National Standards and School Finance Litigation

Guest post by Jim Ryan

Ok, I’m done plugging my book; that’s as much marketing as I can stomach.  Back to some questions that have puzzled me for a while and that might be of some interest to the rest of you.  This is a long post, for which I apologize in advance.

The question for today is what might national standards mean for school finance litigation and vice-versa?  I’m not tackling here whether school finance litigation is a good or a bad thing, or whether more money is the answer for some schools.  Instead, I want to focus on the impact that national standards might have on the litigation and the impact that the litigation might have on the standards.  I’ll leave it to you to judge whether these potential impacts are, in the grand scheme of things, good or bad.

Some quick background:  School finance litigation has been going on, in one form or another, for about fifty years.  All of the action these days is in state courts, where claims are based on state constitutions.  Each state constitution has an education clause, which basically guarantees children the right to attend school and sometimes describes the sort of school system required—“through and efficient” or “free and appropriate,” etc.  School finance attorneys have argued that these clauses guarantee students the state constitutional right either to equal educational opportunity or to an adequate education.  These rights, if plaintiffs succeed, are translated into dollar figures, which represent the amount states need to provide in order to equalize funding or make it adequate.  All but four states have seen their financing systems challenged; plaintiffs have prevailed in about half of the states.

For a while now, a lot of school finance reform advocates have argued that the standards and testing movement can work to the advantage of school finance plaintiffs.  (Those who oppose school finance litigation have feared the same development.)  Standards can be used by courts to define what counts as an “adequate” education, and test scores can be used to show whether students are receiving such an education.  This relieves courts of the onerous and arguably improper task of defining what constitutes an adequate education, and test scores could, in theory, provide excellent evidence of whether students are receiving an adequate education.  Courts would be left the task of determining whether existing resources are sufficient to meet the standards and pass the tests—which is akin to the task of creating opportunity to learn standards—but at least the knotty definitional problem would be solved.

I’ve never bought this argument.  The reason is that relying on standards to define an adequate education will inevitably lead to relying on test scores as evidence of whether the standards are being met.  Test scores, however, as everyone now realizes, don’t prove much about the quality of a particular school.  Faced with the accountability provisions in NCLB, many states have gamed their tests, either making the tests easier, lowering cut scores, or both.  Why, if you are looking to get more money from the state, would it be to your advantage to rely on the low bar most states have established as the definition of what the state constitution requires?  Where standards are high and tests are meaningful, by contrast, school finance litigation risks creating pressure to lower the standards or make the tests easier—much like the accountability provisions in the NCLB create perverse incentives to lower the bar.

Enter national standards, or the “common core” standards as they are being called.  More than half the states have already adopted these standards, which cover reading and math.  As the standards get implemented, two sets of questions arise about the potential relationship between these standards and school finance litigation.

First, will school finance attorneys use these new standards to define an “adequate” education?  The Fordham Foundation reviewed the standards and generally gave them a thumbs up, concluding that they are more rigorous than the standards in most states. School finance attorneys may well be tempted, therefore, to argue that these new standards should be used to define, at least partially, what constitutes an adequate education.

Second, if the standards are used in school finance litigation, what sort of incentives will that create for states?  Andy has rightly mentioned on this blog that standards are only one piece of the picture.  Another, huge piece, are the tests used to determine whether the standards are being met.  Because relying on standards in school finance litigation inevitably leads to relying on test scores, one could imagine states undertaking efforts to game the tests in order to avoid liability in school finance cases.  At the moment, what sort of tests will be used and how much control states will have over them and their scoring, remain to be seen.  But it stands to reason that the more pressure—either financial or political—states will face for poor test scores, the more effort they will make to produce good test scores, even if that means making the tests easy to pass.  Who controls the tests, therefore, will matter a great deal.

All of which raises the more fundamental questions underlying standards, testing and accountability.  Is it possible to hold schools accountable, either through legislation or court decisions, without creating perverse incentives to lower the bar?  If those incentives cannot be avoided, is it realistic to expect the federal government to prevent states from acting on them?  And, just as one last kicker:  Might it be better for the federal government to get out front here and encourage the development of national opportunity to learn standards, rather than leaving this issue to piecemeal litigation in the states?