.
Another way to perceive the relationship between local property value and education
spending is that the 28 districts which spend less than $4,000 per pupil have an average property value of $151,792. The nine districts which spend in excess of $6,000 have an average property value of $538,387 per pupil (with none having property values below
$225,000). The correlation between property value and spending per pupil is .631, indicating a strong relationship between these two variables. For the purposes of this research, there is a link between the state government's system of finance and spending in individual districts.
This means that at least part of the blame for inequity falls on the state.
The next question is whether low spending districts tax at lower rates. Unfortunately, relevant information is not available, so it is not possible to compare property tax rates across districts. Subsequently, it is difficult to determine how much blame for inter-district inequity should attributed to the tax efforts of low spending districts. Of course, the important question for this research is whether districts think low spending districts are to blame (more on this below).
As discussed in previous chapters, a heavy reliance on local revenue sources for education finance increases the likelihood that wide disparities in education finance will exist.
There can be little doubt that the system of elementary and secondary education in Virginia is heavily localized. Localities contribute 61 % of the funds for education. By this measure,
Virginia’s education system is the 6th most localized in the country (Calkins, 1990). The localism in Virginia education is not only strong, but expanding. While most other states saw the local government share of education funding drop in the 1980s, Virginia’s went up 10%
6. The number 40 corresponds to 25% of the districts for which relevant data are available. 250 between 1982-83 and 1988-89 (the second largest increase in the country) (Augenblick et al.,
1990).
This heavy localism, combined with a diverse economic landscape across Virginia, has created an education system which is a dichotomy of sorts. Over the years, the suburbs of Washington D.C. have extended farther into the state’s northern regions. These suburbs are populated largely by affluent professionals who commute to work in the District of
Columbia. The high demand for residential, and subsequently commercial, space in these convenient suburbs has created high property values throughout the region.
The rest of Virginia is relatively less wealthy. In fact, the southwest region of the state (part of America’s Appalachians) is among the poorest areas in the country. Much of the southwest portion of the state is littered with poor and working class cities and low income rural areas. Subsequently, property values are relatively low. The economic cleavage between northern and southwestern Virginia is exacerbated by the fact that most people living in the northern region are migrants from other parts of the country while the rest of state is made up largely of Virginia natives. The poor and working class regions of the rest of the state have become increasingly suspicious of and hostile toward the ever-growing, often extremely affluent suburbs of northern Virginia.
This economic dichotomy is reflected in the state’s diverse school system. The high property values in Northern Virginia provide a solid tax base from which to draw funds for education. Schools in the area are among the state’s strongest and most well-funded7. Other regions in Virginia (particularly the Appalachians) are relatively poor. Subsequently, schools generally spend lower amounts per pupil than northern schools, sometimes dramatically so.
7. For example, of eight districts which spend more than $6,000 per pupil, seven are within 100 miles of Washington D.C. 251
This educational dichotomy is maintained by the heavy localism in the school system.
In addition, the influence of Northern Virginia in the state legislature continues to increase as
the region’s share of the state’s population expands. Legislators from the north have
subsequently been able to block efforts to increase equity in education spending. The fear is
that decreasing disparity would require increased tax burdens on the wealthy suburbs of
Northern Virginia to help fund poorer schools in other regions (more on this below).
FORMING THE COALITION FOR EQUITY IN EDUCATIONAL FUNDING
The Salmon/Verstegen report was released in 1990 as a new governor, L. Douglas
Wilder, was taking office. He immediately announced the formation of a commission to
study the problem of inequity (called the Governor’s Commission on Educational Opportunity
for All Virginians). At the same time, a number of legislators were expressing the desire to
reassess the finance formula instituted in 1988. These new state-level discussions took place
against the backdrop of recent successful litigation in neighboring Kentucky and other states
and pending litigation in dozens of others. Rumors began circulating that Virginia would
soon be the target of a similar suit8.
At this same time, the school board of the Alleghany-Highlands County School
District was completing work on their budget for the next fiscal year. The bleakness of the district’s financial situation spurred the superintendent, Dr. Martin Face, to discuss the state’s education finance method with Dr. Salmon and Dr. Kern Alexander (also of Virginia Tech — see chapter eight). The meeting produced the idea of organizing school districts into a
8. The state’s attorney general and Dr. Salmon publicly disagreed about whether the state’s system of finance was constitutional (Baker, 1990a). 252 coalition for the purpose of changing the current finance method, possibly through legal action. This idea was presented to a small group of superintendents who agreed on the appropriateness of the organization.
In March of 1990, a letter was sent by Dr. Pace to the superintendents of every school district in Virginia. The letter expressed concern about the current finance method and argued that a coalition of school districts would be an effective organization for pursuing finance reform. The letter also indicated that if no other method produced success, a lawsuit would be pursued. In April of 1990, a meeting of school districts from across the state ultimately produced an organization called the Coalition for Equity in Educational Funding
(hereinafter referred to as "the Coalition").
The Coalition was formally established on May 1, 1990. The group indicated in its position paper that its goal was to work toward a legislative solution to the problem of inequity. In reference to a potential lawsuit, a second document circulated by the Coalition stated
In many states, inaction and unwillingness by legislative bodies to deal with this problem has forced groups like the Coalition into court action. The members of the Coalition, however, are hopeful that the normal legislative processes in Virginia will be sufficiently responsive in alleviating the problem that judicial action will be unnecessary. The members of the Coalition are, though, resolute in their objective and will take whatever action is ultimately necessary to resolve the funding problem in a timely and reasonable fashion.
The Coalition’s expressed desire to reach a legislative solution was met with some skepticism.
The group involved in developing the coalition gave a great deal of information that was not true in the initial stages of the process...The leaders set out to litigate in the very beginning when many affected thought the problem could be solved without going to court. (VA-1)
The Coalition submitted a good deal of information to the Governor’s Commission as it studied finance reform (see above). At the time the Commission was formulating recommendations, Virginia was experiencing a recession. This economic slowdown decreased state revenue collection, causing budget shortfalls. Wilder had run for governor promising to 253 hold the line on taxes, making budget cuts necessary. The governor announced in August of
1990 that he was going to cut state aid to elementary and secondary education by as much as
5% in an attempt to balance the state’s budget (Harris and Baker, 1990a). Wilder did, however, make a commitment to attempt to shield poorer districts from the brunt of these cuts.
In November of 1990, the Governor’s Commission released its recommendations. In general, the commission recommended that the formula for allocating state tax revenue place more emphasis on a district’s ability to pay. In addition, it recommended transferring as much as $85 million from wealthy school districts in Northern Virginia to poorer districts in the southern part of the state. This "Robin Hood" approach immediately created opposition to the Commission’s recommendations across Northern Virginia.
For its part, the Coalition reacted cautiously to the recommendations. First, many members argued that the money would simply not be enough (Baker, 1990b). Second, the recommendations of the Commission were generally very vague, providing few details on how money was to be collected and spent. Third, and perhaps most critical, was the
Coalition’s long-standing opposition to "leveling down" (the process of creating equity by reducing the level of spending in wealthy districts). Opposition to such a solution was part of the Coalition’s larger strategy to maintain broad public support for greater spending equity
(see chapter eight).
Friction between wealthy districts in the north and poor districts in the southwest increased the following month when the governor announced the details of his plan to cut state funds to primary and secondary education by $101.4 million dollars. Nearly one-third of the cuts would be made in allocations to wealthy school districts in Northern Virginia
(Baker and Harris, 1990). As the 1991 legislative session began, it appeared that any attempt 254
to deal with disparity was going to be difficult, if not impossible, in a time of budget austerity
and deep divisions among local districts.
Almost inevitably, the 1991 legislative session produced no major finance reform.
Members of the Coalition met with Governor Wilder and Education Secretary James W. Dyke
in March in an effort to gain specific commitments that something would be done in the near
future to alleviate disparities. According to the Coalition, the governor did not provide any
specific program to increase equity at the meeting. However, he did promise to have a
specific blueprint for finance reform prepared by the end of the summer.
Privately, the members of the Coalition expressed skepticism that any plan would be
produced. This doubt, combined with a perceived need to prove the seriousness of the
Coalition’s efforts, led members of the organization to vote unanimously on April 19, 1991 to
commence a lawsuit against the state. The Coalition retained former state attorney general
Andrew P. Miller as counsel. However, the Coalition also voted at that time to withhold
filing the suit until September 13. This would provide the governor with an opportunity to
propose a specific plan.
The Coalition’s skepticism was confirmed when the governor failed to meet the
September deadline for producing what the Coalition considered an adequate plan. However,
in the interim, the Virginia Board of Education had voted to approve $90 million dollars in
additional spending in poor districts as part of their budget recommendations to the governor
and legislature. The recommendations were to be discussed in the legislative session in
January of 1992 (O’Harrow, 1991).
