Dubious Suit for More Ed Cash

John Seiler
Most recently the press secretary for state Sen. John M. W. Moorlach, for three decades John Seiler was an editorial writer for the Orange County Register

Cross posted on CalWatchdog.com

On July 12, a coalition of school activist groups sued the state of California,
alleging low state funding and low-performance in the state’s public
schools. It cited the California Constitution’s guarantee of a decent
education for every student. Article XVI, Section 8(a)
requires the state to "first . . . set apart the moneys to be applied
by the state for support of the public school system and public
institutions of higher education."

And the coalition cited
Gov. Arnold Schwarzenegger’s Committee on Education Excellence, which
found the state’s schools "not equitable; … not efficient, and … not
sufficient for students who face the greatest challenges." The suit
demands that the state establish a new, equitable financial system.

The suit will be heard in the Superior Court of the City and County of Alameda. The lead plaintiff is the Campaign for Quality Education. Others plaintiffs include the Alliance of Californians for Community Empowerment, Californians for Justice and the San Francisco Organizing Project.

Lead attorneys for the plaintiffs are Public Advocates, Inc. The firm’s managing attorney, John Affeldt, described the lawsuit:

Since California was founded, our
constitution has recognized public education as the State’s highest and
most necessary duty. We’re filing this suit to force the State to live
up to its founding promise to invest in our most valuable asset-the
human potential of Californians. With funding for education at historic
lows, we’re bleeding away tremendous reserves of student potential and
with it the future prosperity and well-being of the state.

The lawsuit was launched in the middle of the state’s worst budget
crisis ever. The state budget for fiscal 2010-11 is far from being
passed more than two weeks into the new fiscal year. And a $19 billion
deficit hangs over the budget itself.

The lawsuit’s complaint also noted the dismal performance of California schools:

In 2008, for example, fewer than half of
California students demonstrated proficiency in English-Language Arts,
Mathematics, Science, and History-Social Science. Of the 549,486
students who began high school in 2004-05, nearly one-third (173,093
students) failed to graduate from high school four years later. And
just one in four of those students graduated having successfully
completed the course requirements needed to even apply for admission to
California’s four-year public universities.

The California  Budget Project

The lawsuit comes shortly after a new study by the California Budget Project (CBP), "Race to the Bottom? California’s Support for Schools Lags the Nation." It found:

By almost any measure California ranks
near or at the bottom with respect to funding for public schools
relative to other states…. California’s spending for public education
has generally lagged that of the nation.

[California] Ranked 46th in education
spending as a percentage of personal income [for 2008-09] – a measure
that reflects the size of a state’s economy and the resources available
to support public services. To reach the level of the rest of the US,
California would have had to spend an additional $15.3 billion on
education in 2008-09, an increase of 29.5 percent.

CPB also found that K-12 spending in 2009-10 was just $8,826 per
pupil, less than the $11,372 national average. Its data were based on
numbers from the National Education Association union.

Different budget numbers

"That’s just not true," Lance Izumi
told me of the budget numbers used in both the lawsuit and the CBP
study; he’s Koret Senior Fellow in Education Studies and Senior
Director, Education Studies at the Pacific Research Institute,
CalWatchDog.com’s parent institute.

He said better numbers come from the U.S. Census Bureau, whose data
for 2007-08 were released earlier this year. Data for 2008-09 are
expected to come later this year.

He pointed out that, on two key indicators, the Golden State
actually tops the median among the 50 states. For total spending per
pupil – which includes instruction costs such as staff and
administrative costs and benefits – California is 23rd. The number spent was $9.863, just a little below $10,259, the national average.

It also was higher than most Western states: Colorado, Oregon,
Arizona and Washington. But there’s more. Izumi said we also have to
include all revenues going to schools, including
"construction and maintenance costs." He said this is essential
because, "if lots of immigrants are coming into a state, building is a
cost. It’s not just teacher and administrator costs." California,
obviously, fits that category because of its large number of recent

But if we look at another number, for all revenues, then for 2007-08, California ranks a decent 21st.
He said that means about 60 percent of American states rank below
California in total revenues per pupil. California in that year spent
$11,649, close to the average (not the median) for the nation of
$12,028. (The Excel spreadsheet of the data are at the Census Website here.
In the "Table of Contents," click on "11. States Ranked According to
Per Pupil Elementary-Secondary Public School System Finance Amounts:

California’s numbers compared to some others:

$12,028 – U.S average

$11,649 – California

Western states

$10,743 – Oregon

$10,116 – Nevada

$10,063 – Texas

$10,051 – Colorado

$9,205 – Arizona

$7,540 – Utah

Industrial states

$11,756 – Illinois

$11,630 – Michigan

$10,708 – Indiana

Izumi noted that California spending also ranks higher than states
with high immigrant populations in schools, such as Arizona, Nevada and
Texas. So the complaints in lawsuit about the low performance on
English proficiency can’t be related to spending.

