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Courting Failure: How School Finance Lawsuits Exploit Judges’ Good Intentions and Harm Our Children

reviewed by Preston Green - February 15, 2007

coverTitle: Courting Failure: How School Finance Lawsuits Exploit Judges’ Good Intentions and Harm Our Children
Author(s): Eric A. Hanushek (Ed.)
Publisher: Hoover Institution Press, Stanford
ISBN: 0817947817 , Pages: 366, Year: 2006
Search for book at Amazon.com

Since the late 1960s, plaintiffs in 45 states have challenged the constitutionality of school finance formulas. Recently, plaintiffs in several states have prevailed on an adequacy theory, in which they argue that state legislatures have failed to provide poor school districts with a minimal level of funding in violation of state education clauses. Courting Failure: How School Finance Lawsuits Exploit Judges Good Intentions and Harm Our Children, which is edited by noted educational economist Eric Hanushek, argues that adequacy litigation is highly unlikely to improve educational outcomes for students attending poor school districts. Unfortunately, the book makes this case in an extremely biased fashion, which gives too little consideration to arguments on the other side.

In the first chapter of the book, Sol Stern provides an overview of New Yorks Campaign for Fiscal Equity case, in which the state high court ruled that the state failed to provide New York Citys children with an adequate education. Among other things, Stern argues that while the attorneys were battling over the funding system, funding for New York Citys public schools had almost doubled because of the political process. Stern never sufficiently addresses the possibility that the political process may have provided increased funding to New York City because of the lawsuit.

Sterns flippant tone regarding the plaintiff attorneys attempts to link Campaign for Fiscal Equity to Brown v. Board of Education is especially troubling. For instance, he writes that plaintiff attorney Joseph Wayland at the trial-court level play[ed] the race card thirty seconds into his opening argument (p. 19). Stern was also dismissive of the fact that plaintiffs attorneys discussed the connection between Brown and Campaign for Fiscal Equity in black churches. These statements fail to take into account the fact that school finance litigation was derived from school desegregation litigation (Enrich, 1995). Stern also seems to be completely unaware of the body of educational research that has examined the historical and enduring relationship between race and school finance (Adolph, 2002; Baker, 1995; Bond, 1969; Baker & Green, 2005; Harlan, 1968; Kousser, 1980; McMillan, 1989; Margo, 1982).

Alfred Lindseth analyzes the underpinnings of adequacy litigation in the second chapter of the book. He contends that recent adequacy cases are unprecedented because courts are requiring state legislatures to correct factors, such as student poverty, that are not caused by state policies. Lindseths analysis is problematic because he fails to acknowledge that the federal cases were really school desegregation cases that were based on the Equal Protection Clause of the U.S Constitution. The Supreme Court has consistently held that the goal of these cases was to correct deficiencies that were caused by official state segregation. State education clauses may, at least in some cases, impose an affirmative duty on states to accommodate differences in student needs (Ryan & Saunders, 2004). So too may federal statutes, including the Equal Educational Opportunities Act of 1974 (Flores v. Rzeslawski, 2006; Flores v. Arizona, 2000/2005). It is peculiar to assert that neither federal nor state law can ever provide such an affirmative duty to accommodate student differences using school desegregation cases as a primary basis.

In the books third chapter, Herbert Walberg argues that adequacy litigations focus on resources is deficient because it fails to consider the possibility that certain high-poverty, high-performing schools are able to overcome the effects of poverty without spending more money. According to Walberg, common features of such outliers include strong principal leadership, committed teachers, and statewide assessments that are connected to standards. However, many of these common features do not preclude the possibility that more resources may be necessary to attain these characteristics. Indeed, in a study of teacher mobility of Texas public elementary schools, Hanushek, Kain, and Rivkin (2004) find that their analysis suggests that a school with 10% more black students would require about 10% higher salaries in order to neutralize the increased probability of [nonminority female teachers] leaving (p. 350). Walberg tries to rebut this contention by contrasting a non-plaintiff, high-performing, high-poverty South Carolina school district with seven low-performing, high-poverty plaintiff school districts that were challenging the states school finance system. Walberg appears to be arguing that the high-performing plaintiff school district is working more efficiently than its low-performing counterparts. However, one needs more information to reach the conclusions that Walberg draws. For instance, Walberg fails to provide information about the racial composition or size of the districts, which numerous researchers have found may have an impact on efficiency (Hanushek et al., 2004; Baker & Duncombe, 2004).

