Legal Beat Update

The new issue of Education Next (Winter 2010) includes a “legal beat” column by Martha Derthick and myself (“Supreme Modesty”) that discusses three important rulings from the Supreme Court’s last term.

“Receiving almost no attention but potentially of utmost significance,” we wrote, “was Horne v. Flores, a case about English-language learning in which the court divided narrowly along ideological lines, with Kennedy joining the five-member majority.”

Anyone doubting the potential significance of the Supreme Court’s decision in Horne v. Flores should consider two recent developments in Florida and Colorado.

In Flores the Court ruled that funding should not be the only consideration in determining whether a state is meeting its requirements under federal law to provide an adequate education for English Language Learners (ELL).   As we explained in our article,

Justice Alito’s majority opinion faulted the district court and the Ninth Circuit for focusing on the ‘narrow question’ of funding, and ignoring whether managerial and instructional reforms had brought the state into compliance. The plaintiffs and lower courts had consistently used funding as the barometer of quality. Alito jumped headlong into the funding debate by citing ‘a growing consensus in education research that funding alone does not improve student achievement.’

Justice Alito’s majority opinion also noted that these types of cases are quite commonly collusive, where state officials want to lose so that courts can force them to impose what they could not win through ordinary political means.  The end result was a “severe spanking” for the 9th Circuit, which had focused solely on spending.

Even though Flores is a federal case, its biggest impact might come in state courts where there have been decades-long battles over school funding.  State courts are not bound by Flores for litigation arising under their own constitutions.  However, state judges have a history of paying attention to what the Supreme Court says on such contentious issues and state attorneys general will certainly remind them of Flores.

While state courts have indicated increasing skepticism toward adequacy suits, there seem to be few signs that lawyers have tired of bringing them.  Two suits have recently developed in Florida.  The most perplexing was filed by the ACLU claiming that the Palm Beach County School district spends too little on education, even though it spends nearly $4,000 more per-pupil than the state average and ranks 11th out of 67 districts in per-pupil funding.  And as I noted in a blog entry earlier this year, the Colorado state supreme court ruled in October that plaintiffs should be able to bring an adequacy case before a trial court.  Lower courts had dismissed the case saying that school funding disputes were not appropriate for judicial resolution.

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