The Rules We Play By, Part 4: Legal Interventions


Last Updated: May 30, 2013
 

This article appeared in the May 2013 Rural Policy Matters.

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In this fourth installment of the RPM series on why policy matters, we examine the role of legal interventions in shaping the law. In Part 1, we explored what policy is and how it shapes what’s possible. In Part 2: Who Makes the Rules?, we took at look at the responsibilities of the various entities charged with making and implementing education policy. And, in Part 3: Citizen Action and Research, we examined the role of research and citizen organizing in getting the attention of policymakers and the public.

Policy is the body of formalized rules and laws that govern an organization. It carries some means of enforcement and has a powerful influence on what people think is possible. In this way policy shapes both behavior and expectations.

Public policy in democratic societies and institutions are the mechanisms through which public intent is codified. Policymaking encompasses all the ways that members participate in shaping the common rules and laws that govern everyone.

Legal interventions in education policy

“The judiciary exists to enforce the law,” explains Amanda Adler, Director of the Rural Education Finance Center of the Rural Trust. “Lawsuits are brought when a law is being broken or because some existing law is bad. They provide people with a forum to demonstrate how they are being harmed, either by the way the law was written or the way it is being implemented.”

Lawsuits offer an avenue to engage the law, especially when political processes have not responded. They can be especially important when the plaintiffs are not backed by powerful interests or do not hold a political majority.

“A lot of people hate the legal part,” says Adler. “Many people think that bringing a lawsuit is a bad idea, a waste of resources, that it takes too long, or might not result in good outcomes.”

Yet lawsuits often have significant outcomes. In education those outcomes can affect entire groups of students, regions, or types of schools.

For example, 45 states have had some kind of school finance lawsuit, many of which were brought by rural plaintiffs.

“Most states can look at some policy change for the better that resulted from a school finance lawsuit,” says Adler. For example, a lawsuit in Vermont resulted in one of the fairest funding formulas in the country. Since it was implemented Vermont has seen significant progress toward improving achievement overall and closing long-standing achievement gaps. Wyoming saw similar outcomes after its finance lawsuit.

“Even if the ruling in the case is not chalked up as a ‘win’ for the plaintiffs, there can be positive things that happen as a result of the lawsuit itself,” Adler continues. “For example, the South Carolina Supreme Court found that the state constitution only requires a ‘minimally adequate’ system. However, it also listed specific components and outcomes, some of which are strong, including the requirement that schools prepare people to participate in society as citizens.”

Later, another South Carolina judge found one aspect of the state’s system unconstitutional. Adler explains: “The Court found that the education of the youngest students was not minimally adequate in the plaintiff districts. That has resulted in increased 4-K opportunities. Now there is a move to expand funding for 4-K. It won’t be enough to provide for all children who need it, but it will extend quality programs to other districts. That happened because of the lawsuit.”

Before filing, plaintiffs must understand their complaint. “A lawsuit forces plaintiffs to figure out their advocacy point,” says Adler. “You have to be able to show what’s wrong and how it is connected to the law. For example in school finance, you can’t just say the system is bad. You must point to policies driven by money that have bad effects on students. Then finance is your advocacy point.”

Sometimes lawsuits begin with one issue and build out. Adler points to New Jersey’s Abbott case. “The Abbott districts have grown their pre-K program into a national gold standard. They made pre-K an advocacy point. In Texas, there are all kinds of technical issues wrapped up in their finance lawsuits, but they are all, in some way, about tax policy.”

Once the advocacy point is established, advocates use the policy environment to construct a good case.

“A school finance lawsuit is a lot of work,” says Adler. “You have to find the experts, include districts that wish to participate as plaintiffs, raise the money. You have to match the people who can do all the needed analysis and are able to articulate the potential effects of various policy options with the people who understand the specific policy environment of the particular state and know how to work effectively in it.”

Fairness and justice

School lawsuits are often initiated by people who see that the law is not fair and want to fix it. Adler explains: “People who bring school finance lawsuits are driven by a sense of fairness, just like other people who stand up to injustice. When people stop believing the myth that their kids just can’t achieve or that it’s their fault as parents, they often begin to see that their kids aren’t getting the resources and opportunities that are being given to other students, and they want to take action.”

Most parents want opportunities for their children, and what they want for their kids are often the same kinds of things that researchers find work for students: smaller schools and classes, well-prepared and committed teachers, a strong curriculum, physical resources — like technology and supplies, decent facilities, after school and summer programs.

“If your school can’t get the money for what works because of where it is located, then your kids won’t have the same chances to succeed as others,” says Adler.

She continues, “It’s not as if research and information about what works isn’t available to states. If there’s not enough money to provide needed resources to all kids, no matter where they live, then it’s because the finance system is broken and discriminating against some kids. The law is not making it possible for all schools to do what their students need.”

Lawsuits are also a forum for spotlighting the effects of bad policy. “It may be hard for plaintiffs to recount in front of a judge the terrible condition of their buildings, how many uncertified teachers they have, or how many students fail the exit exam,” says Adler. “But it may be the most effective way to bring those issues to public attention.”

In this regard, lawsuits can draw a direct line between policy and children. “If your state is making budget decisions and cuts something necessary to the achievement of kids that your school can’t provide without state funding, that’s an important connection to show,” says Adler. “It’s a demonstration that policy matters, a way of holding policymakers accountable.”