In the fourth chapter of the book, Williamson Evers and Paul Clopton present several case studies which purport to show how pouring additional funds into poor, high-minority districts yield few positive results. Notably, Evers and Clopton focus on the notorious Kansas City, Missouri School District (KCMSD) desegregation case, which conservative critics have cited as the poster child for establishing that increased spending on minority education does not result in improved outcomes for minority students (Green & Baker, 2006). Evers and Clopton conclude that: (a) KCMSD received an egregious amount of money over an extended period, and (b) in spite of this additional funding, [KCMSD] schools remain among the worst performing to this day (Courting Failure, p. 112). As proof, Evers and Clopton observe that in 2000 KCMSD failed all 11 performance standards for accreditation.

However, Green and Baker (2006) have found that spending in KCMSD peaked for a five-year period instead of the ten-year period often asserted by conservatives. They also found that the claim that additional spending failed to lead to improved outcomes is flawed in part because KCMSD was a relatively high spending school district for a short time. Indeed, when adjusted for student needs, KCMSD was already below average in the metropolitan area by 1998, which was the first year that Missouri implemented its present statewide assessment system (Green & Baker). Green and Bakers empirical analysis showed that KCMSD is neither the most, nor the least efficient district in the immediate metropolitan area, much less the entire state (p. 100). Evers and Cloptons treatment of the KCMSD case calls into the question the rest of their analysis.

Evers and Cloptons analysis is also problematic because they appear to suggest that states should not be obligated to provide funding that may be desperately needed as long as there is a chance that plaintiff districts may not use the money well: in other words, the possibility of inefficiency stands as a rationale for deprivation. Still, plaintiffs in future school finance cases should consider challenging school district inefficiency as part of their litigation strategy.

Similarly, in the following chapter Marguerite Roza and Paul Hill point out that too may urban districts have significant disparities across schools within the districts, and that those disparities often disadvantage the highest need schools in those districts. Indeed, this is true. However, Roza and Hill appear to assert that states should not be compelled to provide adequate funding to achieve vertical equity across districts until those large urban districts allocate internally by need. That is, the possibility of within district inequity stands as a legitimate rationale for states to perpetuate between district inequity. Baker and Rebell (2006) point out that solving within district inequity is constrained by between district inequities. Quite simply, the two must be handled simultaneously, and children disadvantaged either by state or district allocation policies should have the possibility of challenging these policies in court.

Eric Hanushek argues that studies of education costs relating to either the minimum amount of money required to achieve specific outcomes, or the ways in which those costs vary from one child to the next and one school to the next, should never enter into judicial deliberation over whether state legislatures are meeting their constitutional obligation. Hanushek contends that all such studies are little more than alchemy. For example, he cites the work of Baker and colleagues which shows wide ranges of cost estimates produced by studies across states. Subsequent work by Baker finds a very high correlation across states between cost estimates. That is, in states where one method produces a high estimate, other methods also produce high estimates. Furthermore, Hanushek uses a single study on North Dakota by Augenblick and Myers to show that the funding gaps estimated were not associated with actual outcome gaps. By contrast, Baker (2006) shows that across 9 of 11 studies where district by district data were available, funding gaps were consistently associated with outcome gaps. Finally, Hanushek appears to support evidence-less trials and evidence-less policy development, deferring entirely to the political process to solve adequacy and vertical equity concerns. Numerous authors including Baker and Green (2005) and Baker and Duncombe (2004) have shown how the political process can distort cost and need adjustments.

These specific critiques underscore this reviewers fundamental problems with Courting Failure. First, a number of chapters in this book make their case in an extremely prejudicial manner. These chapters give short shrift to arguments made in support of school finance litigation. Given the books title, this critique should not be surprising. It is obviously a polemic designed to influence policymakers, educational analysts, judges, and the general public. The second problem is more unflattering: several chapters portray an ignorance of the subject matter that borders on arrogance. It is as though many of the contributors could not deign to understand the arguments of supporters of school finance litigation.