The steering committee of the Coalition issued the following press release on
September 17, 1991:
The Coalition for Equity in Educational Funding Steering Committee voted on Tuesday, September 17, 1991 to file but not serve suit against the Commonwealth of Virginia...to 255 enforce provisions of the Virginia Constitution to provide an equitable system of education for all elementary and secondary education students throughout Virginia. The decision to file suit grew out of a unanimous vote by the coalition on April 19 to file suit unless by September 13 the governor announced recommendations to the General Assembly that, in the judgement of the steering committee, go beyond the Commission’s (on Educational Opportunity for All Virginians) report and provide a detailed blueprint for the elimination of the aforesaid severe financial disparities, including an identification of the resources to be used to implement such blueprint...Such a blueprint has not been announced by the governor. The decision not to serve the suit at this time was made in order to allow the governor and General Assembly to make a good-faith effort to resolve the disparities during the 1992 General Assembly. The decision was based on what is viewed by coalition members as a good-faith effort by the Board of Education in its recently approved budget initiatives for the 1992-94 biennium and in a commitment made by the secretary of education.
A complaint was filed in Richmond circuit court on November 20, 1991 on behalf of the
Coalition’s membership (31 local school districts).
A number of state officials sympathetic to the need for equity immediately began to negotiate with the Coalition to have the suit withdrawn. There was a concern that the legislature may ultimately refuse to address the problem of equity because of the suit. This fear was based upon perceptions that the lawsuit (or threat of it) may 1) irritate members of the General Assembly to the point of intransigence and 2) provide a convenient excuse to avoid discussing the problem until a court decision was made (Baker, 1992a).
On January 3, 1992 the Coalition withdrew the lawsuit. In its press release, the organization cited
...the strong commitment made by Senator Stanley Walker, chairman, and other members of the Commission to Review Recommendations on Educational Opportunity to take action to correct the disparities in education in Virginia...Senator Walker said, "The commission recognizes the disparities that exist in education." He pledged, "The commission will develop proposals, and the General Assembly will take action to correct the disparities."
The Coalition purposefully avoided any praise or expression of confidence in the governor or secretary of education. Relations between the Coalition and Wilder had been tense since the Coalition’s formation and had deteriorated over time. Wilder had publicly expressed negative feelings about the lawsuit and its proponents on a regular basis. He was 256
angered by the lack of confidence the Coalition seemed to have in his ability to solve the
problem. The governor also resented the Coalition’s use of the threat of a lawsuit to achieve
their goals9. "Both he (the Virginia Secretary of Education) and the governor have declared
a ’scorch earth’ program against the coalition...They declared the litigation as a ’slap in the
face’." (VA-2) For its part, the Coalition became increasingly disgruntled with what it saw as
the governor’s hostility and persistent lack of action on the problem of disparity.
Governor Wilder released his plan for alleviating disparity on January 9, 1992.
However, the plan was immediately attacked by legislators and Coalition members as lacking
specifics on how it would pay for the proposed changes in the structure of education finance
(Anderson and Harris, 1992). The General Assembly and the governor eventually agreed on
a plan to spend approximately $40 million annually to alleviate disparities in spending. The
Coalition defined the plan as inadequate. On April 9, 1992 the Coalition again voted to bring
a suit against the state10. The Coalition’s attorney, Andrew P. Miller, stated, "I can assure
you the coalition is in it for good." (Harris, 1992, p. C3)
The suit argues that the system of finance in Virginia violates the state’s constitution.
At issue are the Virginia constitution’s education clause, which reads:
The General Assembly shall provide for a system of free public elementary and secondary schools for all children of school age throughout the Commonwealth.
and the state’s bill of rights, which says:
That free government rests, as does all progress, upon the broadest possible diffusion of knowledge, and that the Commonwealth should avail itself of those talents which nature has sown so liberally among its people by assuring the opportunity for their fullest development by an effective system of education throughout the state.
9. Part of Wilder’s animosity also seemed to stem from the lawsuit’s implications for his active campaign for the Democratic nomination for President in 1991-92.
10. Four more districts joined the original 31 members of the Coalition when the suit was re-filed. 257
The state subsequently filed a motion to dismiss the suit. Oral arguments on the state’s
motion began on September 13, 1992. In November, Judge Marvin Hughes decided in favor
of the state. The Coalition appealed the decision directly to the Virginia state supreme court.
As of June 1, 1993 the court had not decided whether to accept the case.
B1VARIATE ANALYSIS
Surveys were sent to superintendents in each of the state’s 137 local school districts.
When the Coalition made the decision in April of 1992 to refile the lawsuit, the organization
was made up of 35 local school districts. Twenty-four of the 35 Coalition members
(hereinafter also referred to as "plaintiffs") responded to the questionnaire. This yielded a
response rate of 68.6% Sixty-three (64.3%) of the other districts in the state (hereinafter also
referred to as non-plaintiffs) responded. The overall response rate was 65.4%".
Step One: Recognition of Injury
As expected, plaintiffs were more likely to attach importance to equity in education
spending across school districts. Ninety-six percent of plaintiffs defined equity as "very
important" or "important". Eighty-two percent of non-plaintiffs did so. In general, then, there is a good deal of consensus among districts that a lack of equity causes injury to low spending districts.
It has been argued throughout this research that the dispute over education finance ultimately hinges upon the connection between spending and educational opportunity. This
11. There was a slight relationship between financial status (defined as property value per pupil) and likelihood of response. Relatively poor districts were somewhat more likely to respond than wealthy ones (correlation =.179). 258 research does not require an in-depth analysis of this linkage. Rather, the importance of money to education for this research lies in the perceived link between the two on the part of respondents. If no link exists, disparity in spending is not a problem and there is no consequent dispute.
A genera] consensus that equity is important has been a recurring theme throughout the five states in the sample. However, there have been those respondents who call into question the notion that equal spending is necessary.
The only factor that the "coalition" seems to have considered has been "monies spent per pupil" in the various districts. I do not feel that such a measure is valid in view of the many things that affect such spending, i.e. administrative costs, effort of locality, difference in cost of living in various parts of the state, programs that are not necessarily needed in some areas of the state. (VA-3)
Step Two; Attribution of Blame
Because of the general consensus in Virginia on the need for financial equity, it is reasonable to assume the existence of agreement across districts that disparity in spending is a problem. The question therefore is not whether an injury exists but, rather, who is to blame.
As in other states, at one end are those who blame low spending districts:
Some of the localities who are involved in the coalition do not pay their fair share of the education of their children. One district which was the leader pays about 35% of the total operation of its’ schools. These people need to look closer to home for funding first. (VA-4)
The funding issue is multi-faceted. Many school divisions involved in the suit do not have local funding that is commensurate with the state effort. (VA-5)
At the other end are those who blame the property tax-based finance system created by the state.
We believe that every child in the state should be afforded equal educational opportunities irregardless of the geographic area in which the child resides...The demographics of a county should not deprive a child of equal educational opportunities. The state has a responsibility to see that this does not occur. (VA-6) 259
Disparity exists in Virginia and the funding formula needs to be changed. The state has the responsibility to provide all children with an education regardless of birthplace. (VA-7)
Then, of course, there are those in the middle.
I feel that the fault for the current situation rests with local governing bodies who are afraid to raise taxes and with the state government for inadequate funding...(VA-8)
A look at the data reveals that the vast majority of districts in Virginia (plaintiffs and non-plaintiffs) initially fall into the third category. Sixty-seven percent of plaintiffs and 66% of non-plaintiffs think that both local districts and the state are to blame. When pushed to choose a single culprit, 93% of plaintiffs which initially blame both actors think that the state is more to blame. Fifty-six percent of non-plaintiffs in the third group blame the state as well. These results fit generally with expectations of the model developed in chapter three, although the high percentage of non-plaintiffs blaming the state is somewhat surprising.
Step Three: Acknowledgement of Court Relevance
Perhaps the most fascinating question in Virginia’s dispute over education finance is the issue of whether litigation or lobbying is the most effective method to combat the problem. As described above, there have been numerous attempts since 1987 to achieve a legislative solution to inequity. The perceived potential for such a solution has fluctuated, causing an inconsistent message from the Coalition about the appropriateness and necessity of litigation. The relatively short life-span of the Coalition has been defined by: 1) an initial decision to forego litigation and instead lobby the legislature and the Governor’s Commission on Educational Opportunity, 2) a threat to file a lawsuit pending concrete proposals from the governor, 3) a decision to file a lawsuit but not serve it pending legislative action in the 1992 session of the General Assembly, 4) a decision to withdraw the lawsuit because of promises of 260 finance reform from members of the legislature, and 5) a decision to re-file the lawsuit because of a lack of adequate legislative action.
Against the background of these events, no members of the Coalition currently believe that lobbying is the most appropriate method for achieving equity. On the other hand, only
15% of non-plaintiffs think that litigation is the most reasonable approach. It is interesting that plaintiff and non-plaintiff school districts have such divergent perceptions about the events which occurred prior to the filing of the current lawsuit and their implications.