Collateral effects

Lawsuits, especially those that involve plaintiffs from across a state, require a level of effort and collaboration and communication that can result in other outcomes that bring benefits. “Finance lawsuits with multiple plaintiffs build coalitions,” says Adler. “They connect rural places across a state. People get to know each other and share knowledge and experience.”

“A lawsuit can give rural people a unified political voice that doesn’t get diluted or marginalized in the same ways that tend to happen in the political process.”
— Amanda Adler, Director of the Rural Education Finance Center of the Rural Trust

When a lawsuit is filed, it can cause policymakers to take notice of how many of their constituents are rural. “Lawsuits can demonstrate common goals and call lawmakers out for not responding,” says Adler. “A lawsuit can give rural people a unified political voice that doesn’t get diluted or marginalized in the same ways that tend to happen in the political process. It’s a way to say: what you’re doing is wrong. The results may not be measurable, but they are important.”

A lawsuit in one issue can also build the capacity of plaintiffs to tackle other issues. For example, the Leandro plaintiff districts and their supporters in North Carolina first organized for a finance lawsuit. But the group has continued to work together and has taken on other cases as well. Not long ago, the coalition sued and won important changes to policies governing discipline of suspected gang members.

“Rulings also give you something to measure progress against,” explains Adler. Here again, the Leandro case offers an example. “One outcome following that case was the requirement that every student have a Personalized Education Plan (PEP) to outline their educational program and a plan for graduation. So, if five kids in your community drop out of school and none of them have ever heard of a PEP, then there it is, the thing you can take to the school to do something for kids who are not being served.”

Adler points out that in most finance lawsuits there is no time limit on implementation of the remedy. “The remedy order in Kansas brought a resurgence of money to schools,” she says. “Then that money dribbled away and was slashed through legislative actions. So the plaintiffs brought a new lawsuit. That’s part of policy organizing.”

Preparing for the Remedy

If the court rules for the plaintiffs in a school finance lawsuit, it will usually direct the legislature to fix the problem by changing the law, in this case the laws that govern school funding. Courts may be very specific about what the remedy should entail by identifying components or setting benchmarks. Or, courts may offer little or no guidance. Likewise, courts may provide intense oversight and scrutiny or little or none.

Either way advocates need an organizing strategy to help shape the remedy. They will need to prepare to use research and policy organizing strategies to engage with legislative leaders as new finance laws are developed. In other words, the ruling is not the end of the effort. 

“Just to be clear, the outcome of school finance cases isn’t always a great success, or even a small success,” says Adler. “Some cases have resulted in the demise of the very schools who led the effort.”

For example, Adler references West Virginia and Arkansas. “Those are two states where rural plaintiffs won their lawsuits. And the unintended consequences of the case — namely school or district consolidation — prompted the formation of strong rural school advocacy organizations.”

In West Virginia, one of the early rural finance cases, plaintiffs in Pauley v. Kelly charged that rural schools were not receiving adequate funding. The court ruled in their favor: plaintiffs “won” the lawsuit. The legislative fix, however, included a massive school consolidation plan. Challenge WV was organized, in part, in response to the closure of rural schools resulting from the “remedy.” The group has continued to channel the efforts of rural activists, expanding into a statewide school-community leadership project that has had significant impact on education policy.

Years later when rural plaintiffs won the Lake View case in Arkansas, the legislature offered a similar response: more money and a lot of consolidation of school districts through new minimum enrollment thresholds. By this time rural advocates were more familiar with this sequence of events. They organized across the state and formed the group Advocates for Community and Rural Education (ACRE). They produced information, shared research, and helped rural residents connect to their state legislators to express their wishes.

Although the state did not eliminate district enrollment thresholds — the Lake View school district and several dozen others were consolidated out of existence solely because they were small — the state did scale back the thresholds considerably in response to pressure from rural advocates.

ACRE has continued its work to strengthen and support rural schools across the state. Now operating under the trade name Rural Community Alliance, the organization boasts some sixty local chapters that advocate for rural communities and schools, work on community development efforts, offer trainings to members, and work together to affect policies that impact rural people, communities, and schools.

Carrying the banner

People who are trying to understand what works in education or why students in some schools and districts are struggling need to figure out what’s going on with their state finance formula, says Adler. “There’s very likely a fairness or adequacy issue in it. Either, there is not enough money to do what is needed or the money is not being distributed in an equitable way, or maybe both.”

It’s also important for people who want to get involved to get connected to people who have done the work. “Most states have had some kind of ongoing effort,” says Adler. “It’s very likely that the people who led the lawsuit effort are tired; they may be nearing retirement. They will probably be very happy to talk to new interested people about why they brought the lawsuit and why they brought it they way they did, what was successful, what was not, what the lawsuit left unanswered, what other avenues could be pursued. There’s so much to learn from people with histories of engagement on these issues.”

Rural children, parents, school districts, and school officials have been frequent plaintiffs in the many cases that have challenged inequitable and inadequate school funding systems. But regardless of who brings the lawsuit, rural schools have a high stake in the outcomes of school finance litigation. Therefore, it is important for future rural advocates to understand the rulings in previous cases and how remedies have been implemented. Understanding what has already happened can help advocates plan strategically, determine whether or how a lawsuit might be a wise action, and predict or mitigate negative outcomes for rural schools.

It is often in rural areas that the most significant inequities and the deepest inadequacies are most evident. Rural residents across the country have used school finance lawsuits to bring significant changes to schools in all locales. And rural advocates will remain an important and active part of national efforts to make schools strong and fair for all students, no matter where they live. 

 

Read more from the May 2013 Rural Policy Matters.