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Working Paper

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The law of school finance reform is conventionally described as consisting of three waves, each associated with a distinctive legal theory – a first wave based on federal equal protection arguments, a second equity wave based on state equal protection clauses, and a third adequacy wave based on state constitutional education articles. The asserted shift from equity to adequacy has been credited with the increasing success of school finance reform plaintiffs.

The wave metaphor and especially the differences between the second and third waves, however, have been sharply overstated – temporally, textually, in terms of litigation success, and as a matter of legal theory. State courts have repeatedly blurred adequacy and equity arguments and judicial analysis of adequacy often reflects equity concerns. Nor is there a clear or consistent judicial approach to the idea of adequacy.

Rather, state courts have treated adequacy and the adequacy-equity relationship in three different ways. In one set of cases, courts have cited the adequacy of the educational system to mitigate or excuse a judicial finding that school financing does not violate equality. In a second set of equity minus cases, courts have used the concept of adequacy to require states to equalize the resources of the poorest districts to an adequate level without requiring that the poor be brought up to the level of the rich. Finally, some courts have held that adequacy actually requires more than simple interdistrict tax-base or per-pupil spending equalization. In these equity plus cases, that more can be more-than-equal resources for the poorest districts, or an across-the-board increase in state funding. The more can also mean greater state definition of the components and costs of an adequate education, and more state oversight of, and responsibility for improving, local performance. Some of these equity plus concepts have crossed over into equality litigation, further contributing to the blurring of adequacy and equity concerns.

Although adequacy gives reformers another legal theory, it has not been a panacea. A number of state supreme courts have concluded that adequacy is nonjusticiable, and others have been locked in long-term conflicts with their legislatures, over remedies. Still, some state courts have been relatively successful in forcing the adoption of significant financial and administrative changes, and adequacy has contributed to a growing concern with education governance as part of the project of school finance reform.


Banking and Finance Law | Education Law | Law