This activity simulates a debate between the Right to Education affirmative and the School Choice counterplan

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1AC — Plan

The United States federal government should establish and enforce a constitutional right to education guaranteeing that all children in the United States receive equal access to an excellent elementary and secondary public education and should increase funding to a level necessary to accomplish this goal.

1AC — Solvency

Contention Two: Solvency

First, requiring equal access to an excellent education is vital to close opportunity and achievement gaps

Robinson 15 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2015 (“How Reconstructing Education Federalism Could Fulfill the Aims of Rodriguez,” The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, Edited by Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson, Published by Harvard Education Press, ISBN 9781612508313, p. 205-206)

I contend that the United States should strategically restructure and strengthen the federal role in education to establish the necessary foundation for a national effort to ensure equal access to an excellent education. This restructuring and strengthening of the federal role in education would require shifting some power away from the state and local governments and toward the federal government. The United States would then need to adopt a new understanding of education federalism that embraces the federal government as the guarantor of equal opportunity, because it is the only government with the capacity and sufficient incentive to lead a national effort to achieve this widely supported, yet persistently elusive, goal. Although this would not require federalizing the nation's education system as at least one scholar has recommended, it would require acceptance of a larger federal role in education to hold the states accountable for ensuring that all students receive equal access to an excellent education.7

I define equal access to an excellent education as the opportunity for all students to attend a high-quality school that enables them to effectively pursue their life goals, to become engaged citizens, and to develop their abilities to their full potential.8 Equal access to an excellent education enables all students to receive “a real and meaningful opportunity to achieve rigorous college- and career-ready standards.” 9 If the United States pursues equal access to an excellent education as the primary goal for its education system, it will break the traditional link between low-income and minority status and inferior educational opportunities. This goal recognizes that educational opportunities should be tailored to meet the individual needs of students that may vary dramatically depending on a variety of factors, including family structure and stability, students' health and nutrition, and neighborhood climate. This goal also embraces closing the opportunity gap as an essential prerequisite for closing the achievement gap. Furthermore, embracing racially and economically diverse schools is essential for achieving this goal given compelling research regarding the harms of racial and class isolation, the benefits of diversity, and evidence of diverse schools providing important educational benefits that cannot be duplicated by alternative reforms. 10 An excellent education for all schoolchildren should be the nation's ultimate [end page 205] education goal, because all families ultimately want a first-rate education for their children and because the United States would benefit economically, socially, and politically from providing such an education.

Second, comprehensive federal action is needed for successful reform.

Robinson 16 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2016 (“Fisher’s Cautionary Tale and the Urgent Need for Equal Access to an Excellent Education,” Harvard Law Review (130 Harv. L. Rev. 185), November, Available Online to Subscribing Institutions via Lexis-Nexis)

B. Overturning Rodriguez

To be most effective, a comprehensive federal agenda requires the assistance of all three branches of government. The executive branch enjoys the fewest obstacles to reform because it could use its existing authority to accomplish incremental shifts to education federalism through modest reforms that employ its existing authority and resources. n295 Nevertheless, given the full scope of the shift to education federalism that I recommend, reforms instituted without any significant involvement of Congress or the Court would lack the comprehensive nature that ensuring equal access to an excellent education for all schoolchildren will ultimately demand. Legislation consistent with this agenda would send an even more powerful message that the agenda represents the will of the people and thus may encourage greater state and local buy-in. n296 However, the eight-year delay in reenacting the Elementary and Secondary Education Act of 1965, which eventually led to the reduction of the federal role in education in the Every Student Succeeds Act, n297 and the great difficulties that Congress is experiencing in passing legislation n298 suggest that legislative reform consistent with my proposal is unlikely in the near term.

