School Finance


Edited by: William E. Thro, Charles J. Russo & Allan G. Osborne Jr.

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    Charles J. Russo

    University of Dayton

    Allan G. Osborne, Jr.

    Principal (Retired), Snug Harbor Community School, Quincy, Massachusetts

    Volume Editor

    William E. Thro

    Christopher Newport University

    Advisory Board

    Francine DeFranco

    Homer Babbidge Library, University of Connecticut

    Ralph D. Mawdsley

    Cleveland State University

    Martha M. McCarthy

    Loyola Marymount University and Indiana University

    Mark E. Shelton

    Monroe C. Gutman Education Library, Harvard University


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    About the Editors-in-Chief

    Charles J. Russo, JD, EdD, is the Joseph Panzer Chair in Education in the School of Education and Allied Professions and adjunct professor in the School of Law at the University of Dayton. He was the 1998–1999 president of the Education Law Association and 2002 recipient of its McGhehey (Achievement) Award. He has authored or coauthored more than 200 articles in peer-reviewed journals; has authored, coauthored, edited, or coedited 40 books; and has in excess of 800 publications. Russo also speaks extensively on issues in education law in the United States and abroad.

    Along with having spoken in 33 states and 25 nations on 6 continents, Russo has taught summer courses in England, Spain, and Thailand; he also has served as a visiting professor at Queensland University of Technology in Brisbane and the University of Newcastle, Australia; the University of Sarajevo, Bosnia and Herzegovina; South East European University, Macedonia; the Potchefstroom Campus of North-West University in Potchefstroom, South Africa; the University of Malaya in Kuala Lumpur, Malaysia; and the University of São Paulo, Brazil. He regularly serves as a visiting professor at the Potchefstroom Campus of North-West University.

    Before joining the faculty at the University of Dayton as professor and chair of the Department of Educational Administration in July 1996, Russo taught at the University of Kentucky in Lexington from August 1992 to July 1996 and at Fordham University in his native New York City from September 1989 to July 1992. He taught high school for 8½ years before and after graduation from law school. He received a BA (classical civilization) in 1972, a JD in 1983, and an EdD (educational administration and supervision) in 1989 from St. John's University in New York City. He also received a master of divinity degree from the Seminary of the Immaculate Conception in Huntington, New York, in 1978, as well as a PhD Honoris Causa from the Potchefstroom Campus of North-West University, South Africa, in May 2004 for his contributions to the field of education law.

    Russo and his wife, a preschool teacher who provides invaluable assistance proofreading and editing, travel regularly both nationally and internationally to Russo's many speaking and teaching engagements.

    Allan G. Osborne, Jr. is the retired principal of the Snug Harbor Community School in Quincy, Massachusetts, a nationally recognized Blue Ribbon School of Excellence. During his 34 years in public education, he served as a special education teacher, a director of special education, an assistant principal, and a principal. He has also served as an adjunct professor of special education and education law at several colleges, including Bridgewater State University and American International University.

    Osborne earned an EdD in educational leadership from Boston College and an MEd in special education from Fitchburg State College (now Fitchburg State University) in Massachusetts. He received a BA in psychology from the University of Massachusetts.

    Osborne has authored or coauthored numerous peer-reviewed journal articles, book chapters, monographs, and textbooks on legal issues in education, along with textbooks on other aspects of education. Although he writes and presents in several areas of educational law, he specializes in legal and policy issues in special education. He is the coauthor, with Charles J. Russo, of five texts published by Corwin, a SAGE company.

    A past president of the Education Law Association (ELA), Osborne has been an attendee and presenter at most ELA conferences since 1991. He has also written a chapter now titled “Students With Disabilities” for the Yearbook of Education Law, published by ELA, since 1990. He is on the editorial advisory committee of West's Education Law Reporter and is coeditor of the “Education Law Into Practice” section of that journal, which is sponsored by ELA. He is also on the editorial boards of several other education journals.

    In recognition of his contributions to the field of education law, Osborne was presented with the McGhehey Award by ELA in 2008, the highest award given by the organization. He is also the recipient of the City of Quincy Human Rights Award, the Financial Executives Institute of Massachusetts Principals Award, the Junior Achievement of Massachusetts Principals Award, and several community service awards.

