The Pew Charitable Trusts

Courts in half the country are taking on the tasks of state budget writers in public education, forcing legislatures to pump more money into elementary and high schools and deciding how much more money needs to be spent and on which students.

Providing public education is one of the basic duties of states and their lawmakers, yet 25 states currently are entangled in lawsuits that get judges involved in deciding how to educate students equally.

State officials across the nation are worried that test scores and standards required under the federal No Child Left Behind Act will fuel even more litigation over schools.

Nationally, states use more than a third of their budgets to supplement local property taxes to pay for educating children from kindergarten through high school. The federal government provides about nine percent of the total $400 billion spent annually on primary and secondary education.

Fifty years after the U.S. Supreme Court famously shook up the nation's public schools by outlawing "separate but equal" education, courts still are reviewing the complex formulas that states use to distribute education funds and finding that poor and minority students don't always get the same amount of money as those in wealthier districts. More importantly, many courts have found that poor and minority students are not receiving the quality of education guaranteed by state constitutions.

State financing systems rely too heavily on property taxes, a practice that is unfair to poorer communities, Ross Wiener of the Education Trust told lawmakers at an April meeting of the National Conference of State Legislatures. State legislatures have a role in equalizing education and cannot continue to pass the education buck to local and federal governments, he said. Education Trust is an independent, nonprofit organization that receives part of its funding from the Pew Charitable Trusts, which also funds Stateline.org.

In the most recent school finance ruling, a Massachusetts state court ruled April 26 that the state was paying too little to educate low-income and minority students. A state court decision April 15 declared that Montana was providing too little money statewide.

In the past 30 years, only Delaware, Hawaii, Mississippi, Nevada and Utah have not had lawsuits over their public school funding systems. Many states, such as Montana and Kansas, are dealing with a second round of lawsuits.

In Kansas, the state is under a county judge's July 1 deadline to increase school spending by nearly a billion dollars annually.

"We've been at this for five years," said attorney John Robb, whose firm is representing two Kansas school districts in a 1999 suit filed against the state in Shawnee County, Kan.

District Court Judge Terry Bullock ruled in 2003 that Kansas funding plan provided too little money for low-income and minority students and for mid-sized school districts where those groups were concentrated, Robb said.

The Kansas ruling was one of many that analysts say are being decided on the basis of "adequacy": How much it costs to give all students the same quality of education.

The concept is relatively new, emerging from lawsuits of the late 1980s, and different from the idea of equity: Providing the same amount of money for each student, according to the Campaign for Fiscal Equity, a group that researches shool financing lawsuits nationally. For example, an adequate education costs more for students in special education, low-income students and students who are not fluent in English.

Since the 1980s, about two-thirds of the adequacy lawsuits against states have been successful, according to the center.

Now, the federal No Child Left Behind Act will bolster the claims of groups filing adequacy claims, Wiener of Education Trust warned state lawmakers.

The law, signed by President George W. Bush in 2002, requires states to test students annually in reading and math from third- through eighth-grade plus 10th-grade. States also are required to set the passing scores for those tests and to report the results broken out by race, income level and English fluency.

Choosing a "proficient" score provides a possible legal definition of what is adequate, said Stephen Smith an education analyst at the National Conference of State Legislatures.

The scores of minority and disabled students who did not pass Kansas' tests were evidence of who was not getting a fair shake, Robb said. "The state [Department of Education] did our work for us."

Connecticut state Sen. Thomas P. Gaffey (D) predicts a "whole new generation of lawsuits" will result from No Child Left Behind, benefiting lawyers instead of needy children. The solution is not just to put more money into education, but also to focus on programs that work, Gaffey said.

Court decisions, however, have not sparked immediate action in many of the long-running lawsuits over how much a public education should cost and how to pay for it.

Earlier this year, the Arkansas Legislature submitted a court-ordered plan to revamp the state's school funding formula. The state Supreme Court will rule on that proposal this summer and could force legislators into their second special session in two years.

Most of the 25 state lawsuits have been in a "holding pattern for a number of years," Smith said.

The situation in Kansas also is not likely to be resolved anytime soon. The Kansas Legislature returned to Topeka last week for their wrap-up session to continue weighing the political costs of new or increased taxes.

Any result will be a stopgap solution, said Dale Dennis, deputy commissioner of education in Kansas.

Although Kansas is under a July 1 deadline to fix the problem, state officials already are launching their appeal to the state Supreme Court.

"The Legislature is thumbing its nose at the trial judge," Robb said, "hoping they'll get a better deal from the state Supreme Court."

According to the Campaign for Fiscal Equity, states currently embroiled in school finance litigation are: Alaska, Arizona, Arkansas, California, Connecticut, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, South Carolina, Tennessee, Texas and Wyoming.