[*231] Fortunately, the Court possesses the authority to unleash a powerful tool that could help to reduce the opportunity and achievement gaps that lead universities and colleges to rely on affirmative action in admissions. It could overturn Rodriguez, which held that the Constitution does not protect education as a fundamental right. n299

For over forty years, Rodriguez has served as a roadblock to access to federal courts for those who hope to address the entrenched disparities in funding and resources that relegate many disadvantaged and minority students to inferior educational opportunities in the United States. n300 Because the Court held that education was not a fundamental right, Rodriguez applied rational basis review to the funding gaps between districts within Texas. n301 The Court determined that Texas easily met this standard because its funding approach advanced local control of education, the Court lacked the expertise to second-guess the Texas system, and a ruling for the plaintiffs would greatly upset the balance of federalism. n302 The Court nonetheless noted the need for reform of school funding and challenged the states to undertake this reform. n303 Although many states have implemented funding reform since Rodriguez and state litigation has resulted in some important victories, these state efforts have fallen far short of the reforms required to provide all children equal access to an excellent education. n304 In light of the continuing disparities in educational opportunity, numerous scholars, myself included, have argued that Rodriguez was wrongly decided and should be overturned to provide a consistent and powerful federal remedy to address these disparities. n305

[*232] However, disagreement exists over the scope of the right that the Court should recognize. The Court left the existence of a fundamental right to some minimum education an open question in Rodriguez n306 and subsequently acknowledged that the question remains open. n307 If Rodriguez is overturned, some scholars envision the Court addressing only extreme forms of educational inequality by providing a federal right to a minimally adequate education. n308 Leading education scholar Professor Derek Black, on the other hand, has argued that such an education today would require that students receive the state-defined minimum of education and that this definition does not have to equal "a minimalist education." n309

Given the likelihood that the Court will insist that affirmative action eventually end, the Court should take some responsibility for addressing the conditions that lead institutions to rely on affirmative action by overturning the decision that insulated opportunity gaps from federal accountability. The Court could choose from a variety of constitutional provisions to recognize a right to education. n310 For [*233] instance, the Court could hold that the Fourteenth Amendment's requirement that states not deny equal protection of the laws n311 serves as a prohibition of the inequitable state disparities in educational opportunity or guarantees students an education that enables them to effectively employ their First Amendment rights and to be competent voters. n312 Recognizing and enforcing a federal right to education would provide greater authority and consistent impact than the state education clauses that vary widely in their protection — or lack thereof — of the right to education. n313 The federal courts have been and will remain an important and powerful avenue for enforcing education rights for all students throughout the United States in ways that do not make the content of a right dependent on the happenstance of geography or state law. n314 A federal constitutional right also would enable the federal courts to address the substantial interstate disparities in funding that currently account for seventy-eight percent of per-pupil spending gaps. n315 This tremendous interstate disparity, which has reached a [*234] "historic high" for spending differences, n316 reveals the failure of state courts to close spending gaps on their own. n317

If the Court chooses to overturn Rodriguez in a manner that would help to close opportunity gaps, it should incorporate four essential principles into a constitutional right to education. First, the Court must embrace a robust fundamental right to education that moves beyond guaranteeing a rudimentary floor of educational opportunity. A minimal right would not make a meaningful impact on opportunity or achievement gaps. Instead, the Court should consider recognizing a right to education that requires states to provide an education-based justification for the quality of education provided and any disparities in educational opportunity. Such a standard would enable states to offer disparate opportunities to students with disabilities, English-language learners, and low-income children, but would force states to end the superior opportunities that are provided to wealthier children absent an educational justification for such disparities. Defining a fundamental right to education in this way would help to level the playing field within public schools and insist that states design education systems based on research and students' needs rather than power, politics, and privilege.