    Osborne spends his time in retirement writing, editing, and working on his hobbies, genealogy and photography. He and his wife Debbie, a retired elementary school teacher, enjoy gardening, traveling, attending theater and musical performances, and volunteering at the Dana Farber Cancer Institute in Boston.

    About the Volume Editor

    William E. Thro is university counsel and associate professor of constitutional studies at Christopher Newport University, a public liberal arts university in Newport News, Virginia. He is an accomplished appellate advocate, constitutional scholar, and education lawyer.

    As solicitor general of Virginia from 2004 to 2008, he was responsible for the Virginia state government's U.S. Supreme Court litigation (except capital cases) as well as lower court appeals involving the constitutionality of statutes or politically sensitive issues. He argued 2 cases in the U.S. Supreme Court and 33 cases in the lower appellate courts. He was on brief for 7 cases in the U.S. Supreme Court and 70 cases in the lower appellate courts.

    His scholarship focuses on constitutional law in educational contexts in both the United States and South Africa. He has authored or coauthored more than 50 articles in peer-reviewed publications and has written extensively on the subject of school finance litigation.

    About the Contributors

    Nicola A. Alexander is an associate professor in the Department of Organizational Leadership, Policy, and Development at the University of Minnesota. Alexander is a board member of the National Education Finance Association and has published in American Educational Research Journal, Educational Policy, Journal of School Business Management, and Journal of Education Finance.

    Dana K. Bagwell is a doctoral candidate in the Department of Health Education at D'Youville College in Buffalo, New York. For more than a decade, Bagwell has conducted research centered on health promotion and conducted numerous educational seminars and interventions designed to increase the health and wellness of the aging population.

    Scott R. Bauries teaches education law and state constitutional law at the University of Kentucky College of Law. Before entering academia, he served as an associate with McGuireWoods, LLP, and as a clerk to Judge Emmett Ripley Cox of the U.S. Court of Appeals for the Eleventh Circuit.

    Victoria Carr is an associate professor in early childhood education and director of the Arlitt Child and Family Research and Education Center at the University of Cincinnati. She is an experienced administrator and teacher of children in preschool, special education, and gifted programs.

    Luke M. Cornelius is an associate professor of educational leadership at the University of North Florida. He teaches and researches in the areas of education law, school finance, educational policy and politics, and sports law.

    Betty Cox is an associate professor, educational studies, University of Tennessee at Martin, and former superintendent of three successive school districts. She is also a member of the Louisiana State Bar Association.

    Janet R. Decker is an assistant professor in the School of Education at the University of Cincinnati where she teaches education law and personnel courses. Decker received both her JD and her PhD in education leadership and policy studies from Indiana University.

    Barbara M. De Luca is currently an associate professor at the University of Dayton, where she teaches school finance, research design, and statistics. She has published research on school finance in a variety of journals from the more scholarly, such as the Journal of Education Finance, to the more practical, such as Journal of School Business Management, and has contributed to several other publications.

    Lisa G. Driscoll is an associate professor in the Department of Educational Leadership at the University of North Carolina at Charlotte. Her research is in the fields of educational finance, law, and policy. Driscoll serves on the editorial board of the Journal of Education Finance and on the advisory board of the National Education Finance Conference.

    Carlee Poston Escue is an assistant professor in the Educational Leadership Program at the University of Cincinnati. She holds a PhD from the University of Florida, where she focused on education finance with a minor in research and evaluation methodology. Her research interests are the adequacy and equity of funding for public school students.

    Shana Goldwyn is an assistant professor in the College of Education, Criminal Justice, and Human Services at the University of Cincinnati. She earned a PhD in educational leadership and policy studies from Florida State University in 2008. She is a former special education teacher at the elementary school level. Her research interests include instructional and urban educational leadership, as well as data analysis and progress monitoring.

    Michael Hazelkorn is a professor of special education at the University of West Georgia. His background as assistant superintendent for personnel and pupil services provided him with insight into the law and financial issues as they apply to special education. He teaches special education supervision and law.

    Steven A. Hinshaw is the finance director at the City of Centerville, Ohio. Previously, he worked as a chief financial officer for more than 17 years in Ohio public school districts. He also serves as an adjunct professor teaching school finance classes at the University of Dayton and Miami University.