Virginia’s system of funding elementary and secondary education has been meticulously contrived to reward with state funds large, powerful, and affluent school systems. "Grid lock” at the executive and legislative branches of government assures that this injustice...will continue unless struck down by the courts. (VA-9)
The current state legislature is looking at the disparity issue and has allotted more funding to districts exhibiting the greatest need. There is a commitment to continue to equalize the funding so that all school districts benefit. I feel that the Coalition would be counterproductive and we would lost the support of the legislature. (VA-10)
What about court involvement in education more generally? Respondent perceptions of the propriety of judicial intervention are listed in table 49. 261
TABLE 49
ATTITUDES IN VIRGINIA ABOUT THE PREFERRED LEVEL OF JUDICIAL INVOLVEMENT IN DISPUTES IN PARTICULAR AREAS OF ELEMENTARY AND SECONDARY EDUCATION (Percentage of all districts with particular preferences)
Always/ Rarely/ Generally Sometimes Never
Codes of conduct 2% 18% 80% Disciplinary practices 2% 39% 59% Equal opportunities for women students 4% 48% 48% Religious practices 8% 46% 46% Employment practices 4% 56% 40% Education finance 15% 60% m Services for handicapped students 11% 65% 24% Racial integration 16% 64% 20%
N = 85
Virginia respondents tend to be relatively hostile to judicial involvement in most areas of education. Why is this the case? The leadership of the Coalition expressed the belief that a number of districts did not join the litigation because it was simply "not the Virginia way".
As one respondent put it, "People in my district are basically conservative folk who are not inclined to sue at all, much less the state." (VA-11) The conservative political and cultural traditions of the state seem to gravitate away from activities, like litigation, that are adversarial in nature.
Is there a difference between plaintiffs and non-plaintiffs? 262
TABLE 50
PERCENTAGE OF PLAINTIFF AND NON-PLAINTIFF DISTRICTS IN VIRGINIA THAT BELIEVE THE JUDICIARY SHOULD "RARELY OR NEVER" BE INVOLVED IN DISPUTES IN AREAS OF EDUCATION
Plaintiff Non-Plaintiff
Codes of conduct 83% 79% Equal opportunities for female students 67% 41% Disciplinary practices 58% 59% Religious practices 58% 41% Services for handicapped students 42% 18% Employment practices 38% 41% Racial integration 38% 12% Education finance 8% 30%
N = 85
L — —
The table reveals an interesting pattern. On most issues, plaintiffs are more hostile to judicial involvement than are non-plaintiffs. In some instances, such as equal opportunities for female students and services for handicapped students, the differences are substantial. Why? The general level of hostility to judicial intervention into education in Virginia may be a function of the state’s conservative culture. It seems reasonable to suspect, then, that native residents of the state would be more likely to take a negative view toward court involvement in education.
Many of the people living in Northern Virginia are not native Virginians (see above).
The perceptions of decision makers in the region’s school districts are perhaps not as influenced by Virginia’s conservative culture (at least not to the same extent as school districts in the southern and western parts of the state, where relatively more native Virginians reside).
The weakened influence of Virginia conservatism on districts in Northern Virginia may 263 therefore be reflected in the responses of non-plaintiffs. The school districts of Northern
Virginia, generally among the state’s wealthiest, are not likely to be members of the
Coalition. In fact, only two of 31 Coalition members are located in what may be generally defined as Northern Virginia (within 100 miles of Washington D.C. — more on this below).
This may explain why non-plaintiffs, generally speaking, are more welcoming to judicial involvement into education-related disputes.
However, the issue of education finance does not fit within this general pattern. As expected, plaintiffs are much less hesitant to allow the courts to become involved in this area of education. Beyond the expectations developed in chapter three, these results make a good bit of sense because district wealth, and therefore district finance, is something that separates
Northern Virginia (likely to be non-plaintiffs) from the rest of the state, where most plaintiffs are located.
Consideration of Costs
When the original decision to file a lawsuit was made in April of 1991, the
Coalition’s leadership sent a letter to each member district stating
Total cost for the suit is not expected to exceed $4 or $5 per student in ADM over a three- year period. This estimate is based on what suits have cost in other states and the total number of students represented by members of the coalition. To date, assessments have totaled $1.50 per student1*.
As in other states, this monetary cost did not appear to be dissuasive. No plaintiffs and only
10% of non-plaintiffs considered such costs to be "substantial". Time costs were not a factor either.
12. ADM = Average Daily Membership (a measure of student enrollment) 264
The important cost in Virginia seems to be associated with relations with state government. According to the leadership of the Coalition, when the suit was re-filed in 1992
There’s some in the General Assembly I’m sure who will be very offended. There were some who appeared to take that stance when we filed last fall. Many in the General Assembly, I think, will welcome the suit, at least privately...(but) we haven’t picked up on the overt hostility from the General Assembly over it that we have from the governor and secretary of education. They have been very defensive, apparently taking it personally and been offended that we’re filing it...They have been able to get legislators to exert their influence in their localities to get the localities not to participate.
Fear of potential repercussions from the governor’s hostility is reflected in respondent predictions about the effect of joining the Coalition on relations with the state. There was a great deal of concern among school districts about taking action which is tantamount to
"biting the hand that feeds you." (VA-12) Forty percent of both plaintiffs and non-plaintiffs predicted that their relationship with the state would be damaged in some fashion by joining the Coalition. While apprehension about damage to the relationship was relatively wide spread, this fear does not appear to influence decisions about whether to join the Coalition.
What form would the damage take? Plaintiffs were particularly concerned about two things. First, they feared less cooperation from the state on education issues. The second concern was that local districts would have less political leverage in dealings with the state.
No single form of retaliation stood out among non-plaintiffs.
Consideration of Benefits
Are poor districts in Virginia more likely to join the Coalition for Equity in
Educational Funding? 265
TABLE 51
RELATIONSHIP BETWEEN SUBJECTIVE EVALUATIONS OF FINANCIAL STATUS AND THE DECISION TO BECOME A PLAINTIFF IN VIRGINIA
Evaluation of status Plaintiff Non-Plaintiff
Very good 11% 89%
Above average 5% 95%
Average 13% 87%
Below average 67% 33%
Poor 67% 33%
N = 86
•
It will be recalled that approximately one-fourth of the state’s 137 districts became members of the Coalition. As table 51 shows, the relationship between district perception of individual financial status and the decision to litigate is very strong (Tau-B=.461).
The same can be said when comparing an objective measure of financial status
(property value per pupil) and the decision to litigate (Tau-B = .332). 266
TABLE 52
PERCENTAGE OF DISTRICTS WITHIN EACH QUARTILE (BASED ON VALUE OF PROPERTY PER PUPIL) THAT BECAME PLAINTIFFS IN VIRGINIA
District Status* Became plaintiffs
First quartile 5.9%
Second quartile 21.2%
Third quartile 27.3%
Fourth quartile 51.5%
N= 133
* The first quartile represents the districts that are in the highest 25% of districts in terms of property value per pupil.
The relationship between participation and financial status described in tables 51 and 52 is inevitably linked to geography. As discussed above, the wealthiest school districts in the state tend to be located in Northern Virginia. This is because the suburbs around Washington D.C. have some of the highest property values in the United States. Subsequently, schools in these areas have strong tax bases. The rest of Virginia, particularly the southwestern region, is very different. There are a number of areas where property values are very low, making it difficult for school districts located there to raise sufficient revenue for schools.
This economic dichotomy is reflected in the make-up of the Coalition. Districts which are suing the state to alter the disparate status quo are located primarily in the southwestern part of the state. In fact, of the 22 southwestern-most school districts of the 267 state, 21 are members of the Coalition. On the other hand, only two of the school districts located within 100 miles of Washington D.C. are members.
Efficacy
As expected, plaintiffs are much more optimistic than non-plaintiffs about the chances for the litigation’s success in court. Twenty-five percent of plaintiffs were sure of victory while an additional 58% thought that the Coalition "might win". Among non-plaintiffs, only one respondent (out of 59) was sure the litigation would be successful and 8 more thought the chances were good.
Plaintiffs responded to a variety of influences in coming to conclusions about the likelihood of success. As in other states, the most important factor among plaintiffs (71%) was a study of the education system (in Virginia provided by Dr. Richard Salmon -- see above). It seems that studies of the respective education systems were relatively more important among plaintiffs in Ohio and Virginia than in the other three states. This may partially be a function of the fact that the legislatures in both states had placed equity in education spending at the top of their agendas as lawsuits were being contemplated. This probably created greater publicity of studies on the subject. It may also reflect a greater effort on the part of the litigation coalitions in these states to circulate the findings of commissioned studies. Finally, the national reputations of Drs. Salmon and Alexander as experts in the field of education finance probably lent additional credibility to the findings.