Second, the Court should include safeguards that reduce the likelihood that states level down their educational opportunities n318 or seek to avoid the Court's requirements. n319 One safeguard could be an instruction to states that guaranteeing a federal right to education should avoid reducing the quality and nature of existing educational opportunities and instead should seek ways to expand the delivery of a high-quality education to those who are currently denied it. The Court also can reduce the likelihood of decreasing the quality of educational opportunities within a state by providing clear requirements on the nature of the education right. In this regard, the Court can learn from decades of school finance litigation that has worked to give meaning to the right to education embodied in state constitutions, n320 while recognizing [*235] that this litigation has had significant shortcomings and has not ultimately resulted in equal access to an excellent education for all children. n321

Third, the Court must acknowledge that a constitutional right to education would shift education federalism in ways that would increase federal influence over education and reduce some aspects of state control over education. The Court must wrestle with its own prior pronouncements heralding the importance of local control of education. n322 Such a shift in an area of traditional state control must be justified with an explanation for why this shift is both appropriate and warranted. n323

When the Court provides this explanation, it should remind the states that Rodriguez urged state reform of school finance systems in light of the persistent and heavy reliance on property taxes and the disparities in educational opportunity. n324 The limited nature and impact of subsequent reforms remains apparent in light of the Equity and Excellence Commission's finding in 2013 that "students, families and communities are burdened by the broken system of education funding in America." n325 The Commission further noted that over forty years of reforms "have not addressed the fundamental sources of inequities and so have not generated the educational gains desired." n326 Scholars also have recognized the limited success of decades of funding litigation to remedy longstanding inequitable disparities in educational opportunity. n327 School funding data and research also confirm a host of shortcomings in state funding systems despite the Court's invitation to reform funding in ways that increase equal educational opportunities. n328

In addition to the shortcomings noted above, most states have not designed their funding systems to accomplish their education goals. n329 Instead, politics oftentimes drives the distribution of funding as state [*236] politicians assess how much funding is available for a given school year and then bargain over how that amount should be divided among the students in the state. n330 When the Court acknowledges that its decision will result in a shift in education federalism, it also should acknowledge that the laboratory of the states has failed to develop the reforms needed to ensure an equitable and excellent education for every child.

Fourth, the Court must acknowledge that recognizing a constitutional right to education would only begin the process of closing opportunity and achievement gaps. The reform of funding systems and the redistribution of educational opportunity will take a significant amount of time. The Court will need to encourage lower courts to retain jurisdiction over cases enforcing this right, just as state courts typically retain jurisdiction over cases enforcing a state right to education. n331

In this regard, the Court must avoid the errors of its desegregation cases, which initially insisted on effective desegregation in the late 1960s and early 1970s, n332 but then eventually emphasized the return to local control of schools rather than the effectiveness of desegregation orders. For example, in Milliken v. Bradley, n333 the Court overturned an interdistrict desegregation plan for the metropolitan Detroit area in part because the plan's inclusion of districts surrounding Detroit would cause a reduction in local control. n334 The Court took this action in spite of the Sixth Circuit's finding that crossing district boundaries was particularly appropriate given the state's discrimination that maintained racial segregation across school district boundaries and that failing to include the surrounding districts would "nullify" Brown v. Board of Education. n335 As I have explored in prior work, the Court's desegregation decisions in Board of Education of Oklahoma City Public Schools v. Dowell, n336 Freeman v. Pitts, n337 and Missouri v. Jenkins n338 [*237] also reified local control of the schools by focusing on releasing districts from court supervision rather than on effective and lasting school desegregation. n339 Scholars have documented how these cases signaled that the Court had determined that desegregation had gone on long enough and it was time for school boards to regain control even if desegregation was never ultimately accomplished. n340

If a federal right to education is going to serve as a mechanism to close educational opportunity gaps and to reduce the need for selective institutions to rely on consideration of an applicant's race to achieve diversity's benefits, the Court must learn from how its desegregation decisions undeniably contributed to the racial isolation that pervades so many school districts today. n341 The Court's impatience with the slow nature of desegregation reveals a shallow understanding of the depth of the social ill that the Court declared unconstitutional in Brown and an unwillingness to insist upon ongoing federal court investment in the effective dismantling of segregation. Overturning Rodriguez will require the Court to confront longstanding and deeply entrenched inequalities within public education. The federal courts will be called upon to oversee reforms that topple the settled expectations of more privileged sectors of society, just as the Court confronted the expectations of racism and white privilege that supported racial segregation. Thus, the reforms required by the Court cannot give a wink and a nod to those who benefit from the status quo while simultaneously claiming to demand reform.