    Christine Kiracofe is an associate professor at Northern Illinois University where she teaches education law and finance.

    William S. Koski is the Eric & Nancy Wright Professor of Clinical Education, professor of law, and professor of education (by courtesy), Stanford University. He directs a legal clinic that advocates for equality of educational opportunity for disadvantaged children and serves as plaintiffs' counsel in pathbreaking school finance litigation in California. Koski has published articles on educational equity and adequacy, the politics of judicial decision making, and teacher assignment policies.

    Steven K. Million is a retired professor of education from Winthrop University and has served both as senior national lecturer for finance and law at Nova Southeastern University and founding faculty in doctoral studies at St. John Fisher College in New York. He holds a PhD from the University of Florida with graduate and undergraduate degrees from the University of Kansas and the University of Missouri. He is a former National Accreditation of Teacher Education (NCATE) accreditation team chair and American Association of Colleges for Teacher Education (AACTE) national consultant.

    C. Daniel Raisch is associate professor and associate dean in the School of Education and Allied Professions at the University of Dayton. His research interests include school finance, school law, and educational leadership. His consulting interests include strategic planning and administrator/board member relationships. He has published several journal articles and is coeditor of The Encyclopedia of Educational Reform and Dissent. He was a public school educator for 30 years, 25 of those as an administrator including 18 years as a superintendent.

    Anthony Rolle is professor and chair of the Department of Educational Leadership and Policy Studies at University of South Florida's College of Education. His education finance and economic research is published in books, journals, and monographs such as To What Ends and By What Means? The Social Justice Implications of Contemporary School Finance Theory and Policy, Modern Education Finance and Policy, Measuring School Performance and Efficiency, and Journal of Education Finance.

    Robert J. Safransky is an adjunct professor of school law and American government, Nova Southeastern University. He received a BA from St. Francis College, an MA from Stetson University, and a PhD from Florida State University. He has worked as a high school teacher, junior high school and adult vocational school principal, and a central office administrator.

    Jennifer A. Sughrue is an associate professor in the College of Education at Old Dominion University. Her areas of specialization and research include education law, policy, ethics and leadership, finance, special education law, and comparative international education. She earned a PhD in educational leadership and policy studies at Virginia Polytechnic Institute and State University (Virginia Tech) in 1997. Before that, Sughrue was in K–12 international education for nearly 20 years. She began her higher education career as an assistant professor of educational leadership and policy studies at Virginia Tech, then joined the faculty in the Department of Educational Leadership at Florida Atlantic University in 2004 and became an associate professor. She has been primary investigator and project evaluator on Association Liaison Office for University Cooperation in Development (ALO) and U.S. Agency for International Development (USAID) grants for educational development work in Malawi and continues to seek funding opportunities to sustain this work. She has served on the executive board of the Education Law Association as well as chaired its national conference.

    Lenford C. Sutton is an associate professor and program coordinator of the doctoral program in educational leadership, policy, and law at Alabama State University. His teaching and scholarly focuses are in the areas of school finance, education law, and the distribution of education resources.

    Spencer C. Weiler is an assistant professor in educational leadership and policy studies at the University of Northern Colorado. His research focuses on equal access to knowledge for all children. Specifically, he explores access issues from a school law, school finance, and leadership perspective.

    R. Craig Wood is professor of educational administration and policy at the University of Florida in Gainesville, Florida, and chair of the National Education Finance Conference.

    Korrin M. Ziswiler earned an MBA from Wright State University and is a doctoral student in the education leadership program at the University of Dayton in Dayton, Ohio. She has extensive experience with the Ohio Department of Education's Autism Scholarship Program (ASP).


    State school financing systems have been subject to legal challenges for several decades. Many of these challenges have their roots in the inequalities that exist from one school district to the next within the same state. These inequalities exist because school districts rely largely on the property tax to finance their public schools. To the extent that the wealth of various communities within a state varies, the quality of education from one school district to another, within the same state, will not be equal. The quality of education depends on each district's ability to raise revenue through the property tax. Wealthier districts can better support a higher quality of education than can poorer districts.

