A brief response to Mike Rebell in Education Week

Today's Education Week has an article from Mike Rebell titled "Sleepless after Seattle" where a connection is made between recent state "adequacy" lawsuits and the US Supreme Court decision in Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education. (Online yesterday here: subscription req'd) (I had written to Rebell on this issue several months ago but did not hear back.)

In the article, Rebell proposes the Adequate Education Remedial Oversight model. The model argues an approach that "adopts and regularizes the best practices" that state courts have used. He suggests that following his model will "promote effective cooperation among the three branches of government."

Wouldn't that be great?

Rebell suggests 5 planks to the model: Challenging standards, Adequate funding, Effective program implementation and accountability systems, A supportive political culture, and Improved student performance - all good stuff.

I resisted the temptation to assert that with a supportive political culture the rest of the problems can be quickly resolved. But I did not resist a response on the one piece of advice that appeared to be - at least for Kentucky - bad advice. Rebell's model states,

Courts must order states to, first, undertake detailed costing-out studies of the resources required to provide all students the opportunity to meet state standards, and, second, revise the state’s education finance system to ensure that this amount is actually made available to all school districts.

I posted the following retort:

I love Mike Rebell's ideas on adequate funding. I wish they all worked.

If state courts continue to be where the action is, then the language of each state's constitution will make it difficult to develop one model that will serve all states well.

For example, in Kentucky - a state whose constitution contains relatively strong separation of powers language - one of Rebell's suggestions actually got a case thrown out of court. The summary judgment in Young v Wiilliams (2007) underscores the state court's own doubt that it can direct the legislature to do much of anything.

In the Kentucky landmark case Rose v Council for Better Education (1989) plaintiff's counsel Bert Combs was careful to seek only a declaratory judgment. Once that opinion was handed down the political culture and other factors kicked in. As Rebell correctly asserts, Kentucky children benefitted greatly.

Of course, trusting the General Assembly is disquieting for action-oriented plaintiffs who have witnessed years of legislative neglect. But there seems to be little alternative.

Perhaps in other states the court is on firm ground and can tell the legislature how much revenue to raise for education. But that sure doesn't seem to be the case in the Bluegrass state.

One plan does not fit all.

History strongly suggests that left to its own devises, the Kentucky legislature will not adequately fund the schools. Even when, as defendants, legislative leaders were aware that the schools were underfunded, the constitutional mandate was unpersuasive. Absent a public outcry for school support, the General Assembly will happily content itself with the status quo - and call it a victory because it isn't worse.

If the Council for Better Education turned around and sued the state again today, it would not be too soon in my opinion. They are right on the facts. But they need a new legal approach; one that differs from Rebell's model in that it seeks no specific remedy.

But still burned from their summary smackdown at the hands of Judge Thomas Wingate, I'm sure the CBE is giving the new Democratic majority some time to make things right - without litigation.

How's that looking by the way?