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A Quarter Century Of Challenges And Progress In Education, And An Agenda For The Next Quarter Century, Albert H. Kauffman

Faculty Articles

As a native Texan who attended intentionally segregated Texas public schools, then an effectively segregated Texas public law school, litigated many cases against discrimination in Texas education, and now teaches Texas education law, I have what I think to be informed opinions on where we have been, where we are going, and what we should do next. I will briefly describe our sad history of discrimination in segregation, school finance, testing, higher education, and lack of responsiveness to newer issues in education at all levels. I will then summarize some of our ongoing challenges and some possible approaches that I …

Hb 305: A Step In The Right Direction For Ohio's Students, Jacob Davis

Akron Law Review

For nearly twenty-four years, the state of Ohio has funded education unconstitutionally. Columbus lawmakers have paid little attention to the DeRolph progeny of cases, which repeatedly provided that an education funding formula rooted in property tax values fails to pass constitutional muster. In 2019, lawmakers finally provided a solution in HB 305: the Cupp-Patterson proposal. This paper will first survey the checkered history of school funding litigation in Ohio. Then, this newly proposed approach to educational funding will be detailed and critically evaluated, with a focus placed on the hurdles that remain before it can become law. Ohio’s students deserve …

House Bill 3: An Iou Texas Public Schools And Communities Of Color Cannot Afford, Candace L. Castillo

The Scholar: St. Mary's Law Review on Race and Social Justice

A history of school finance litigation and legislation shows there are inherent and structural problems in Texas’s education finance system. Like many government and social structures, the Texas school finance system is built to benefit school districts that have greater access to wealth to begin with and creates inequalities between rich and poor populations as well as between people of color and Caucasians. House Bill 3 went into effect in 2019 and promises improvements to “recapture” calculations, increases in certain allotments, as well as salary increases for some Texas teachers. Some changes to education finance were sorely needed such as …

Special Education's Lessons For School Funding Litigation, Spencer C. Weiler, Scott R. Bauries

Law Faculty Scholarly Articles

In this Article, we make the case that the currently dominant approaches to challenging the constitutionality of a state’s funding efforts have proven ineffective. Instead, future lawsuits designed to bring about lasting funding reform should be informed by the successes within the field of special education by asking courts to examine individual-rights claims based on one student, or several similarly-situated individual students, petitioning the court for relief tailored to that student or class. Such an approach to school finance litigation could result in a decision that limits relief to just one application of the entire funding formula, and the remedy …

The Texas Supreme Court Retreats From Protecting Texas Students, Albert H. Kauffman

Faculty Articles

The Texas Supreme Court has now fully retreated from a powerful line of previous Texas Supreme Court decisions protecting the rights of public school students and low-wealth districts.' Returning to Texas history's dual system of poor districts and wealthy districts, the Court removed itself from its constitutional role as a vital ingredient in progressing toward school finance equity and adequacy and has instead regressed to a dual school system in Texas that is divided between poor and wealthy districts.

This regression becomes evident by analyzing seven major school finance decisions: (1) Edgewood Independent School District v. Kirby (Edgewood I); (2) …

The Texas Supreme Court Retreats From Protecting Texas Students, Albert Kauffman

The Scholar: St. Mary's Law Review on Race and Social Justice

This Article criticizes the 2016 Texas Supreme Court school finance decision, the latest of seven decisions starting in 1989, for its disregard of both the record in the case and the realities of the Texas Constitution and Texas politics. The Article also focuses on how standards for reviewing legislation have changed and the Texas Supreme Court's irrational and unfounded retreat to the "money doesn't make a difference" theory of school finance. Finally, the Article recommends a return to an objective, comprehensible, enforceable and constitutional system of review, and concludes with a prayer for holdings that recognize the inequities of the …

Squeezing Public Schools’ Lemons: Theorizing An Adequacy Challenge To Teacher Tenure, Peter M. Szeremeta

Washington and Lee Law Review

No abstract provided.

The Runaway Wagon: How Past School Discrimination, Finance, And Adequacy Case Law Warrants A Political Question Approach To Education Reform Litigation, Anthony Bilan

Notre Dame Law Review

Courtroom battles surrounding school finance and adequacy claims are very much alive today, nearly forty years after their progenitor, Serrano v. Priest. In spawning a potential new chapter in this history, a trial court in California struck down its state’s battalion of teacher tenure and employment laws under a legal analysis based in the education quality that those laws provided. This “landmark” case, Vergara, is generating conversation that its results could be duplicated throughout the nation. In a format familiar to school finance litigation, the Vergara court found that the state’s tenure statutes so detrimentally affected teaching that …

Schoolhouses, Courthouses, And Statehouses: Educational Finance, Constitutional Structure, And The Separation Of Powers Doctrine, Michael Heise

Michael Heise

No abstract provided.