    Few would argue that education is one of the most important undertakings of state and local government entities. The U.S. Constitution does not mention education. Thus, the establishment of school systems and the determination of how they will be financed have been left to the states. All states have included provisions in their own constitutions requiring the establishment of a system of public education.

    Yet, that constitutional value is expensive. If all children are to have the opportunity for an education at taxpayer expense, then the government must find a way to raise the necessary revenue and must determine the most efficient and effective way of spending the money. Although these tasks appear simple, they are actually quite complex. Moreover, decisions about how to raise revenue or spend money inevitably implicate various other constitutional, political, policy, and even cultural issues. In effect, every educational issue discussed in the other nine volumes in this set is, at least indirectly, a finance issue. To debate issues of school finance is to debate whether the local school board or government at the state and federal level controls the community's schools. It is to discuss whether the judiciary will intervene to ensure equity and adequacy in a state's public school system. It is to consider whether government should use public funds to empower parents to choose a private or nontraditional public school. It is to ponder whether funding the unique needs of children with disabilities or children with high intelligence is the responsibility of the local school district or of the state and federal government. It is to dispute whether public schools must be free or whether students must pay for some services.

    The 18 debates contained in this volume are actually different ways of framing five broad questions. First, what is the proper role of local school boards? Put another way, should local officials have discretion to do what they believe is best or should the state and federal government impose controls as a means of ensuring equal education? Second, what is the proper role of the judiciary in ensuring educational equity and adequacy? Phrased differently, when the state constitution contains a provision stating that the legislature will create a system of free public schools of a particular quality, should the courts determine whether the legislature has met its obligations? Third, should taxpayer money be used to promote parental choice? In other words, should the government, directly or indirectly, subsidize private schools or allow the creation of public charter schools that operate much like private schools? Fourth, what is the proper role of the state and federal government in financing special education and gifted education? To restate, if Congress or the state legislature requires local school districts to provide extraordinary services, should those entities also provide all or at least most of the funding? Finally, what is the obligation of the public schools with respect to providing elite programs or activities? To state this in different terms, must all programs or activities be provided free of charge?

    The remainder of this introductory essay provides a brief overview of the constitutional, legal, and political framework for each of these broad questions and the specific debates that fall within the broader questions. Within each individual debate chapter in this volume, there is a lengthier introduction.

    The Proper Role of Local School Boards

    In the United States, questions of educational finance often involve two competing state constitutional values. On the one hand, there is a state constitutional value of equality. All public schools should be equal. On the other hand, there is the constitutional value of local control. Local school boards have broad discretion to determine who will teach, what subjects are covered, and how education will be delivered. In some situations, the vindication of one value necessarily means the subordination of another value.

    The constitutional value of equality is reflected in the education clauses of the state constitutions, which mandate the establishment of a system of public schools. In many states, the constitutional text specifies a level of quality. Implicit, if not explicit, in this constitutional command is the notion that the public schools throughout the state will be of similar, if not virtually identical, quality. The system of financing the schools typically embodies this belief. The state mandates that local school districts impose property taxes, but also provides additional money for those districts where property values are low. Thus, every school district, regardless of its socioeconomic makeup, has a minimum level of funding. This level should be sufficient to enable the school district to meet the state standards of competency and to ensure that the public schools are broadly equal. Put another way, the state designs its finance system to ensure educational equality.

    In contrast, the method that all states except Hawaii provide for the delivery of educational services reflects the constitutional value of local control. The states created smaller political units—typically called school districts—that are responsible for the public schools in a given geographic area. A school board, which generally is elected by the voters of the school district, oversees the operations of each local school district. The local board typically has broad discretion over hiring, financial, and curriculum decisions. For example, as long as the board hires certified teachers, the board may hire whomever it wants. Similarly, subject to certain state mandates, the board may spend the available money as it sees fit. Finally, although the state may mandate particular subjects, the choice of textbooks and the choice of curriculum approach are left entirely to the school board. In sum, the quality of the local public schools is very much the result of decisions made by the local school board.

    The great discretion given to local school boards almost inevitably leads to some inequality among school districts. Because some local school districts are better at making decisions than others, some local districts become better than others even where the school districts have approximately the same level of funding. It is inevitable that some teachers will be better, some principals will be superior administrators, some curriculum approaches will be more effective, and some textbooks will be of a higher quality. Although these differences in educational quality are problematic, local boards presumably can eliminate these disparities simply by altering their hiring and curriculum approaches. In other words, local boards must make better use of the resources available to them.

