Who decides what’s ‘adequate’ for education?

It's looking like 2003 all over again -- and I'm not referring to the record tax increases on the way.

Regardless of how much money the 2009 Legislature decides to bestow upon the public schools, regardless of whether lawmakers are able to prevent most of the cuts being considered by school districts and actually increase education spending over the next two years, the K-12 budget probably will wind up in the same place it did six years ago: a courtroom.

For several years now, a variety of interests have been plotting a multiple-front lawsuit alleging the state does not adequately fund education. Teacher unions, academics, education consultants, parent activists and some elected and appointed government officials have nearly given up on the prospects for the legislative solution they desire: the creation of massive new revenue streams that flow solely into the K-12 system to fund the hiring of more teachers and big pay raises for all educators.

So they're getting ready to pursue a judicial solution.

That education spending has increased by an average of more than 10 percent per year this decade doesn't matter. The plaintiffs have their talking points in order: one of the nation's highest dropout rates, one of the country's lowest per-student funding levels, limited special education spending and poor achievement and graduation rates for racial and ethnic minorities -- all before the prospect of program cuts on Nevada campuses.

Of course, these statistics are easily manipulated, and there is no nexus between education funding and student performance, but those are points for the defense. The devastation of the state's economy -- its inability to support the continued growth of all parts of state government -- likely will push these arguments into courtrooms.

"People were talking about the lawsuit route before the legislative session, hoping the Legislature would do the right thing," said UNLV law professor Sylvia Lazos, who has studied and advocated for adequacy funding lawsuits. "But it appears we're taking steps back."

Nevada won't be breaking any ground if the schools budget winds up in front of a judge over issues of funding adequacy. According to the National Access Network, an affiliate of the Columbia University Teacher's College, lawsuits challenging public school spending have been brought in 45 states.

"These discussions are definitely being held in the community," said Clark County School Board President Terri Janison, who pointed out that the School Board itself is not involved in the effort and has no current plans to be part of a lawsuit. "Just the other day when I was talking to constituents, a person came up to me and asked, 'Why don't we do that?' "

In 2003, Gov. Kenny Guinn sued the Legislature over its inability to pass an education budget. The new round of lawsuits would be much different.

One could be filed in state court. As a basis for the lawsuit, the plaintiffs would point to the state constitution's requirement that the Legislature "encourage by all suitable means the promotion of intellectual, literary, scientific ... and moral improvements" through a "uniform" system of public schools. The plaintiffs could argue that schools aren't "uniform" by entering years of test scores as evidence, and that lawmakers did not use "all suitable means" to preserve key classes, programs and activities.

To support their arguments for significant spending increases, they can produce a 2007 study completed for the Legislature by the consulting firm Augenblick, Palaich and Associates. That fallacious report determined the state would have to increase education spending by almost $2 billion per year -- from about $2.5 billion this year to nearly $4.5 billion -- to meet federal No Child Left Behind Act standards by the 2013-14 school year, when full compliance is required.

A 2002 Augenblick report for the state of Kansas, claiming that state's schools were severely underfunded, helped persuade the Kansas Supreme Court to order lawmakers there to boost spending by hundreds of millions of dollars. Justices ruled funding levels violated the Kansas Constitution because they didn't "adequately cover student needs."

But the Nevada Constitution clearly delegates the responsibility of funding schools -- and determining the levels of funding -- to the Legislature. Throw in the fact that Nevada judges are elected and have vivid memories of the backlash Supreme Court justices faced following the disastrous 2003 Guinn v. Legislature intervention, and this route seems like a sure-fire loser.

Recent state court decisions bear this out. In the past year, the Nebraska, Oklahoma and Arizona supreme courts have quashed funding adequacy cases.

The more likely forum for a Nevada case is federal court. There, the plaintiffs can apply their funding demands to federal laws and rulings that require academic programs for special education students and English-language learners, and equal opportunities in education for children of all races, ethnicities and social backgrounds, Lazos said. The Augenblick report could come into play here, too, because it links funding levels to federal achievement standards.

And federal judges enjoy the political insulation of lifetime appointments.

The disadvantage of federal court: Cases take forever to adjudicate. There's no way a federal lawsuit would be resolved by the conclusion of the 2011 Legislature.

Lazos said there's a wild card in the mix: Thomas Perez, President Obama's nominee to head the Civil Rights Division of the Justice Department, could decide upon confirmation to sue states over school funding issues all by himself.

Wouldn't that please the shakedown artists in charge of the teacher unions. No attorney fees.

But there's brutal truth behind all this posturing and planning: no amount money would be "adequate" to satisfy the education establishment. There is no magic number that an activist judge could pull from a hat that would end this disingenuous debate. Because when the next round of education spending increases delivers none of the results promised, the extortionists enjoy the benefit of the excuse they've been making for years: "You just didn't give us enough."

Glenn Cook (gcook@reviewjournal.com) is a Review-Journal editorial writer.