The Courts, Educational Policy, And Unintended Consequences, Michael Heise

Michael Heise

Recent school finance litigation illustrates yet again how law can generate unintended policy consequences. Seeking to improve student achievement and school accountability, more states now turn to educational standards and assessments. At the same time, a multi-decade school finance litigation effort develops and changes its theoretical base. Recently, educational standards and school finance litigation converged in a way that enables school districts to gain financially from their inability to meet desired achievement levels. Specifically, courts increasingly allow litigants and lawsuits to transform standards and assessments into constitutional entitlements to additional resources. As a consequence, increased legal and financial exposure for …

No Lawsuit Left Behind, Michael Heise

Michael Heise

No abstract provided.

Litigated Learning, Law's Limits, And Urban School Reform Challenges, Michael Heise

Michael Heise

This Article assesses the likely efficacy of litigation efforts seeking to enhance equal educational opportunity by improving student academic achievement in the nation's urban public schools. Past education reform litigation efforts focusing on school desegregation and finance met with mixed success. Current litigation efforts seeking to improve student academic achievement promise to be even less successful because student academic achievement involves variables and activities located further from the reach of litigation than such variables as a school's racial composition and per pupil spending levels. Moreover, efforts to improve student achievement in the nation's urban public schools--especially high poverty schools--face additional …

The Rights Of Disabled Students, Derek W. Black, Robert A. Garda Jr., John E. Taylor, Emily Gold Waldman

Robert A. Garda

Education Law: Equality, Fairness, and Reform situates case law in the broader education world by including edited versions of federal policy guidance, seminal law review articles, social science studies, and policy reports. It offers comprehensive coverage of education law while also focusing specifically on equality and civil rights issues. It includes individual chapters on each major area of inequality: race, poverty, gender, disability, homelessness, and language status. Those chapters are followed by a structured approach to the complex first amendment questions, dividing the first amendment into three different chapters and addressing, in order, freedom of expression and thought, religion in …

Civil Rights, Charter Schools, And Lessons To Be Learned, Derek W. Black

Faculty Publications

Two major structural shifts have occurred in education reform in the past two decades: the decline of civil rights reforms and the rise of charter schools. Courts and policy makers have relegated traditional civil rights reforms that address segregation, poverty, disability, and language barriers to near irrelevance, while charter schools and policies supporting their creation and expansion have rapidly increased and now dominate federal policy. Advocates of traditional civil rights reforms interpret the success of charter schools as a threat to their cause, and, consequently, have fought the expansion of charter schools. This Article argues that the civil rights community …

Education's Elusive Future, Storied Past, And The Fundamental Inequity In Between, Derek W. Black

Faculty Publications

No abstract provided.

Middle Income Peers As Educational Resources And The Constitutional Right To Equal Access, Derek W. Black

Faculty Publications

Concentrated poverty in public schools continues to be a leading determinate of the educational opportunities that minority students receive. Since the effective end of mandatory desegregation, advocates have lacked legal tools to address it. As an alternative, some advocates and scholars have attempted to incorporate the concerns of concentrated poverty and racial segregation into educational litigation under state constitutions, but these efforts have been slow to take hold. Thus, all that has remained for students in poor and minority schools is the hope that school finance litigation could direct sufficient resources to mitigate their plight. This Article offers another solution. …

Middle-Income Peers As Educational Resources And The Constitutional Right To Equal Access, Derek W. Black

Faculty Publications

Concentrated poverty in public schools continues to be a leading determinate of the educational opportunities that minority students receive. Since the effective end of mandatory desegregation, advocates have lacked legal tools to address it. As an alternative, some advocates and scholars have attempted to incorporate the concerns of concentrated poverty and racial segregation into educational litigation under state constitutions, but these efforts have been slow to take hold. Thus, all that has remained for students in poor and minority schools is the hope that school finance litigation could direct sufficient resources to mitigate their plight. This Article offers another solution. …

White Paper: Projected Savings From School Reform, Jeff Abbott

Jeff Abbott

This paper explores possible school district savings from deregulation, de-politicization, and consolidation of school districts in Delaware County, Indiana. The author projected a 4.5 million dollar savings by the Indiana legislature changing the school districts' governance structures in Delaware County, Indiana.