    The Proper Role of the Judiciary in Ensuring Equal and Adequate Education

    Although local school districts receive funds from both federal and state sources, all local school districts except those in Hawaii raise much of the money necessary for operations through a percentage tax, on the value of the real property in the district, with the tax rate set by the local residents. Because of differences in rates and in the value of real property, this system results in vast disparities in the amount of funds available. As a result, some districts have trouble providing even the basics, but others are able to offer educational luxuries. Given the probable relationship between level of expenditures and the quality of the education received by the students, disparities in funding will often lead to disparities in educational achievement. Although state legislatures and executives have adopted various mechanisms to correct this financial inequality, the disparities remain.

    Yet, every state constitution has a provision mandating, at a minimum, that the state provide a system of free public schools. The constitutional text of these clauses varies a great deal. At one end of the spectrum are the 21 “establishment provisions” that simply mandate that a free public school system be established and nothing more. In the middle are 18 “quality provisions” that mandate that an educational system of a specific quality be provided. Similarly, there are 6 “strong mandate” provisions that establish a level of quality and that also provide a strong mandate to achieve it. Finally, at the far end of the spectrum are 5 “high duty provisions” that seem to place the requirement to provide education above other governmental functions such as highways or welfare.

    Given the apparent conflict between the state constitutional provisions and the funding disparities created by the states' school finance systems, it is not surprising that the courts have been asked to intervene and vindicate the constitutional value of free public education for all by declaring that the current system of financing the schools is unconstitutional. Indeed, during the last four decades, the high court of virtually every state has wrestled with the question of whether the state's school financing system is constitutional.

    School finance litigation has relied on two distinct litigation approaches. First are “equity suits,” where the plaintiffs assert that all children are entitled to have the same amount of money spent on their education or that children are entitled to equal educational opportunities. In effect, the plaintiffs in such cases believe that more money means a better education, and they have little or no tolerance for any differences in money or opportunities. In an equity suit, the plaintiffs rely on the equivalent of a state equal protection clause and assert that education is a fundamental right and that disparities in funding violate that right. The dominant legal theory during the 1970s and 1980s tended to be that found in equity suits.

    Second are “adequacy suits” in which the plaintiffs argue that all children are entitled to an education of at least a certain quality and that more money is necessary to bring the worst school districts up to the minimum level mandated by the state constitution. The emphasis is on differences in the quality of education delivered rather than on the resources available to the districts. The systems are struck down not because some districts have more money than others do, but because the quality of education in some schools, not necessarily the poorest in financial terms, is inadequate. In an adequacy suit, the plaintiffs assert that the state constitution establishes a particular standard for educational quality and that the schools do not measure up to that standard. The plaintiffs assume that the reason for this failure is inadequate funds. Although many contemporary cases have equity suit arguments, the adequacy suit has been the dominant strategy of the 1990s and the early 21st century.

    The history of school finance litigation comprises three waves. During the first wave, which lasted from the late 1960s until the Supreme Court's decision in San Antonio Independent School District v. Rodriguez (1973), this litigation relied on the Equal Protection Clause of the U.S. Constitution. Essentially, the plaintiffs asserted that all children were entitled to have the same amount of money spent on their education or that children were entitled to equal educational opportunities (“equity suit”). In effect, the plaintiffs believed that more money meant a better education and had little or no tolerance for any differences in money or opportunities. To prevail under this equality theory, the plaintiffs had to persuade the court that education was a fundamental right, that wealth was a suspect class, or that the finance system was irrational.

    Similarly, during the second wave, which lasted from the New Jersey Supreme Court's decision in Robinson v. Cahill (1973) until early 1989, the emphasis continued to be on equity suits. However, because Rodriguez had foreclosed the use of the federal constitution, the plaintiffs were forced to rely on state constitutional provisions, particularly education clauses. Although the plaintiffs were able to prevail in Arkansas, California, Connecticut, New Jersey, Washington, West Virginia, and Wyoming, the overwhelming majority of the cases resulted in victories for the state.