Finally, the authors appear to adopt the perspective that, in their own viewwhich is based largely on an incorrect application of desegregation litigationcourts can do little to help and much to harm education systems. Therefore, why bother? Further, because state school finance reform does not necessarily guarantee local school finance reform, state school finance reform should not be obligatory. The authors seem all too willing to negate outright constitutional and statutory rights of children disadvantaged by geography and family circumstance on the basis that court ordered reforms might not produce results as efficiently as the authors would like.


Adolph, C. (2002). How parties distribute school finance by income and race. Working paper, Department of Government, Kennedy School of Government, Harvard University.

Baker, B. (2006). Evaluating the reliability, validity and usefulness of education cost studies. Paper Presented at the OLeary Endowment Symposium of the University of Illinois. University Club of Chicago.  Available at http://web.ku.edu/~bdbaker/index_files/page0002.htm.

Baker, B., & Duncombe, W. (2004) Balancing district needs with student needs: The role of economies of scale adjustments and pupil need weights in school finance formulas. Journal of Education Finance, 29(3), 195-222.

Baker, B., & Green P. (2005). Tricks of the trade: State legislative actions in school finance policy that perpetuate racial disparities in the post-Brown era. American Journal of Education, 111(3), 372-413.

Baker, B., & Rebell, M. (2006). Robbing Peter to pay Paul: Weighted student funding is not the 100 percent solution. Education Week, 26(13), 30-31.

Baker, S. (1995). Testing equality: The National Teacher Examination and the NAACPs legal campaign to equalize teachers' salaries in the South, 1939-1963, History of Education Quarterly, 35, 49-64.

Bond, H. (1969). Negro education in Alabama. New York: Octagon.

Enrich, P. (1995). Leaving equality behind: New directions in school finance reform. Vanderbilt Law Review, 48, 101-194.

Flores v. Rzeslawski, Slip Copy, 2006 WL 2460741 (9th Cir. Aug. 23, 2006).

Flores v. Arizona, 160 F.Supp.2d 1043 (D.Ariz. 2000).

Flores v. Arizona, 405 F.Supp.2d 1112 (D.Ariz. 2005).

Green, P., & Baker, B. (2006). Urban legends, desegregation and school finance: Did Kansas City really prove that money doesnt matter? Michigan Journal of Race & Law, 12, 57-105.

Hanushek, E., Kain, J., & Rivkin, S. (2004). Why public schools lose teachers. Journal of Human Resources, 39(2), 326-354.

Harlan, L. (1968). Separate and unequal. New York: Atheneum.

Kousser, J. (1980). Progressivism for middle-class whites only: North Carolina education, 1880-1910. The Journal of Southern History, 48(2), 169-194.

McMillan, N. (1989). Dark journey: Black Mississippians in the age of Jim Crow. Chicago: University of Illinois.

Margo, R. (1982). Race differences in public school expenditures: Disfranchisement and school finance in Louisiana, 1890-1910. Social Science History, 6, 9-33.

Ryan, J., & Saunders, T. (2004). Foreword to symposium on school finance litigation: Emerging trends or new dead ends? Yale Policy Review, 22, 463-480.

Cite This Article as: Teachers College Record, Date Published: February 15, 2007
https://www.tcrecord.org ID Number: 13382, Date Accessed: 3/5/2022 7:25:16 AM

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About the Author
  • Preston Green
    Penn State University
    E-mail Author
    PRESTON GREEN is Associate Professor in the Department of Education Policy Studies, Penn State University. He received a J.D. from Columbia University and an Ed.D. from Columbia University, Teachers College. His research focuses on the legal issues surrounding school choice and educational access. Recent publications include “Tricks of the Trade: State Legislative Actions in School Finance Policy that Perpetuate Racial Disparities in the Post-Brown Era” (American Journal of Education, 2005); “Urban Legends, Desegregation and School Finance: Did Kansas City Really Prove That Money Doesn’t Matter?” (Michigan Journal of Race & Law, 2006); and “Race-Conscious School Funding Strategies and School Finance Litigation" (Boston University Public Interest Law Review, in press). He is presently developing a joint degree program in law and education at Penn State.
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