Finance lawsuits.

Lindseth, Alfred A.

In their article "School-Finance Reform in Red and Blue" (research, Summer 2010), Christopher Berry and Charles Wysong not surprisingly find that partisan politics affect how much a state spends on K-12 education and how such money is allocated. However, my own experience suggests that it is more politics as usual, rather than the particular terms or even fact of a court judgment, that leads to the outcomes found by the authors. I am therefore concerned that the article may overstate the effects of school-finance judgments (SFJs).

There are several reasons for my concerns. First, some of the court decisions on which they rely are not decisions holding the state's school-financing system unconstitutional, but are preliminary decisions in cases not actually decided on their merits until years later. For example, the 1995 decision in New York's Campaign for Fiscal Equality case cited by the authors simply permitted the adequacy case to proceed to trial. It was not until early 2001 that the state's school-finance system was first declared unconstitutional. Similarly, in South Carolina, it was in 2005, not 1999, that the courts declared the state's system of school finance unconstitutional.

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The impact of relying on these preliminary decisions could be significant. In New York, for example, some of the largest increases in education aid in the state's history took place between 1995 and 2001, well before the first court decision declaring the system unconstitutional. It is also interesting to note that the huge increases in New York in 2006 were enacted despite a decision by the state's highest court several months earlier that a significantly lower appropriation was needed to meet constitutional requirements, indicating that something other than the court decision was behind the unprecedented increases.

Second, as the authors themselves point out, the small number (three) of Republican states with an SFJ gives one pause. Wyoming runs counter to their findings, with dramatic increases in school spending due mainly to budget surpluses and an ability to tax mineral interests in the state without significant political retribution. The decisions in the other two Republican states were also unusual. In 2003, the Ohio Supreme Court decided it had no jurisdiction to enforce its earlier 1997 ruling, removing any threat to the legislature's authority that the court order posed, In New Hampshire, the adequacy aspects of the court decrees were very limited, with the court merely ordering the legislature to define an "adequate" education.

Finally, in selecting states with SFJs, the authors apparently made no attempt to distinguish between "equity" cases, which focus on equalizing funding, and "adequacy" cases, which have as their goal increased funding. An example is Kansas, where the authors relied on an equity case (the 1991 Mock case) instead of the much later 2005 adequacy decision in Montoy, which expressly required significant appropriation increases.

ALFRED A. LINDSETH

Of Counsel Sutherland Asbill & Brennan