    In contrast, the third wave, which began with the Montana, Kentucky, and Texas plaintiffs' victories in 1989 and continues, has been fundamentally different in three distinct ways. First, instead of emphasizing equality of expenditures, the plaintiffs argue that all children are entitled to an education of at least a certain quality and that more money is necessary to bring the worst school districts up to the minimum level mandated by the state education clause (“adequacy suit”). The emphasis is on the differences in the quality of the education delivered rather than on the resources available to the districts. The systems are being struck down not because some districts have more money than others do, but because the quality of education in some schools, not necessarily the poorest in financial terms, is inadequate.

    Second, rather than relying on state equal protection clauses, which had been the focus of the school finance litigation or decisions before 1989, the new wave of decisions are based exclusively on the education clauses in the respective state constitutions and, thus, represent a profound shift in litigation strategy. The interpretation of the education clauses has fewer implications for other areas of the law, so this shift appears to make a plaintiff's victory more likely. Consequently, assuming that the plaintiffs can prove that some schools are below the constitutional standard and that this deficiency is caused by lack of resources, it is, theoretically, much easier for the plaintiffs to prevail.

    Third, the courts have been more sweeping in their pronouncements and their willingness to take control of the finance system. Kentucky's highest court invalidated the finance system as well as every statute related to the public schools and then ordered the legislature to design a new system. When the Texas legislature attempted to correct the finance system, the Texas Supreme Court held that the legislative remedy was inadequate and ordered legislators to try again. Previously, the courts had readily accepted the legislative correction. This emphasis on quality of education rather than equality of funds, using the narrow education clauses rather than the broad equal protection provisions, and asking for sweeping reform or continued court supervision represents the future of school finance litigation.

    The Role of the State in Promoting Parental Choice

    Even though all children in the United States are entitled to a free public education under their states' constitutions, James Peyser (1994) has observed that many schools are failing, and few will argue that U.S. schools are not in need of reform. In a landmark report issued in 1983, the National Commission on Excellence in Education warned that our educational foundations were being threatened by a rising tide of mediocrity. The commission specifically pointed to the facts that U.S. students did not fare as well as their counterparts in other industrialized countries on comparisons of student achievement, 23 million U.S. adults were functionally illiterate, functional illiteracy among minority youth was as high as 40%, and the average achievement of high school seniors at that time on standardized tests was lower than it was in 1957. The report concluded that the decline in educational performance was the result of the way education in the United States was conducted.

    U.S. cities and urban areas have been particularly affected by school failure. Robin Barnes (1997) has noted that in urban schools, the dropout rate is well above 50%, truancy is rampant, violence is common, and school buildings are in poor condition. Christopher Pixley (1998) contends that minorities suffer the consequences of much of the failure in urban schools. Almost 30 years ago, Charles Murray (1984) noted that the large gap between black and white students in educational achievement threatened to defeat other attempts to narrow the economic differences separating the two groups. More recently, Clint Bolick (1998) found that minority students' mastery of basic skills was less than half that of their white counterparts.

    Given this crisis in urban education, particularly among students of color, it is not surprising that some would propose revolutionary reforms. These reforms include vouchers and charter schools.


    Vouchers are monetary certificates, typically issued by the state, that the parents of poor children can spend on their children's education at either public or private schools, including religious schools, as long as the receiving school meet certain standards. The voucher amount may not necessarily cover the full costs of tuition and fees at a private school but usually covers a substantial part of those costs. Vouchers allow some poor children to attend private schools that may be educationally superior and safer than the public schools they would otherwise attend.

    Because vouchers can be used at private sectarian schools, school choice programs benefit the religious schools by making it easier for parents to send their children to religious schools. Many opponents of voucher programs as well as those who advocate for the strict separation of church and state question the constitutionality of allowing vouchers to be used at sectarian schools. As far as the federal constitution is concerned, the issue was pretty much settled in 2002, when the U.S. Supreme Court ruled in Zelman v. Simmons-Harris that a school choice program that included religious schools did not violate the Establishment Clause. Even so, there may be instances where state constitutional provisions preclude the use of vouchers at sectarian schools.