A large number of plaintiffs (58%) also relied heavily on the previous decisions of other state courts. Al] of the plaintiffs who referred to cases from other states mentioned
Kentucky’s from 1989. This result probably owes it existence to the geographic proximity and recency of the case. Most plaintiffs mentioned the 1989 decision in Texas as well. 268
In terms of the changes resulting from a court decision in favor of the plaintiffs, nearly all Coalition members (91%) were hopeful that at least "moderate" (if not
"substantial") changes in the finance system would occur. Sixty-eight percent of non-plaintiffs agreed. The economic and geographic dichotomy of the state (described above) and the subsequent differences between plaintiffs and non-plaintiffs is perhaps best indicated by respondent predictions about the nature of these changes. The results are in table 53.
TABLE 53
PERCENTAGE OF PLAINTIFFS AND NON-PLAINTIFFS IN VIRGINIA THAT ANSWERED AFFIRMATIVELY TO THE FOLLOWING QUESTIONS CONCERNING THE PREDICTED RESULTS OF A COURT DECISION FAVORING THE PLAINTIFFS
Plaintiff Non-Plaintiff
Will all districts in the state benefit? 37.5% 4.9%
Will funds be shifted from some districts to others? 33.3% 54.8%
Will spending in your district increase? 83.4% 25.8%
N = 86
As in other states, plaintiffs are a good deal more optimistic than non-plaintiffs that the benefits of a more equitable system will be spread throughout the state. Most non-plaintiffs predicted that either only poor districts would benefit (38%) or that the impact would be largely random (34%).
Given the political context in which the suit developed, it is not surprising that most non-plaintiffs were concerned that funds would be taken from some districts and given to 269 others. It will be recalled that one of the recommendations made by the Governor’s
Commission on Educational Opportunity was to shift large sums of money from Northern
Virginia school districts to others. In addition, Governor Wilder’s 1990 plan to cut the state budget deficit reduced state spending in Northern Virginia districts dramatically. Most non plaintiffs seem to think that these events were precursors of things to come if the courts decide to strike down the current system of finance.
Finally, as expected, plaintiffs were much more likely than non-plaintiffs to predict that their own financial status would improve under a more equitable system. There seem to be relatively few non-plaintiff districts who thought, as one respondent put it "Why pay to join; if they win we will benefit without spending any of our money." (VA-13) More generally, there does not appear to be much of a free-rider problem, based upon the definition detailed in chapter five. Only three non-plaintiffs met all of the criteria for being considered free-riders.
Third Parties
Table 54 presents the level of opinion among third parties in the school districts of
Virginia. 270
TABLE 54
PERCENTAGE OF DISTRICTS IN VIRGINIA THAT REPORTED THAT EACH THIRD PARTY HAD AN OPINION ABOUT DISTRICT INVOLVEMENT IN THE LITIGATION*
Third Party Plaintiff Non-Plaintiff
Local government officials 100% 52% School administrators 96% 45% State legislators 92% 53% Teachers 75% 18% Business/civic leaders 71% 31% Parents 63% 15% General public 52% 16% School district attorney 50% 17% Interest groups 17% 2%
N=86 (for all third parties except school district attorneys, where N=68)
* The table represents the number of respondents who, in reference to each particular third party, answered that the party a) favored, b) was evenly divided or c) opposed joining the Coalition.
Third parties in Virginia are quite opinionated on the issue of joining the education finance
lawsuit. In fact, some third parties have levels of opinion higher than their counterparts in
New Hampshire (more on this below).
As in other states, education professionals are quite active in Virginia. This is true
for superintendents in plaintiff and non-plaintiff districts and teachers in plaintiff districts.
Previous chapters have alluded to forces such as 1) relatively high levels of information which
allow for the development of opinions and 2) greater access to decision makers which allows for the expression of those opinions.
What is particularly interesting about Virginia school districts is the relatively high level of involvement among so-called "local elites" (i.e. local government officials, business 271 leaders and state legislators). All three have very high levels of opinion in plaintiff districts.
The same can be said for local government officials and state legislators in non-plaintiff districts.
Why are these individuals apparently more active in Virginia than in other states?
The reason local government officials are more involved is straightforward. Under Virginia state law, boards of supervisors are the spending authorities for local governing bodies.
These boards must therefore approve local school district expenditures of public funds.
Because membership in the Coalition required a fee ($1.50 per student), boards of supervisors were inevitably involved in all plaintiff districts. These boards may have also been important in a number of non-plaintiff districts, either by offering opinions to the school boards before a decision on the litigation was made or by voting against spending money for that purpose13.
This, however, does not explain why other local elites are so heavily involved. As described above, finance reform has been on the legislative agenda for some time. This probably increased the level of interest legislators had in their school districts and decisions about the Coalition. For example, when the Coalition initially filed the lawsuit (but did not serve it) at the end of 1991, a number of legislators approached the organization in an attempt to get the suit withdrawn. There were legislators who were in philosophical agreement with the Coalition, but opposed using litigation to achieve a solution (see above). There were also those who simply opposed the litigation and its goals. Legislators in these two categories would therefore be likely to lobby their school districts against joining a coalition that threatened to file a lawsuit on the issue. In fact, of the districts (plaintiff and non-plaintiff)
13. There were, in fact, some non-plaintiffs who said that the only reason they did not join was an inability to persuade the board of supervisors to allocate the necessary funds. 272 who stated that their legislators expressed an opinion on the issue of joining the Coalition,
72% said the legislator was opposed.
Finally, and perhaps most importantly, the political traditions of Virginia are defined by the power of state and local elites. What V.O. Key described 40 years ago continues today, although in a somewhat less robust form.
Of all the American states, Virginia can lay claim to the most thorough control by an oligarchy. Political power has been closely held by a small group of leaders who, themselves and their predecessors, have subverted democratic institutions and deprived most Virginians of a voice in their government. (Key, 1949, p. 19)
The level of activity of elites in the decision of whether to join the litigation may simply reflect the perpetuation of the elitism in local government which Key described.
It is interesting that one thing that has distinguished the results of previous chapters from past literature on litigation decisions has been the role played by attorneys. Research on litigation generally portrays attorney advice as prominent and influential. In the other states in the sample, however, the attorney’s role was negligible. This is not the case in Virginia.
Half of the plaintiff districts report that their attorneys had opinions. Why Virginia differs in this respect is difficult to explain.
It is worth considering the similarities (and differences) between New Hampshire and
Virginia on the question of third party opinions. 273
TABLE 55
PERCENTAGE OF ALL DISTRICTS IN EACH STATE THAT REPORTED THAT EACH THIRD PARTY HAD AN OPINION ABOUT DISTRICT INVOLVEMENT IN THE LITIGATION*
Third Partv Virginia N.H,
School administrators 59% 58% Teachers 34% 36% Local government officials 66% 54% State legislators 64% 38% Business/civic leaders 42% 32% Parents 28% 35% General public 26% 45% II -j Z N = 86 oo
* The table represents the number of respondents who, in reference to each particular third party, answered that the party a) favored, b) was evenly divided or c) opposed joining the Coalition.
In comparing these two states, an interesting pattern develops. Education professionals in
Virginia and New Hampshire have levels of opinion which are virtually identical. The
general public and parents have higher opinion rates in New Hampshire while local elites are
more active in Virginia. This may reflect the levels of involvement in policy decisions of
these categories of third parties more generally. New Hampshire, with its rich democratic
traditions, provides the context in which the general public will be active in public policy decisions. The results from Virginia indicate a more elite-centered form of local government.
Attention now turns to the relevance of the decisions of other districts. The results are in table 56. 274
TABLE 56
PERCENTAGE OF ALL PLAINTIFFS AND NON-PLAINTIFFS IN VIRGINIA THAT CONSIDERED THE DECISIONS OF OTHER SCHOOL DISTRICTS
Type of district referred to Plaintiff Non-Plaintiff
Districts possessing students with similar demographic characteristics 67% 15% Districts in same region 63% 16% Districts possessing similar spending levels 58% 15% Districts in neighboring county 50% 18% Districts with a reputation for educational leadership in the state 8% 7% Districts where decision makers in your district have personal contacts 4% 5% Districts in same county 4% 0%
N =85
Virginia is distinguished from other states in the sample by the relatively high level of
importance attached by plaintiffs to the decisions of other districts. Eighty-eight percent of
plaintiffs stated that they paid attention to the decisions of at least one other district. Table 56
indicates that the most important criteria for selecting whose decisions to consider were, not surprisingly, demographics, spending levels and geography. As discussed earlier, there is a heavy geographic bias in the membership of the Coalition. Most of the districts involved come from the Appalachian region of the southwest. This is because the districts in the region share a number of characteristics, including the value of property within their jurisdictions. It is not surprising, then, that on a question such as the one studied here, districts in the region would pay attention to each other. On the other hand, as in other states, non-plaintiffs do not appear to consider the decisions of their counterparts. 275
Finally, the question of third party influence is analyzed through the use of
correlations (table 57).
