The economic recession hit school finance litigaton hard over the past few years. Litigation victories fell off of the previous decade's torid pace. Some advocates feared suing the state during times of economic crisis. Courts would be less likely to intervene in budget issues given the circumstances, and victory in court would probably be pointless anyway because remedies still had to make it through legislatures with other more pressing problems.
Now that we can see light at the end of the tunnel, litigation may heat up again. A few signs suggest it already has in Florida, Washington, and Illinois. While the courts in these states have a track record of rejecting school finance claims, litigants have recently pressed forward with new claims and, in Washington, scored a victory. As our financial outlook improves, this trend will continue.
I fear that the coming round of school finance litigation will simply be more of the same: a focus on money and an attempt to regain the funding lost during the recession. Public schools (and universities) need their budgets restored to pre-recession levels, but it would be a mistake for school finance litigation to maintain a singleminded focus on money. In a forthcoming article in Boston College Law Review, I lay the theoretical and doctrinal grounds for expanding its impact to issues of efficiency and equitable student assignment policies.
The concept of economic efficiency, which is embedded in some educational clauses, can gain significant traction. Efficiency is compelling, if not necessary, during times of financial constraint and budgets will only rebound over a period of time. Equitable student assignments, in contrast, may not inspire a sense of immediate need. Yet, states can more efficiently deliver constitutionally mandated equal and/or quality educational opportunities in socioeconomically integrated schools than they can in segregated ones. Delivering equal or quality education in schools with concentrated poverty comes at a high cost. Integrated education can do the same at a lower cost.
The case for integration, however, does not rest solely on the claim of efficiency. My primary argument is that that a right to equal access to middle income peers logically follows from prior state court precedent. I also include an emprical study of racially inequitable access to middle income peers within school districts and its correlation with racial achievement gaps. The chart below offers a vivid example of lower achievement gaps in those districts with the most equitable access to middle income peers.
A draft of the article, "Middle Income Peers as Educational Resources and the Constitutional Right to Equal Access," is available at ssrn.
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