The Supreme Court’s Educational Equity Metric

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Does the U.S. Supreme Court’s decision in Horne v. Flores have any impact on New Jersey’s school funding system? On June 25th, the Court ruled that measuring educational equity by compensatory funding– the way we do it in the Garden State – is unconstitutional. However, our history of Abbott funding and our new School Funding Reform Act rely on that definition. Are we now out of compliance with legal precedent?

Here’s a quick overview. (Here’s the full text.) The 5-4 decision, written by Justice Alito and signed by Justices Scalia (two Jersey boys!), Roberts, Kennedy, and Thomas, argues that disparities in school funding are irrelevant to equal opportunity. The harsh dissent, authored by Justice Breyer and signed by Justices Stevens, Ginsberg, and Souter, argues that school funding is, in fact, directly relevant to equity. It’s a microcosm of a global debate, and the funding=equity proponents just lost, at least in Nogales, AZ. In other words, the Supreme Court has ruled that school funding formulas that disregard academic performance won’t stand up in court.

It’s not about input. It’s about output.

A quick overview: the Arizona Superintendent of Public Instruction and members of the Arizona state legislature challenged the judgments of the U.S. District Court of Arizona and the United States Court of Appeals for the Ninth Circuit over a civil contempt charge that the state had failed to adequately fund English Language Learners (ELL) programs in Nogales, a poor town of 20,000 people on the border of Mexico. The State Legislature had responded to the class action suit brought by parents and students in Nogales by increasing ELL funding by $80 per pupil per year with a two-year limit for the money. Both lower courts ruled that the $80 increase was inadequate and not rationally related to the needs of ELL’s and that the two-year limit was equally “irrational.” While the Legislature proceeded to incur $20 million in fines, the case went to the U.S. Supreme Court, which in June overturned the rulings of both lower courts.

How did Justice Alito and his brethren justify reversing the decisions of the lower courts that Arizona was violating the Equal Educational Opportunity Act (EEOA) of 1974 by not providing enough money for adequate language instruction?

Because the EEOA focuses on the quality of educational programming and services to students, not the amount of money spent, there is no statutory basis for precluding petitioners from showing that Nogales has achieved EEOA-compliant ELL programming in ways other than through increases incremental funding.

And, the majority argue, the Nogales’ schools are EEOA-compliant because 1) they are using a language-immersion program instead of a bi-lingual program, which research shows is superior; 2) The No Child Left Behind legislation provides adequate accountability and, they suggest, can actually supplant EEOA requirements; 3) the superintendent of Nogales has implemented structural and managerial changes that bring the schools up to snuff; 4) Arizona has increased the state’s general education fund.

In other words, the combination of these four elements are adequate to establish educational equity, enough to provide for adequate output or performance. The amount of money distributed per pupil is irrelevant. In addition, says Alito, the ruling reflects

a growing consensus in education research that increased funding alone does not improve student achievement, [and] NCLB expressly refrains from dictating funding levels. Instead it focuses on the demonstrated progress of students through accountability reforms

(The details about money, by the way, are listed in Appendix B of Justice Breyer’s dissent. Nogales received $4,605 per pupil in 2006-2007, with an extra $639 for ELL funding. “Nogales received less per-pupil funding in 2006 than the average provided by every State in the Nation. New Jersey provided the highest at $14,954.” As far as performance goes (see Appendix A), ELL students in Arizona perform dramatically below non-ELL students on state assessments.)

Breyer’s dissent is virulent in its disdain for the majority’s reasoning that pro forma regulatory changes are interchangeable with the reality of equal opportunity. He points out the poor performance of Nogales students (their high school is rated 575th out of 629 in Arizona) and the state’s failure to provide adequate financial resources. He also takes issue with the majority’s profession that there is a consensus that educational funding is irrelevant to academic performance:

Some believe that “increased funding alone does not improve student achievement, and [the decision] refers to nine studies that suggest that increased funding does not always help. I do not know what this has to do with the matter. But if it is relevant to today’s decision, the Court should also refer to the many studies that cast doubt upon the results of the studies it cites.

Of course, in N.J. we’ve been playing out the same conflict for years through Abbott litigation and now Corzine’s School Funding Reform Act. The Abbott decisions, at least temporarily vacated by the State Supreme Court, sent extra money to poor urban kids based on the assumption that educational deprivation is compensated for by increased funding. The recent School Funding Reform Act, along with curricular reforms, state-wide accountability regulations, and high school redesign, tries to rein in the excesses of Abbot funding by distributing money per pupil, but the assumption remain the same: equalize the input and you’ll equalize the output.

Can we separate funding from performance? Should we try? In response to Justice Alito’s citation of an educational consensus that the two should be separated, Justice Breyer writes, “the relation of a funding plan to improved performance is not an issue for this court to decide through footnote references to the writings of one side of a complex expert debate.” But New Jersey has taken sides for years. How would the Justices rule?

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1 Comment

  • Bruce, September 22, 2009 @ 11:51 pm Reply

    The growing consensus to which Alito refers is far from a growing consensus and in Horne v. Flores that “consensus” is cited to a single source which at the time was unpublished. The source is a book by Eric Hanushek and Alfred Lindseth and the book relies on a number of deeply problematic analyses and citations to even more problematic unpublished prior works (which I will elaborate on my own blog at some point in the near future, as well as in a lengthy review article).

    Hanushek frequently serves as a witness for the defense (states) in such cases and Lindseth is actually an attorney with a firm that represents states in such cases. So, the consensus to which Alito refers is a consensus as constructed by a lawyer and expert witness who represent states in defense of school funding cases. For full disclosure – I have testified on behalf of plaintiffs in a handful of such cases and consulted for states as defendants in two such cases.

    The 5/4 split in Flores is indicative that the case fell entirely along political ideology lines within the court – and not that the preponderance of evidence or consensus among experts dictated the decision. It clearly did not. The Amicus Brief filed by Hanushek and colleagues provided a convenient citation for Alito. While the Amicus brief filed by Hanushek and colleagues relied heavily on his book, he and Lindseth refused to release the book or its contents to other parties filing counter briefs prior to the oral arguments in Flores. Their brief even misquoted my own work as favoring their opinion.

    The Amicus Brief filed in opposition to Hanushek’s Amicus brief (with colleagues) can be found here:

    Additional counter to the Hanushek & Lindseth argument can be found here:

    In any case, there is no new equity metric provided here and the bottom line on Flores is that the Supreme Court handed it back to the lower court to evaluate the quality of programs and outcomes rather than focusing on the dollar inputs through the state aid program. One might argue that this is much like the shift that occurred in 1998 in the Abbott litigation where the focus changed from parity of funding inputs to providing whatever level of funding might be necessary to implement and sustain reforms that are assumed to matter in high poverty urban settings, like early childhood programs and specific reform models and strategies. But, I think it’s a stretch either way to try to link the Flores court findings to the NJ context.

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