TABLE 57
CORRELATION BETWEEN THIRD PARTY OPINION AND THE DECISION OF LOCAL SCHOOL DISTRICTS ON WHETHER TO BECOME A PLAINTIFF IN VIRGINIA
Local government officials .720 School administrators .703 Teachers .675 Parents .642 Business/civic leaders .622 School district attorney .524 General public .522 State legislators .517
N = 85
In general, third party opinions are in fairly high agreement with the ultimate decisions of
their districts. It is interesting to note, however, that, as in other states, the state legislators
are the least influential according to this measure. This may reflect the argument made in previous chapters that the opinions of legislators are given less credence because they are perceived as state, rather than local, actors. This can be very detrimental in a system where government is fairly localized. On the other hand, local elites such as government officials and business leaders, have relatively high levels of influence.
The preceding bivariate analysis shows that seven independent variables have some relationship to distinctions between plaintiffs and non-plaintiffs in Virginia: 1) the placement of blame distinguished plaintiffs and non-plaintiffs, 2) perceptions about the appropriateness of 276 judicial intervention was important, 3) perceptions of current financial status, 4) perceptions of the chances for plaintiff success, 5) predictions of the potential for substantial alteration in the financing system, 6) predictions about future financial status and 7) the opinions of third parties.
MULTIVARIATE ANALYSIS
Table 58 lists the intercorrelations of the dependent and independent variables. 277
TABLE 58
INTERCORRELATIONS AMONG THE DEPENDENT AND INDEPENDENT VARIABLES IN VIRGINIA*
10 11 12
2) .357 3) .387 .143 4) .639 .325 .383 5) .466 .284 .169 .534 6) .559 .372 .233 .504 .469 7) .153 -.117 .008 .206 .104 .216 8) .051 -.085 -.211 -.033 -.074 -.026 .265 9) .589 .226 .237 .488 .156 .472 .219 .187 10) .262 .047 .225 .104 -.051 .271 .161 .076 .245 11) .545 .239 .212 .588 .356 .390 .019 .034 .537 .247 12) .779 .285 .234 .555 .415 .441 .124 .202 .558 .308 13) .774 .429 .256 .663 .493 .561 .104 .097 .632 .261
* 1. dependent variable 2. is there an injury 3. who is blamed 4. is judicial intervention appropriate 5. current financial status 6. prediction about future financial status 7. time/monetary costs 8. prediction about damage to relations with state government 9. prediction about chances for plaintiff success 10. prediction about the extent of change in financing system from court decision favoring the plaintiffs 11. opinion of general public 12. opinion of local elites 0 13. opinion of education professionals
N = 74
— - . - - - — ......
The table shows a very high correlation between the opinions of local elites and education professionals. For the purposes of the multivariate analysis, these variables are collapsed into one. The results of the probit analysis are listed in table 59. 278
TABLE 59
RESULTS OF A PROBIT ANALYSIS OF THE MODEL OF THE DECISION MAKING OF SCHOOL DISTRICTS IN REFERENCE TO THE EDUCATION FINANCE LITIGATION IN VIRGINIA
Standard Prob. VARIABLE h Error Change
CONSTANT -6.2454 4.3135 Is there an injury -0.2809 0.7415 -7.8% Who is blamed 2.5787 1.4906 23.6%** Is judicial intervention appropriate -0.0747 1.3554 -2.2% Current financial status 0.7635 0.6486 16.8% Prediction about future financial status 0.0557 0.5501 1.9% Time/monetary costs -0.2950 1.2852 -8.3% Prediction about effect on relations with state government 0.5624 0.7019 13.6% Prediction about chances for plaintiff success 1.8909 1.1560 23.2%* Prediction about the extent of change in financing system from court decision favoring the plaintiffs 0.7966 0.7459 16.3% Opinion of general public -0.8017 0.9463 -17.3% Opinion of third parties 1.1171 0.5169 20.4%***
N=72 Estimated R-squared=.762
*** t-statistic significant at .025 level ** t-statistic significant at .050 level * t-statistic significant at .100 level
—
When the lawsuit was filed in Virginia, 35 of the state’s 133 school districts were members of
the Coalition. Therefore, with no other information, one could predict district decisions with
an accuracy of 73.7% simply by guessing that the district would not join. The model predicts district behavior with an accuracy of 93% (a reduction in error of 75%). 279
Seven of the 11 variables in the model operate in the predicted direction. Of these, three are significant. The cumulative variable associated with the opinions of specific third parties (i.e. teachers, administrators, local government officials, local business leaders and state legislators) performs strongly (significant at the .025 level) and independently produces a change in the probability of the district joining the Coalition of 20.4%. Local school district decision makers in Virginia are apparently susceptible to the influence of elites in their communities. This reflects the political traditions of the state which accentuates the power of elites in government decision making (see above).
As in all other states but New Hampshire, the general public in Virginia is not very influential. In fact, public opinion appears to have a negative impact upon the decisions of their districts. An examination of the data reveals that the public often supported membership in the Coalition in districts that ultimately decided against joining14.
The perception of who is to blame for disparity is very important. As expected, when blame is placed primarily upon the state, districts become very likely to join
(change=23.6%). The other significant variable is associated with predictions about the chances for plaintiff success in court. Plaintiffs are much more likely to think the Coalition will win. This supports the notion that litigants in policy-centered cases, like political actors in general, are more likely to take action if they predict that it will be productive.
Perhaps most interesting about Virginia’s litigation is that current financial status has a relatively high level of influence, independently producing a change in the dependent variable of 16.8%. Unlike the other states in the sample, current financial status is important. It is surprising that this variable shows so little influence in other states, given its centrality to the
14. It is important to note, however, that the general public lacked opinions in the majority of districts. 280 dispute. The economic and political diversity of Virginia perhaps sets it apart in terms of the financial context it provides for litigation decision making.
In addition to the opinion of the general public, three other variables (recognition of injury, perceptions of the propriety of judicial intervention and time/monetary costs) are negatively associated with the decision to join the litigation. Though unexpected, the independent influence of each of these variables is quite small. 281
MULTIVARIATE ANALYS1S-PART 11
TABLE 60
RESULTS OF A PROBIT ANALYSIS OF THE REVISED MODEL OF THE DECISION MAKING OF SCHOOL DISTRICTS IN REFERENCE TO THE EDUCATION FINANCE LITIGATION IN VIRGINIA
Standard VARIABLE h Error I
CONSTANT -5.1415 2.3688 -2.1705 Is there an injury -0.3927 0.5634 -0.6970 Who is blamed 1.6924 0.9633 1.7569** Is judicial intervention appropriate -0.1273 0.9244 -0.1377 Current financial status 0.8321 0.4637 1.7943** Prediction about future financial status 0.3622 0.4293 0.8436 Time/monetary costs 0.2120 1.0597 0.2001 Prediction about effect on relations with state government 0.45j 3 0.4954 0.9090 Prediction about chances for plaintiff success 1.8191 0.7740 2.3501*** Prediction about the extent of change in financing system from court decision favoring the plaintiffs 0.7271 0.5469 1.3296*
N =73 Estimated R-squared=.654
*** t-statistic significant at .025 level ** t-statistic significant at .050 level * t-statistic significant a t . 100 level
Again predictions about the possibility of plaintiff success become more significant in the
absence of third party variables. In addition, as in Alabama and Arizona, current financial status becomes significant in Virginia when third party variables are removed. CHAPTER X
SUMMARY AND CONCLUSIONS
SUMMARY
This dissertation has presented the development of a model of the decision to litigate policy-centered disputes. The model has been systematically analyzed in the context of lawsuits instigated by local school districts designed to overturn state methods of education finance in Arizona, Alabama, New Hampshire, Ohio and Virginia
It is always difficult to specify the broader implications of any analytical enterprise.
Still, it is possible to draw conclusions about the types of forces which become involved when public actors (such as school boards) consider going to court and/or when policies (such as education finance) are being disputed. It is therefore worthwhile to consider the results of this analysis in a broader perspective. First, it is useful to briefly summarize the results of the five analytical chapters. Partial results of the multivariate analyses are found in table 61.