Budget cuts

Another difficulty is the budget cuts of the past two years totaling $17 billion statewide.

The CBP study that relied on the NEA numbers factored such numbers
into its calculations, thus ranking (as noted above) California 46th in
spending as a percentage of national income for 2008-09. It also – to
add another number – ranked in spending per student for 2009-10 at
44th; with $8,826 spent compared to the $11,372 national average.

But as we have seen, the NEA numbers aren’t as comprehensive as the
Census numbers. So we should wait for the Census report on those later
years, Izumi said. He added that all states, not just California, have
been cutting school spending because of the Great Recession. And the 
Obama administration could sprinkle bailout money on state schools systems.

Court date

Whatever the numbers say, the lawsuit is going forward. Where can it
be expected to go? Not far, John Eastman told me; he’s Donald P.
Kennedy Chair in Law and Director of the Center for Constitutional
Jurisprudence at Chapman University School of Law, and the school’s
former dean.

He judged this to be a "collusive lawsuit," in which the California
Board of Education "won’t put up much of a fight. I’d like to get a
taxpayer group intervening in the case so somebody is defending state

He said such lawsuits are "access litigation suits based on broad
wording in the constitution," such as the phrase quoted in the first
paragraph above. He added that such wording in the state constitution
as "support of the public school system" has "been seen by the courts
as giving students an education, but not a specific level of funding."

And as to California schools’ poor performance, he quipped, "Their defendant ought to be the teachers’ unions" for "pension spiking. There’s not a lack of money going into the school system." The problem, he said, is what’s done with it within the system.

Missouri Vs. Jenkins

Eastman also pointed to a case similar to this one that went all the way to the U.S. Supreme Court, Missouri vs. Jenkins,
filed in 1977. According to the Wikipedia summary, in 1985 the District
Court "required the state of Missouri to correct de facto racial
inequality in schools by funding salary increases and remedial
education programs."

However, 10 years later, the U.S. Supreme Court overturned the
decision, by ruling, in Wikipedia’s summary: "The District Court’s
school desegregation orders… went beyond the court’s remedial

What’s interesting is what happened in the intervening years,
1985-95, when the school district was forced to impose new taxes and
spend more on lower-performing schools, especially in Kansas City.
Wikipedia again:

In 1985, the district court then ordered
the legal remedy of educational improvement programs, school facility
repairs, and magnet schools, which were thought to be the best way to
attract white suburban students back into city schools. In 1987, the
district courts ordered mandatory salary assistance, arguing that in
order to end segregation in the schools the district needed
higher-paid, quality teachers, and in 1993 the district court ordered
the state to pay for salary increases for teaching and non-teaching

The case is described in Complex Justice: The Case of Missouri v. Jenkins, by Joshua M. Dunn. The following summary is from a review of the book in the Claremont Review of Books.

Some parts of the case actually dragged on after the 1995 Supreme
Court decision to 2003. By then, $2 billion had been spent on
desegregating and improving Kansas City schools. Claremont:

The court order turned every high school
and middle school (as well as half the elementary schools) into "magnet
schools," each with a distinctive theme-including not merely science,
performing arts, and computer studies, but also classical Greek, Asian
studies, agribusiness, and environmental studies. The newly constructed
classical Greek high school housed an Olympic-sized pool with an
underwater observation room, an indoor track, a gymnastic center, and
racquetball courts. The former coach of the Soviet Olympic fencing team
was hired to teach inner-city students how to thrust and parry. The
school system spent almost a million dollars a year to recruit white
kids from the suburbs, and even hired door-to-door taxi service for
them. By 1995 Kansas City was spending over $10,000 per student, more
than any comparable school system in the country.

The result:

Despite this massive effort, litigation
failed either to improve the quality of education or to reduce racial
isolation. Test scores continued to drop, and the percentage of
minority students continued to rise. Eventually, black parents-who had
long opposed the court’s heavy emphasis on "magnet schools" designed to
draw whites into the school system-insisted upon a return to
neighborhood schools.

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