    Constitutional issues aside, a profound policy debate remains about whether school choice programs are a good idea. Proponents of vouchers argue that urban schools are failing and that there is a moral, if not constitutional, obligation to allow children to pursue opportunities that are more likely to educate them. Moreover, forcing schools to compete with each other for students likely will cause all schools—both public and private—to improve. Conversely, opponents of school choice programs argue that vouchers undermine the public schools. Resources that would normally be spent on public schools are diverted to private schools. Moreover, children who do not wish to attend a religious school may have little or no choice. Furthermore, the solution to failing urban schools is to reform them, not to abandon them in favor of private, often religious, institutions that are not fully accountable to the public.

    Charter Schools

    The creation of charter schools, which are public schools with substantially more autonomy than most public schools have, has been one of the more controversial issues in education since 1991 when Minnesota enacted the first charter school law. Today, 40 states, the District of Columbia, and Puerto Rico have charter schools (WestEd, 2000a). State laws vary greatly in how they provide for the creation and accountability of charter schools. For example, Mississippi, which passed its charter school law in 1995, has only one charter school of 371 students. California, albeit a much larger state, has 280,854 students attending 733 charter schools (WestEd, 2000b). In some states, such as Colorado, charter schools have become viable competitors to the traditional public schools.

    Charter schools are not accountable to local school boards and are not administered by the school district. They are governed by an independent school-based board and are exempt from many, if not most, of the regulations that normally apply to public schools. For that reason, charter schools may follow a different curriculum than the rest of the school district. Because charter schools may be exempt from the provisions of a school district's collective bargaining agreement, their teachers may have different salary schedules, benefits, working conditions, or professional qualifications than those in the regular public schools. Perhaps most significantly, the role of parents in school decision making is substantially higher than at the general public schools.

    Despite the recent popularity of charter schools, they still represent a controversial experiment in educational reform. As could be expected, some charter schools are quite effective, but others struggle and do not perform as well as traditional public schools. The inconsistent quality of charter schools adds to the ongoing debate regarding their existence. As the essays on charter schools in the Alternative Schooling and School Choice volume in this series point out, many opponents feel that resources should not be diverted to experiments that fail. Charter schools are also controversial because they can operate outside of normal union work rules. Further, in communities where there is a history of unconstitutional racial discrimination, many believe charter schools appear reminiscent of the private, all-white academies that characterized the era of massive resistance.

    The Role of the State and Federal Government in Financing Special Education and Gifted Education

    As explained earlier, every state constitution requires the establishment of a public school system and, in many states, the constitution requires a certain level of quality. Similarly, the Equal Protection Clause of the U.S. Constitution prohibits irrational discrimination against those with disabilities. Presumably, a similar prohibition applies to discrimination against those with extraordinary abilities. Implicit, if not explicit, in these constitutional commands is the notion that the public schools should provide an education that is appropriate for every child, regardless of whether the child is disabled or exceptional. To that end, the federal government has mandated that children with disabilities receive a free appropriate public education. Similarly, many states have insisted that local school districts provide gifted education.

    Yet, the existence of theses constitutional commands and accompanying policy mandates begs the question of what level of government will fund special education and gifted services. Under the Individuals with Disabilities Education Act (IDEA), school districts must provide appropriate and individualized programs and services that address the underlying physical, emotional, educational, and social impediments that limit these students' access to the educational opportunities that their nondisabled peers enjoy. For a local school district, the costs of implementing the IDEA include additional teachers, paraprofessionals, therapists, equipment, technology, transportation, diagnostic testing and evaluation, environmental and instructional modifications, instructional materials, and, in some instances, attorneys' fees.

    Similarly, children who are gifted have special needs and, arguably, require special services. They may need special classes where the pupil–teacher ratio is smaller or where there is greater use of technology. At the high school level, it may be necessary to have a special curriculum that closely resembles a college curriculum. It may also be necessary for gifted students to participate in labor-intensive extracurricular activities such as Odyssey of the Mind, Future Problem Solving, debate, or science fairs. Of course, coordinating all these activities may require additional administrators.

    Yet, such mandates seemingly conflict with another state constitutional value—the value of local control. All states except Hawaii provide for the delivery of educational services through smaller political units—typically called school districts—that are responsible for the public schools in a given geographic area. Each school district is controlled by a school board, which generally is elected by the voters of the school district. The local board typically has broad discretion over hiring, financial, and curriculum decisions.