282 283
TABLE 61
PROBABILITY CHANGES AND SIGNIFICANCE LEVELS OF INDEPENDENT VARIABLES IN EACH STATE#
Alabama Arizona N.H. Oh ip Virginia
A) 23.9% 8.6% 2.3% 2.3% -7.8% B) 32.8%* 11.0% 13.9% -3.0% 23.6%** C) -27.6% -6.7% -19.2% -0.8% -2.2% D) 3.4% 2.8% -5.5% 1.9% 16.8% E) 20.6% 4.6% -10.3% 2.8%** 1.9% F) 31.2% 23.1%* -21.4% 3.0% -8.3% G) -32.2% 0.2% (a) 2.4% 13.6% H) 27.9% 13.1% 13.9% 3.0%*** 23.2%* I) -12.0% -12.4% 3.1% -2.9%** 16.3% J) -23.1% -12.4% 33.3%***** 2.4% -17.3% K) 31.5%*** 10.5% -12.4%**** 2.9%** 20.4%*** L) 26.1% 23.1%**** 16.8%**** 2.9%*** (b)
# A. is there an injury B. who is blamed C. is judicial intervention appropriate D. current financial status E. prediction about future financial status F. time/monetary costs G. prediction about effect on relations with state government H. prediction about chances for plaintiff success I. prediction about the extent of change in financing system from court decision favoring the plaintiffs J. opinion of general public K. opinion of local elites L. opinion of education professionals
***** t-statistic significant at the .005 level **** t-statistic significant at the .010 level *** t-statistic significant at the .025 level ** t-statistic significant at the .050 level * t-statistic significant at the .100 level
(a) variable excluded from equation (b) due to high correlation between variables K and L in Virginia, they were collapsed into one 284
Step One; R&ognition. Qf Injury
This variable performed in the expected direction in four of the five states, but relatively weakly across the sample. The bivariate analysis in each chapter indicated that there was a consistently high level of consensus across districts about the need for equity, creating the impression of agreement between plaintiffs and non-plaintiffs that disparity causes injury.
Step Two: Attribution of Blame
This variable performed fairly well, reaching statistical significance in two states
(Alabama and Virginia) and attaining high probability scores in two others (Arizona and New
Hampshire). As expected, plaintiffs were more likely to blame the state for disparities than were non-plaintiffs. The exception was Ohio, where the result was negative, but of negligible value.
Step Three: Acknowledgement of Court Relevance
In all five states, this variable performed in a direction opposite to what was expected.
It seems as if doubts about the relative propriety of judicial intervention into disputes over education finance were strongest among districts which ultimately became members of litigation coalitions. The fact that these districts overcame such doubts may be a sign of desperation due to lack of other viable alternatives. However, the reason why plaintiffs are generally more hesitant than non-plaintiffs about soliciting judicial involvement remains a mystery. 285
Consideration of Costs
Variables associated with perceived costs performed somewhat erratically across the five samples (even though the time and monetary costs of membership in different coalitions was roughly the same). In Alabama and Arizona, time and monetary costs were important, discouraging potential plaintiffs from becoming involved. The opposite was true in New
Hampshire, where districts which perceived such costs as "substantial" were likely to join. In
Ohio and Virginia, this variable was of negligible importance to the decision.
Fear of retribution from the state was significant in Alabama, but performed opposite to expectations. As this fear increased, so did the likelihood that a districts would become a plaintiff. As discussed in chapter five, it may be that given the current political and economic situation, districts made the calculation that litigation was worth the risk to relations with the state. This variable performed moderately well in Virginia (where retribution was seemingly most possible), but was all but invisible in the other three states.
Consideration of Benefits
What is undoubtedly the biggest surprise (at least for the author) produced by this analysis is the indication that the current financial status of a district has little influence over decisions about the finance litigation. One would have naturally assumed that, given the centrality of financial status to the dispute, this variable would have been of primary importance. The bivariate analyses indicated that this variable generally separated plaintiffs from non-plaintiffs. However, in only one state did this variable attain a relatively high probability score (Virginia) and nowhere did it achieve statistical significance. It is difficult to understand this result other than to state the obvious: other forces, such as costs, 286 predictions and the opinions of third parties, seemed to have overwhelmed the independent importance of financial status.
Efficacy
As expected, districts were much more likely to join the litigation effort if they thought it would achieve some benefit. This variable was significant in two states (Ohio and
Virginia) and produced relatively high probability scores in the other three. This fits within broader discussions of the role of efficacy in political behavior.
On the other hand, predictions about the results of a favorable verdict were not very consistent. In terms of the predictions of particular districts about their financial status following such a ruling, plaintiffs in Alabama and Ohio were strongly motivated to join by the hope that their status would improve. Such predictions, however, pushed districts in New
Hampshire in the opposite direction. Meanwhile, districts in Arizona and Virginia seemed to pay little attention to such predictions.
The results are also inconsistent concerning feelings about the implications of a favorable ruling for the finance system in general. Predictions that substantial change would occur seemed to dissuade school districts in Alabama, Arizona and Ohio from joining the respective litigation coalitions. As discussed in earlier chapters, it may be that those who predict (or fear) substantial change are the districts which are most likely to be adversely affected by them (this is particularly true in Ohio). On the other hand, predictions of substantial change are a pro-litigation force in Virginia. 287
Third Parties
It was mentioned in chapter one that the democratic personality of the decision makers in this analysis added a new dimension to litigation decisions. Private individuals and groups, making litigation choices about private disputes, are generally shielded from the influence of mass public opinion. Local school boards, on the other hand, are political units potentially susceptible to the influence of opinions of subsets of voters or the public more generally. Past research on school district decision making indicates that school boards are most susceptible on "high-profile" issues, which generate public interest and opinion. The results of the multivariate analyses reported here show that decisions about education finance are often salient among particular subsets of voters in each state (particularly in districts which ultimately decide to become plaintiffs). These subsets have subsequent influence over those decisions.
The general public was most important in New Hampshire. This result was expected, given the tradition of broad democratic participation in public policy formulation in the state.
However, it was only in New Hampshire that the general public played a critical role in pushing districts in the direction the public preferred.
In Alabama, Arizona and Ohio, the public’s opinions ran counter to ultimate district decisions on the issue. This result may owe its existence to the preferences of other third parties, namely education professionals and elites. The preferences of these parties seemed to overwhelm the public’s opinion. The opinions of education professionals were significant forces in determining district behavior in four of five states. While the influence was not significant in Alabama, it nevertheless produced a relatively high change in district behavior.
Local elites were able to push districts in a preferred direction in Alabama, Ohio and Virginia 288 at a significant level. The opinions of elites were also significant in New Hampshire, but in a negative direction.
CONCLUSION
As with any decision made by large numbers of actors, the decisions of local school districts to litigate are a mix of general patterns and individual idiosyncracies. As expected, there are forces (particularly third party opinions and levels of efficacy) which seem very important across the states in the sample. But the unique political, economic and cultural contexts within each state provide a different mix of variables which often operate in unexpected directions.
American state courts are potentially powerful actors in the policy process. Lawsuits which challenge the constitutionality of systems of education finance provide state courts with the opportunity to mandate fundamental alterations in the way their state and localities educate their children. One need look only as far as the recently instituted system of education in
Kentucky for evidence of the potentially broad political implications of particular court decisions (see chapter two).
However, American courts are primarily reactive institutions. Their nature makes their role in public policy completely dependent upon those who commence lawsuits which challenge government action. Plaintiffs thus become essential to the function of the American legal system and its power over policy. The importance of studying the decision to litigate needs no further endorsement. Absent the willingness of individuals, groups and governments to commence lawsuits, the American courts have no role to play in public policy.
This dissertation has focused upon the decisions of school districts to invite state 289 courts to become involved in the financing of primary and secondary education. Perhaps the encompassing discovery of this inquiry has been that in the context of disputes over systems of education finance, school districts are subject to many of the same influences which affect potential plaintiffs in other public and private disputes. From a theoretical perspective, then, potential plaintiffs, regardless of whether they are public or private and regardless of the nature of the dispute, are influenced by many of the same types of variables when decisions are made about whether to commence lawsuits to solve disputes.
This phenomenon is perhaps primarily, if not exclusively, due to the institutional constraints that the court system places upon all potential plaintiffs. Every actor which considers litigation has costs which must be managed and potential benefits which must be considered. Predictions must be made about the likelihood of success and external actors provide guidance. As with the private individual who is injured by a faulty product or the interest organization that attempts to prevent an adverse government decision from being carried forward, school districts in education finance disputes must calculate costs and benefits and make predictions about future events.
In particular, past research on public and private litigation has shown the importance of third parties. Attorneys and interest groups have played fundamental roles in numerous examples of public policy disputes. While third parties are important to school districts decisions as well, the personality of influential external actors is different. What distinguishes this research from past efforts is the nature of school district decision makers as public actors.
Local governing bodies such as school boards provide verification of the democratic ideal by their susceptibility to the influence of at least some of the individuals they represent. It seems reasonable to assert, based upon this analysis, that the nature of local school boards and superintendents as public actors is critical to their decisions in this context. Lawsuits brought 290 against the state government are high-profile, high-stakes enterprises which engender public interest and opinion. In turn, the school district decisions about these endeavors is partially a manifestation of some mix of third party opinion.
But the process of coming to conclusions about whether to take a dispute to court is complex and multi-staged for both public and private actors. Before calculations and predictions take place, injuries must be perceived, other parties must be blamed and courts must be thought to be relevant. This research has shown that such considerations distinguish school districts who become active in finance litigation from those who decide not to join plaintiff coalitions.