The Court must eschew any approval of unwarranted delay, as occurred in Brown II's command to desegregate with "all deliberate speed," n342 or any invitation to incomplete or ineffective results, as the Court sanctioned in Dowell, Freeman, and Jenkins. n343 Instead, the Court must insist that states implement the reforms that will ensure [*238] equal access to an excellent education. It must make clear that states will not be released from court oversight until they have done so. Consistent Supreme Court insistence on an excellent and equitable education for all children will provide lower federal courts the support that they will need both to confront state legislatures that resist changing the status quo and to prevent evasive actions similar to those invited by the Court's ambiguous pronouncements in Brown II. n344

In sum, a federal right to education that embraces these principles provides the most promising path toward closing opportunity and achievement gaps such that selective postsecondary institutions may not be required to consider race to achieve diversity's benefits. n345 Unless the Court overturns Rodriguez, the Court will remain complicit with the deeply entrenched educational opportunity gaps and should not blame postsecondary institutions that must build diverse institutions despite those gaps.

Foonote n345: Additionally, Congress could take a variety of actions to support the Court's recognition of a constitutional right to education. Congress could embrace the Court's requirements as conditions on funding in the Elementary and Secondary Education Act of 1965 or on any education funding, authorize grants to support reform, extend funding for the DOE to enforce new conditions, and monitor DOE enforcement of the conditions. See Robinson, supra note 141, (manuscript at 34-49) (proposing congressional mechanisms that could lead states to offer equal access to an excellent education); Robinson, supra note 18, at 1006-12 (describing how Congress can still expand the federal role in education despite the limits NFIB v. Sebelius, 132 S. Ct. 2566 (2012), placed on congressional spending). The executive branch could issue an executive order on the importance of compliance with the Court's decision recognizing a federal right to education, establish a commission to study and recommend effective responses, enforce any statutory conditions on education funding, and modify education regulations and guidance consistent with the Court's pronouncements. These efforts would provide critical support for the Court's decision to recognize a constitutional right to education by overturning Rodriguez. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).

Third, restoring the positive federal role in education is necessary to rectify racial and class oppression and promote integration. Only federal action can achieve educational equality.

Sundquist 17 — Christian B. Sundquist, Professor of Law and Director of Faculty Research and Scholarship at Albany Law School, former Visiting Scholar at the Institute for Research on Poverty at the University of Wisconsin-Madison, holds a J.D. from Georgetown University Law Center, 2017 (“Positive Education Federalism: The Promise of Equality after the Every Student Succeeds Act,” Mercer Law Review (68 Mercer L. Rev. 351), Winter, Available Online to Subscribing Institutions via Lexis-Nexis)

B. A Positively Federalist View for Future Reauthorizations of the ESEA

A positive conception of federalism is particularly justified when attempting to divine the appropriate federal role in public education. As discussed previously, the primary constitutional basis for federal involvement in public education is premised on the government's responsibility to take positive action to remedy racial and class inequalities. n186 The Brown constitutional doctrine and the "War on Poverty" driven by the ESEA forged an understanding of education federalism rooted in positive social justice. It is particularly appropriate today that we restore this fundamental understanding of education federalism, given evidence of increasing racial disparities in public education and the noted failures of modern education federalism policy.

The federal guarantee of equal public education is critically important to the functioning of our democracy. As a public good, education helps our society develop those "fundamental values necessary to the transmission of our democratic society." n187 The provision of an equitable public education, devoid of identity-based disparities, is critical to provide children with "the knowledge needed to understand and participate effectively in the democratic process and to cultivate among children respect for and the ability to interact with others as beings of inherently equal moral worth." n188 Indeed, both classic and contemporary constitutional scholars argue that equal public education should be regarded as "a fundamental duty, or positive fundamental right because education is a basic human need and a constituent part of all democratic rights." n189 The need, then, for a robust application of positive education federalism principles in this context cannot be stronger.