Courthouses Vs. Statehouses?, William S. Koski

Michigan Law Review

Just over twenty years ago, the Kentucky Supreme Court declared the commonwealth's primary and secondary public-education finance system-indeed, the entire system of primary and secondary public education in Kentucky-unconstitutional under the "common schools" clause of the education article in Kentucky's constitution. That case has been widely cited as having ushered in the "adequacy" movement in school-finance litigation and reform, in which those challenging state school-funding schemes argue that the state has failed to ensure that students are provided an adequate education guaranteed by their state constitutions. Since the Rose decision in Kentucky, some thirty-three school-finance lawsuits have reached final decisions …

Fate Of The Detroit Public Schools: Governance, Finance And Competition, Peter J. Hammer

Law Faculty Research Publications

No abstract provided.

State Constitutions And Individual Rights: Conceptual Convergence In School Finance Litigation, Scott R. Bauries

Law Faculty Scholarly Articles

This Article begins by reviewing Wesley Newcomb Hohfeld's “fundamental conceptions” and expanding his theory to the arena of state constitutional rights, building on recent work by other scholars. From this foundation, it moves to a discussion of the sources of rights to education. The Article then examines the text of relevant state constitutional provisions, as well as the ever-changing landscape of school finance litigation, the principal vehicle through which litigants assert constitutional claims based on ostensible education rights. Next, it systematically analyzes the population of reported cases from the highest state courts to identify Hohfeldian conceptions of education rights held …

Bennett Plan Aims To Fast-Forward Education Gains, Jeff Abbott

Jeff Abbott

This is an op ed article appearing in the Indiana Policy Review 25 newspaper publisher network throughout Indiana. It explains the benefits of Indiana's Race to the Top proposal.

Shifting Money Into The Classroom, Jeff Abbott

Jeff Abbott

The author argues that by adopting the freedom school model of public school governance, which de-regulates and de-politicizes public schools, substantial tax savings will occur.

Can Our Community “Afford” This Bond Issue For Our School? Proposed Factors For Determining Affordability Of School Building Projects, Jeff Abbott

Jeff Abbott

This paper explores the literature of whether a community can afford a public school bond issue. This paper sets forth recommended criteria to determine community affordability of local bond issues.

The Story Of San Antonio Independent School Dist. V. Rodriguez: School Finance, Local Control, And Constitutional Limits, Michael Heise

Cornell Law Faculty Publications

Part of the Education Law Stories, this book chapter tells the story behind San Antonio Independent School Dist. v. Rodriguez. Mindful of the challenges incident to the federal courts' effort to dismantle de jure and de facto school segregation, the Rodriguez decision evidences reluctance by some of the Justices to become ensnarled in an effort to dismantle school finance systems in way that would affect an overwhelming majority of the nation's public schools. By side-stepping such a confrontation, Rodriguez implicitly reveals important aspects about the federal courts and, in particular, how the Justices view their role in our federal system …

Litigated Learning, Law's Limits, And Urban School Reform Challenges, Michael Heise

Cornell Law Faculty Publications

This Article assesses the likely efficacy of litigation efforts seeking to enhance equal educational opportunity by improving student academic achievement in the nation's urban public schools. Past education reform litigation efforts focusing on school desegregation and finance met with mixed success. Current litigation efforts seeking to improve student academic achievement promise to be even less successful because student academic achievement involves variables and activities located further from the reach of litigation than such variables as a school's racial composition and per pupil spending levels. Moreover, efforts to improve student achievement in the nation's urban public schools--especially high poverty schools--face additional …

No Lawsuit Left Behind, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Urban Legends, Desegregation And School Finance: Did Kansas City Really Prove That Money Doesn't Matter?, Preston C. Green Iii, Bruce D. Baker

Michigan Journal of Race and Law

This Article examines whether conservative critics are correct in their assertion that the Kansas City, Missouri School District (KCMSD) desegregation plan clearly establishes that no correlation exists between funding and academic outcomes. The first section provides a summary of public education in KCMSD prior to 1977, the beginning of the Missouri v. Jenkins school desegregation litigation. The second and third sections analyze whether the Jenkins desegregation and concurrent school finance litigation (Committee for Educational Equality v. State) addressed these problems. The fourth section provides an overview of school finance litigation and explains how KCMSD desegregation plan has been …

Public School Reform: Kentucky's Solution, Debra H. Dawahare

University of Arkansas at Little Rock Law Review

No abstract provided.

The Courts, Educational Policy, And Unintended Consequences, Michael Heise

Cornell Law Faculty Publications

Recent school finance litigation illustrates yet again how law can generate unintended policy consequences. Seeking to improve student achievement and school accountability, more states now turn to educational standards and assessments. At the same time, a multi-decade school finance litigation effort develops and changes its theoretical base. Recently, educational standards and school finance litigation converged in a way that enables school districts to gain financially from their inability to meet desired achievement levels. Specifically, courts increasingly allow litigants and lawsuits to transform standards and assessments into constitutional entitlements to additional resources. As a consequence, increased legal and financial exposure for …