The focus of the potential legal dispute upon a facet of public policy adds an interesting dimension. The level of efficacy among potential plaintiffs has been shown to often be a powerful influence. In this sense, local school districts behave much like other actors when attempts are made to influence public policy in other contexts. As with those who vote, picket, write letters and campaign, litigants in school finance disputes are likely to go to court only if they think it will ultimately assist the effort to change a particular policy.
From a practical perspective, this research has granted some insight into the calculations school districts make when deciding whether to join suits against the state over education finance. The number of school districts which join plaintiff coalitions is potentially critical. Litigation is costly, so the higher the number of plaintiffs, the lower the actual costs to any particular district involved in the suit. Large coalitions may also affect court decisions and the likelihood that the state legislature will respond effectively to judicial mandates to equalize spending. This research suggests that those who attempt to build coalitions should pay particular attention to building public support for involvement within districts and construct convincing arguments for why the litigation is likely to be successful in court. APPENDIX A EDUCATION FINANCE CASES DECIDED BY STATE SUPREME COURTS
SYSTEMS OVERTURNED
Serrano v. Priest I 1971. 584 P.2d 1241. California
Millikin v. Green I 1972. 203 NW.2d 457. Michigan
Robinson v. Cahill 1973. 303 A.2d 273. New Jersey
Knowles v. State Board of Education 1976. 547 P.2d 699. Kansas
Serrano v. Priest II 1976. 557 P.2d 929. California
Horton v. Meskill 1977. 376 A.2d 359. Connecticut
Seattle School District v. State of Washington 1978. 585 P.2d71. Washington
Paulev v. Kelly 1979. 255 SE.2d 859. West Virginia
Washakie Countv School District #1 v. Herschler 1980. 606 P.2d 310. Wyoming
Dupree v. Alma School District #30 1983. 651 SW.2d 90. Oklahoma
Helena Elementary School District v. State of Montana 1989. 769 P.2d 684. Montana
Rose v. Council for Better Education 1989. 790 SW.2d 186. Kentucky
Edeewood Independent School District v. Kirhv 1989. 777 SW.2d 391. Texas
Abbott v. Burke 1990. 575 A.2d 359. New Jersey
291 292
APPENDIX A (cont.)
SYSTEMS UPHELD
Shofstall v. Hollins 1973. 515 P.2d 590. Arizona
Millikin v. Green II 1973. 212 NW.2d 711. Michigan
Thompson v. Engelking 1975. 537 P.2d 635. Idaho
Olsen v. State of Oregon 1976. 554 P.2d 139. Oregon
Danson v. Casev 1979. 399 A.2d 360. Pennsylvania
Board of Education of the City School District of the City of Cincinnati v. Walter 1979. 390 NE.2d 813. Ohio
McDaniels v. Thomas 1981. 285 SE.2d 156. Georgia
Lujan v. Colorado State Board of Education 1982. 649 P.2d 1005. Colorado
Board of Education. Levittown Union Free School District v. Nvquist 1982. 439 NE.2d 359. New York
Hornbeck v. Somerset County Board of Education 1983. 458 A.2d 758. Maryland
East Jackson Public Schools v. State of Michigan 1984. 348 NW.2d 303. Michigan
Fair School Finance Council of Oklahoma v. State of Oklahoma 1988. 746 P.2d 1135. Oklahoma
Richland County v. Campbell 1988. 364 SW.2d 470. South Carolina
Kukor v. Grover 1989. 436 NW.2d 568. Wisconsin APPENDIX B STATES WITH EDUCATION FINANCE LITIGATION PENDING1
Alabama New Hampshire Alaska New Jersey Arizona New York California North Dakota Idaho Ohio Illinois Oklahoma Indiana Rhode Island Louisiana South Dakota Maine Tennessee Massachusetts Texas Minnesota Virginia Mississippi Washington Missouri West Virginia Montana Wyoming Nebraska
1. The New York Times (Celis, 1992) listed 23 states where litigation was active as of that date. Since then, six states have either begun or renewed litigation.
293 APPENDIX C SURVEYS SENT AND RESPONSE RATES
number number of school of school districts districts number of response slats (total) (sampled) responses rate
ALABAMA 129 129 88 68.2%
ARIZONA 238 174 92 52.6%
NEW HAMPSHIRE 174 174 80 46.0%
OHIO 613 174 112 64.4%
VIRGINIA 136 136 88 64.2%
TOTAL 1290 787 460 58.4%
294 APPENDIX D
ON BEHALF OF YOUR DISTRICT, PLEASE ANSWER EACH QUESTION, REGARDLESS OF WHETHER OR NOT YOUR DISTRICT IS A MEMBER OF THE COALITION.
I. GENERAL INFORMATION
1. Relative to other school districts in Ohio, how would you rate your district’s current financial status?
very good above average average below average poor
2.A. Local school districts in Ohio spend different dollar amounts per pupil. Which of the following forces is most responsible for these differences in levels of spending across Ohio school districts?
An unwillingness on the part of some local school districts to raise sufficient revenue from local sources An unwillingness on the part of the state legislature to create a more equitable method of binding state education A combination of these two forces An understanding that local school districts do not need to spend equal amounts of money to provide equal educational quality other (Please specify)______
2.B. If it is a combination of two forces, which one is more responsible?
local school districts the state legislature
295 296
3. A. How important are differences in levels of spending per pupil across Ohio school districts to the relative quality of education across districts (i.e will differences in levels of spending per pupil across districts create differences in educational quality)?
very important important somewhat important not important
3.B. If differences in levels of spending are important, under current political and financial circumstances in Ohio, what is the most appropriate and effective method for reducing these differences?
lobbying the legislature for changes in the method of financing education litigation in state courts designed to mandate alterations in the method of financing education requiring a greater financial commitment on the part of school districts where spending per pupil is relatively low other (Please specify)______
4. How often is judicial involvement appropriate in disputes concerning the following areas of public primary and secondary education?
always/generally sometimes rarely/never
racial integration of local schools ______disciplinary action against students ______hiring\firing practices ______codes of conduct for students ______services for handicapped students ______equal opportunities for female students ______religious practices ______education financing ______297 II. THE DECISION ABOUT JOINING THE OHIO COALITION FOR EQUITY AND ADEQUACY OF SCHOOL FUNDING
5. How much of a time commitment is required of a school district’s personnel if it becomes a member of the Coalition?
a substantial time commitment some time commitment little or no time commitment can’t say/don’t know
6. How much of a financial commitment is required of a school district if it becomes a member of the Coalition?
a substantial monetary commitment some monetary commitment little or no monetary commitment can’t say/don’t know
7. A. For each of the following sets of individuals within your school district, please indicate their opinion about your district joining the Coalition.
1. parents ______generally favored joining the Coalition about evenly divided generally opposed joining the Coalition no opinion was expressed can’t say/don’t know
2. teachers _____generally favored joining the Coalition about evenly divided generally opposed joining the Coalition no opinion was expressed can’t say/don’t know
3. school administrators _____generally favored joining the Coalition about evenly divided generally opposed joining the Coalition no opinion was expressed can’t say/don’t know
4. local government officials _____generally favored joining the Coalition about evenly divided generally opposed joining the Coalition no opinion was expressed can’t say/don’t know 298
5. business/civic leaders _____generally favored joining the Coalition about evenly divided generally opposed joining the Coalition no opinion was expressed can’t say/don’t know
6. state legislator _____ generally favored joining the Coalition about evenly divided generally opposed joining the Coalition no opinion was expressed can’t say/don’t know
7. general public _____ generally favored joining the Coalition about evenly divided generally opposed joining the Coalition no opinion was expressed can’t say/don’t know
7.B. Were any individuals particularly vocal about the issue of joining the Coalition? (Please check as many as appropriate.)
parents teachers school administrators local government officials business/civic leaders state legislator(s) who represent the district other (Please specify)______none of these individuals were particularly vocal
8. Were any private organizations (i.e. interest groups) within your district vocal on the issue of the district joining the Coalition? If so, please list them and describe their opinion.