[*385] The purpose of this Article is not to provide specific curricular recommendations to guide the future of public education. n190 Rather, this Article has attempted to define a new vision of positive education federalism - one that is rooted in a historical understanding of the constitutional obligation of the federal government to shape education policy goals in a manner that responds to unrelenting racial and class disparities. A few core principles regarding the substantive dimension of positive education federalism can be gleaned from this discussion:

1. First Principle: Providing an equal public education is a federal responsibility that cannot be transferred to or assumed by private market forces.

The overarching conclusion of this Article is that ESSA, NCLB, and RTT unconstitutionally transfer federal responsibility for positively eliminating racial and class inequality in public education to private market forces under the auspices of competitive federalism. n191 This reading of the federal role in public education is ahistorical and undermines the core principles of equality informing Brown-era education federalism. n192

2. Second Principle: Positive federal action is justifiable in public education when necessary to rectify historical patterns of racial and class oppression.

It follows from the first principle that positive federal intervention in public education is justified when employed to directly respond to our unbroken history of racial and class disparities in educational outcomes. The original vision of the ESEA and Brown anticipated future positive efforts by the federal government to wield its block grant powers to actively dismantle old systems of oppression. n193 The current statutory framework has abandoned this vision of equality in its misguided pursuit to harness the market forces of consumer choice, accountability, and competition to limit the federal role in education. n194


3. Third Principle: Our education federalism must acknowledge that racial discrimination and class oppression are the true roots of current educational disparities.

Third, it is of the utmost importance that our education federalism fully acknowledge the historical and continuing causes of education disparities: racial discrimination and poverty. n195 The race and class-based roots of educational inequality are well-known and well-documented, and our education federalism can no longer hide behind the veil of ignorance provided by ESSA, NCLB, and RTT. n196 Far from acknowledging the reality of educational disparities, our current competitive federalist framework for education actively attempts to conceal these roots, with the specious promise that the free market principles of choice, accountability, and competition will eventually equalize education. n197 Modeling our education federalism around such race and class "neutral" market principles have led to a deepening of the crisis while allowing society to ignore the ways in which privilege shapes outcomes. n198

4. Fourth Principle: Our education federalism must strive to promote racial and class integration.

Finally, any equality-based vision of education federalism must promote the social integration of our public schools. The current competitive conception of education policy has failed those "faces at the bottom of [the] well" n199 and led to a rampant racial re-segregation of our schools. n200 This failure evinces a lack of faith and duty in fulfilling the original integrationist goals of Brown and the ESEA. Therefore, a positive theory of education federalism must promote federal efforts to integrate our public schools.

These core principles, on a theory of positive education federalism, can be used to inform future reauthorizations of the ESEA. While this Article does not attempt to advance specific changes in statutory law, it has attempted to redefine the substantive dimension of our education federalism in a manner that restores our faith in Brown, the ESEA, and the promise of racial and class equality.



The neoliberal vision of education federalism embodied by ESSA, NCLB, and RTT has improperly shifted the federal government's role in public education from one of promoting desegregation and social equality to one of promoting market efficiency through the artifices of competition, choice, and accountability. This deflection of moral responsibility for class and racial inequality is tied to a larger process of post-racialism and "post-oppression," whereby seemingly "neutral" market solutions are seen as sufficient to promote equality in a liberal democracy. There is, after all, a comforting allure to believing that social inequality is non-systemic, and thus avoiding the cognitive dissonance (and structural upheaval) that comes from confronting our continuing legacy of racial and class privilege.

Allowing the "invisible hand" of the market to sort educational outcomes under the guise of "competition," "choice," and "accountability," however, has led to a deepening of the crisis confronting our public schools. The federal role in public education has been reduced to incentivizing reform centered around market principles, rather than promoting desegregation and the equality envisioned by Brown and the original ESEA. "Our federalism" demands more than this. The substantive dimension of education federalism, as constitutionalized by Brown and framed by the original ESEA, must be restored in our public education policy. The adoption of a positive conception of the federal role in public education to frame future policy discussions can put us once again on the path towards achieving equality of educational outcome for all students.