    The tension between the state's promotion of the state constitutional value of equality and the local district's preservation of the state constitutional value of local control is exacerbated when the state mandates the provision of services, but does not provide the money to perform the services. In essence, the state takes control away from local school boards when it mandates that school districts provide certain services. When the state also fails to provide full funding for these mandated services, school boards cannot always spend their limited revenues as they see fit when they must spend a portion on the mandated programs. This may also force boards to make policy choices that are not necessarily their own. State mandates to provide gifted education, which are motivated by a desire to see that children receive the services necessary for them to develop fully as human beings, are a classic example of the unfunded mandate.

    The Obligation of the Public Schools to Provide Elite Programs or Activities

    In the United States, we expect that public education will be free. Yet, such an expectation necessarily begs the question of what constitutes a “free” public education. Certainly, basic courses in reading, composition, mathematics, and science must be free, but what about other specialized educational opportunities such as advanced placement or International Baccalaureate classes? What about extracurricular activities such as band or sports? Must they also be provided for free?

    On the one hand, advanced placement and International Baccalaureate programs are an integral part of the curriculum for gifted students. Just as the parents of special education students do not have to pay for the enormously expensive educational services that are provided, the parents of gifted students should not have to pay for the specialized educational services that are available to them. Moreover, advanced placement and International Baccalaureate programs often serve as a means of promoting social mobility. They allow children from poor or lower-middle-class households to obtain the equivalent of a private school education, and they increase the likelihood that those students will attend and, ultimately, graduate from college. Such movement up the socioeconomic ladder is a deeply held value of U.S. society and is one core purpose of the public schools.

    Similarly, extracurricular activities often are an important part of the educational process. Extracurricular activities teach important lessons regarding teamwork, self-discipline, hard work, courage, determination, dealing with adversity, working for long-term goals, and so forth. Those lessons can be more critical to success in our society than are some of the skills that students learn in the basic curriculum. Moreover, if athletics and band are not part of the educational curriculum, then why are the schools spending thousands of dollars employing coaches and band teachers as well as constructing facilities? If the purpose of these activities is to entertain the community rather than education, then such activities are incompatible with the schools' core mission.

    On the other hand, these specialized classes involve only a small portion of the student body and require enormous additional expenditures. For example, an advanced placement class may have only 10 students, but a regular class may have 25. International Baccalaureate programs require additional teacher training and, in some instances, may require the school to restructure the curriculum sequence. In those districts where such specialized programs are offered only at one particular school—the normal practice for the International Baccalaureate programs—the school district may well incur additional transportation costs.

    Similarly, extracurricular activities—particularly sports and band—involve only a small portion of the student body and require enormous additional expenditures. Only a dozen male students may play varsity basketball even though several hundred males attend the school. Band or chorus inevitably will involve less than 10% of the student body. Why should the school pay all or even most of the costs of an activity that benefits only a few?

    William E.Thro, Christopher Newport University
    Further Readings and Resources
    Barnes, R. D. (1997). Black America and school choice: Charting a new course. Yale Law Journal, 106, 2375–2408.
    Bolick, C. (1998). Transformation: The promise and politics of empowerment. Oakland, CA: ICS Press.
    Murray, C. (1984). Losing ground: American social policy, 1950–1980. New York: Basic Books.
    The National Commission on Excellence in Education. (1983). A nation at risk: The imperative for educational reform. Washington, DC: Author. Retrieved from
    Peyser, J. A. (1994). School choice: When, not if. Boston College Law Review, 35(3), 619–632.
    Pixley, C. J. (1998). The next frontier of school finance reform: A policy and constitutional analysis of school choice litigation. Journal of Legislation, 24, 21.
    WestEd. (2000a, August). U.S. charter schools: State information. Retrieved July 12, 2011, from
    WestEd. (2000b, August). U.S. charter schools: Steps to starting a charter school. Retrieved July 12, 2011, from
    Court Cases and Statutes

    Individuals with Disabilities Education Act (IDEA) of 1990, 20 U.S.C. §§ 1400 et seq.

    Robinson v. Cahill, 62 N.J. 473 (1973), 303 A.2d 273 (N.J. 1973).

    San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).

    Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

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