1 .______
favored the district becoming a member of the Coalition opposed the district becoming a member of the Coalition can’t say/don’t know
2.______
favored the district becoming a member of the Coalition opposed the district becoming a member of the Coalition can’t say/don’t know 299
favored the district becoming a member of the Coalition opposed the district becoming a member of the Coalition can’t say/don’t know
favored the district becoming a member of the Coalition opposed the district becoming a member of the Coalition can’t say/don’t know
9. When your district was deciding whether to join the Coalition, was it felt that relations between your district and state government would be altered if you joined? If so, how?
relations would be severely damaged relations would be moderately damaged relations would be unaffected relations would be moderately benefitted relations would be greatly benefitted can’t say/don’t know this was not a consideration
10. When your district was deciding whether to join the Coalition, was it felt that your district risked retribution from state government if you joined? If so, what form did you think such retribution would take? (Please check as many as appropriate.)
less cooperation from state education agencies less money from state government less leverage for the district in general relations with state government more state involvement in local education decisions other (Please specify)______
can’t say/don’t know this was not a consideration 300
1 l.A. In deciding whether to join the Coalition, what was the belief among decision makers within your district about the chances for the plaintiffs (the Coalition) to be successful in their lawsuit (i.e. have the state courts declare the financing system unconstitutional)?
sure the plaintiffs would win thought the plaintiffs might win uncertain about the outcome thought the plaintiffs might lose sure the plaintiffs would lose this was not a consideration
11 .B. What forces influenced opinions in your district about the chances for the plaintiffs to be successful? (Please check as many as appropriate.)
advice from school board or external attorney(s) studies of the system of education finance general legal doctrine concerning relations between state and local governments the general pattern of behavior of the Ohio State Supreme Court related cases previously decided by the Ohio State Supreme Court related cases previously decided by the U.S. Supreme Court (particularly San Antonio v. Rodriguez) related cases previously decided in state-level courts in other states other (Please specify)______
this was not a consideration
11 .C. If you were aware of decisions in related cases in courts in other states, which states with cases were you aware of? When deciding whether or not to join the Coalition, did your district consider the decisions of other Ohio school districts on this matter? If so, which districts did you pay particular attention to? (Please check as many as appropriate.)
districts located in your county districts located in neighboring counties districts located in your region districts with similar levels of spending per pupil districts with students of similar demographic characteristics districts where decision makers in your district had personal connections districts with a reputation for educational leadership in the state other (Please specify)______
this was not a consideration
Other than the Coalition, was your district contacted by any organization from outside the district? If so, please list them and describe their opinion about your district joining the Coalition?
1 .______
favored the district becoming a member of the Coalition opposed the district becoming a member of the Coalition can’t say/don’t know
2.______
favored the district becoming a member of the Coalition opposed the district becoming a member of the Coalition can’t say/don’t know
3.______
favored the district becoming a member of the Coalition opposed the district becoming a member of the Coalition can’t say/don’t know
What advice did your school district’s attorney offer about joining the Coalition?
favored joining the Coalition opposed joining the Coalition no opinion was expressed can’t say/don’t know 302
15. Did any individuals from outside your district offer advice? If so, who were these individuals and what was their advice?
favored the district becoming a member of the Coalition opposed the district becoming a member of the Coalition
favored the district becoming a member of the Coalition opposed the district becoming a member of the Coalition
III. THE COURT DECISION NOTE: Answers to questions 16 through 22 require speculation about future events. Simply provide your best estimate on behalf of your district.
16. What will be the result of a court decision that favors the plaintiffs (i.e. a declaration that the current financing system is unconstitutional)?
substantial change in the current method of education financing moderate change in the current method of education financing little or no change in the current method of education financing can’t say/don’t know
17. Will a court decision in favor of the plaintiffs lead to a shifting of funds from some school districts to others?
yes no can’t say/don’t know
18. If the court decides in favor of the plaintiffs, which school districts will benefit?
all school districts in Ohio all school districts where spending per pupil is below the state average all school districts that were members of the Coalition the impact will be random other (Please specify)______
can’t say/don’t know 303
19. If the state courts decide in favor of the plaintiffs, how will per pupil spending in your district be affected?
spending will likely increase substantially spending will likely increase moderately spending will likely remain about the same spending will likely decrease moderately spending will likely decrease substantially can’t say/don’t know
20. If the courts decide in favor of the plaintiffs, which, if any, school districts will be involved in designing a new financing system?
all school districts in Ohio all school districts where spending per pupil is below the state average all school districts that were members of the Coalition a random selection of school districts local school districts will be largely excluded other (Please specify)______
can’t say/don’t know
21. How will a court decision in favor of the plaintiffs affect the balance of power between state government and local school districts?
the power of state government will increase substantially the power of state government will increase moderately there will be little or no change in the balance of power the power of local school districts will increase moderately the power of local school districts will increase substantially can’t say/don’t know
22.A. Who made the official decision about whether or not your district would join the Coalition?
the superintendent the board of education both other (Please specify)______no official decision was made 304
22.B. If the local board of education was involved, was an official vote taken?
yes no
22.C. If so, what was the vote?
23. What was your personal view on whether your district should join the Coalition?
favored joining the Coalition neutral/no opinion opposed joining the Coalition other (Please specify)______
24. Please rate the importance of the following influences to your district’s decision about whether or not to join the Coalition.
very somewhat not imp. imp. imp. imp.
a. your district’s financial status ______
b. legitimacy of court involvement ______
c. time commitment
d. monetary commitment
e. opinions of individuals in the district:
parents teachers school administrators local government officials business leaders state legislator(s) interest organizations general public
f. potential for damage to district relations with the state
g. chance for Coalition success 305
very somewhat not imp. imp. imp. imp.
h. if the Coalition is successful, the possibility that:
methods of financing would change substantially ______
funds would be taken from some districts and given to others ______
state control over education would increase
your district could gain benefits without becoming a member of the Coalition
your district would be involved in designing the new system of financing without becoming a member of the Coalition
i. the decision(s) of other school district(s)
j. advice from interest organizations from outside the district
k. advice of school board attorney ______
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Abbott v. Burke 1990. 575 A.2d 359
Atkins v. Kansas 1903. 191 U.S. 483.
Baker v. Carr 1962. 369 U.S. 186.
Board of Education. Levittown Union Free School District v. Nvouist 1982. 439 NE.2d 359.
Board of Education of Louisville v. Board of Education of Jefferson Countv 1970. 458 SW.2d 6.
Board of Education of the Citv School District of the Citv of Cincinnati v. Walter 1979. 399 A.2d 360.
Brown v. Board of Education 1 1954. 347 U.S. 483.
Brown v. Board of Education II 1955. 349 U.S. 294.
Burrus v. Wilkerson 1969. 310 F.Supp. 572.
Burrus v. Wilkerson. affd per curiam 1970. 397 U.S. 44.
Carpio v. Tucson High School District 1974. 524 P.2d 948.
City of Clinton v. Cedar Rapids and Missouri Railroad Company 1868. 24 Iowa 455.
Danson v. Casev 1979. 399 A.2d 360.
Dupree v. Alma School District #30 1983. 651 SW.2d 90.
East Jackson Public Schools v. State of Michigan 1984. 348 NW.2d 303.
Edgewood Independent School District v. Kirbv 1989. 777 SW.2d 391.
Ehret v. School District of Borough of Kulpmont 1939. 5 A.2d 188.
Fair School Finance Council of Oklahoma v. State of Oklahoma 1988. 746 P.2d 1135.
318 Griswold et al. v. Connecticut 1965. 381 U.S. 479.
Helena Elementary School District v. State of Montana 1989. 769 P.2d 684.
Hobson v. Hansen 1967. 265 F.Supp. 902.
Hombeck v. Somerset Countv Board of Education 1983. 458 A.2d 758.
Horton v. Meskill I 1977. 376 A.2d 359.
Ingram v. Pavton 1966. 150 SE.2d 825.
Knowles v. State Board of Education 1976. 547 P.2d 699.
Kukor v. Grover 1989. 436 NW.2d 568.
LeBeauf v. State Board of Education of Louisiana 1965. 244 F.Supp. 256.
Luian v. Colorado State Board of Education 1982. 649 P.2d 1005.
Mclnnis v. Shapiro 1968. 293 F.Supp 327.
Miller v. Korns 1923. 104 NE 773.
Milliken v. Green I 1972. 203 NW 2d 457.
Milliken v. Green II 1973. 212 NW.2d711.
Olsen v. State of Oregon 1976. 554 P.2d 139.
Pap as an v. Allain 1986. 265 U.S. 309.
Paulev v. Kelly 1979. 255 SE.2d 859.
Plvler v. Doe 1982. 457 U.S. 202.
Richland Countv v. Camnhell 1988. 364 SW.2d 470.
Robinson v. Cahill 1973. 303 A.2d 273.
Rose v. Council for Better Education 1989. 790 SW.2d 186.
San Antonio Independent School District v. Rodriguez 1973. 411 U.S. 1.
Sawyer v. Gilmore 1912 83 Atl. 673.
Seattle School District #1 v. State of Washington 1978. 585 P.2d 71. 320 Serrano v. Priest I 1971. 584 P.2d 1241.
Serrano v. Priest II 1976. 557 P.2d 929.
Shofstall v. Hollins 1973. 515 P.2d 590.
5>tate_ex Rel, Board of Education of Citv of Sapulpa v. State Board of Education 1947. 196 P.2d 859.
Thomas v. McDaniels 1981. 285 SE.2d 156.
Thompson v. Engelking 1975. 537 P.2d 635.
Washakie County School District #\ v. Herschler 1980. 606P.2d310.