Fourth, increased funding is vital to improve schools — the best research confirms.

Baker 17 — Bruce D. Baker, Professor in the Department of Educational Theory, Policy, and Administration in the Graduate School of Education at Rutgers, The State University of New Jersey, former Associate Professor of Teaching and Leadership at the University of Kansas, holds an Ed.D. in Organization and Leadership from the Teachers College of Columbia University, 2017 (“Does Money Matter in Education? Second Edition,” Albert Shanker Institute, Available Online at, Accessed 06-14-2017, p. 1-2)

Executive Summary

This second edition policy brief revisits the long and storied literature on whether money matters in providing a quality education. It includes research released since the original brief in 2012 and covers a handful of additional topics. Increasingly, political rhetoric adheres to the unfounded certainty that money doesn’t make a difference in education, and that reduced funding is unlikely to harm educational quality. Such proclamations have even been used to justify large cuts to education budgets over the past few years. These positions, however, have little basis in the empirical research on the relationship between funding and school quality.

In the following brief, I discuss major studies on three specific topics: (a) whether how much money schools spend matters; (b) whether specific schooling resources that cost money matter; and (c) whether substantive and sustained state school finance reforms matter. Regarding these three questions, I conclude:

Does Money Matter?

Yes. On average, aggregate measures of per-pupil spending are positively associated with improved or higher student outcomes. The size of this effect is larger in some studies than in others, and, in some cases, additional funding appears to matter more for some students than for others. Clearly, there are other factors that may moderate the influence of funding on student outcomes, such as how that money is spent. In other words, money must be spent wisely to yield benefits. But, on balance, in direct tests of the relationship between financial resources and student outcomes, money matters.

Do Schooling Resources That Cost Money Matter?

Yes. Schooling resources that cost money, including smaller class sizes, additional supports, early childhood programs and more competitive teacher compensation (permitting schools and districts to recruit and retain a higher-quality teacher workforce), are positively associated with student outcomes. Again, in some cases, those effects are larger than in others, and there is also variation by student population and other contextual variables. On the whole, however, the things that cost money benefit students, and there is scarce evidence that there are more cost-effective alternatives.

Do State School Finance Reforms Matter?

Yes. Sustained improvements to the level and distribution of funding across local public school districts can lead to improvements in the level and distribution of student outcomes. While money alone may not be the answer, more equitable and adequate allocation of financial inputs to schooling provide a necessary underlying condition for improving the equity and adequacy of outcomes. The available evidence suggests that appropriate combinations of more adequate funding with more accountability for its use may be most promising. [end page 1]

While there may in fact be better and more efficient ways to leverage the education dollar toward improved student outcomes, we do know the following:

Many of the ways in which schools currently spend money do improve student outcomes.

When schools have more money, they have greater opportunity to spend productively. When they don’t, they can’t.

Arguments that across-the-board budget cuts will not hurt outcomes are completely unfounded.

In short, money matters, resources that cost money matter, and a more equitable distribution of school funding can improve outcomes. Policymakers would be well-advised to rely on high-quality research to guide the critical choices they make regarding school finance.

Finally, claims that “money doesn’t matter” are unethical and wrong.

Baker 17 — Bruce D. Baker, Professor in the Department of Educational Theory, Policy, and Administration in the Graduate School of Education at Rutgers, The State University of New Jersey, former Associate Professor of Teaching and Leadership at the University of Kansas, holds an Ed.D. in Organization and Leadership from the Teachers College of Columbia University, 2017 (“Does Money Matter in Education? Second Edition,” Albert Shanker Institute, Available Online at, Accessed 06-14-2017, p. 15-19)

Summing Up The Evidence

This brings me to a summary of the evidence on whether money matters in education. Despite the relative consistency of empirical findings over time regarding (a) whether per-pupil spending itself is related to student outcomes; (b) whether spending-related resources, such as teacher wages and class sizes, are related to student outcomes; and (c) whether improving the adequacy and equity of school funding can have positive effects on student outcomes, a persistent cloud of doubt hangs over political deliberations on school funding. Here, I review briefly the sources of that doubt, relative to what we do know with some confidence as well as what we still have yet to figure out about money and student outcomes.

Main sources of doubt

The primary source of doubt to this day remains the above-mentioned Eric Hanushek finding in 1986 that “there appears to be no strong or systematic relationship between school expenditures and student performance.”117 This single quote, now divorced entirely from the soundly refuted analyses on which it was based, remains a mantra for those wishing to deny that increased funding for schools is a viable option for improving school quality. Add to this statement the occasional uninformative and inflammatory anecdote regarding urban district spending and student outcomes in places like Kansas City or New Jersey, or the frequently re-created graphs showing spending and achievement over the past few decades, and one has a rhetorical war against an otherwise overwhelming body of empirical evidence.118

While research evidence regarding the importance of funding and specific schooling resources for improving student outcomes has become clearer with time, Hanushek and a [end page 15] handful of peers have become even more entrenched in their views, as reflected in recent public testimony. Rhetoric among detractors has continued to drift from the cloud of doubt to a rock of certainty. That is, certainty that money has little or no role in improving school quality, and that school finance reforms that infuse additional funds only lead to greater inefficiency, having little or no effect on either equity or adequacy of schooling. Notably, Hanushek asserts (now and then) that it’s not that money doesn’t matter at all, but rather that additional money doesn’t matter on top of the already high levels of spending that currently exist across all U.S. schools.

To summarize, the current dogma of Hanushek includes the following core tenets:

1. Because schools already spend so much and do so with such great inefficiency, additional funding is unlikely to lead to improved student outcomes.

2. How money is used matters much more than how much money is spent.

3. Differences in the amount of money some schools have than others are inconsequential, since those with less may simply make smarter spending decisions.

According the recent rhetoric of Hanushek, these principles are ironclad. In his own words, they are “conventional wisdom” on which “virtually all analysts” agree. They are “commonly believed,” “overall truth” and backed by an “enormous amount of scientific analysis,” “substantial econometric evidence” and “considerable prior research.” For example, in the winter of 2015, in the context of school funding litigation in New York state, Hanushek opined:

“An enormous amount of scientific analysis has focused on how spending and resources of schools relates to student outcomes. It is now commonly believed that spending on schools is not systematically related to student outcomes.”119

Yet, the enormous amount of scientific analysis to which Hanushek referred in his expert testimony was primarily referenced to a 2003 summary of much of his prior work from the 1980s, work which has been discredited on numerous occasions,120 including by research produced in the last 12 years. Similarly, in the same context (Maisto v. State of New York), Hanushek proclaims:

“There has been substantial econometric evidence that supports this lack of relationship.”

Hanushek again backs his claims with the same short list of dated self-citation.121 In an even more recent attempt to rebut a new, major study finding positive effects of school finance reforms,122 Hanushek (2015) makes the following version of the same claim:

“Considerable prior research has failed to find a consistent relationship between school spending and student performance, making skepticism about such a relationship the conventional wisdom.”123

This time, he anchored that claim only to his 2003 piece (by hyperlink to the “prior research” phrase) on the failure of input-based schooling policies, 124 choosing to ignore entirely the considerably larger body of more rigorous work I summarize in my 2012 review on the topic.

The extension of these claims that nearly everyone agrees there’s no clear relationship between spending and student performance is the assertion that there is broad agreement that how money is spent matters far more than how much money is available. As phrased by Hanushek in the context of New York state school finance litigation:

“Virtually all analysts now realize that how money is spent is much more important than how much is spent.”125

As with the prior declarations, this one is made with the exceedingly bold assertion that virtually all analysts agree on this point—without reference to any empirical evidence to that point (a seemingly gaping omission for a decidedly empirical claim about a supposedly empirical truth). Further, “how money is spent” is constrained by whether sufficient money is there to begin with. While common sense dictates that how money is spent clearly matters, thus making this part of the statement widely agreeable, this does not preclude the relevance of how much money is available to spend.

Perhaps most disconcerting is that Hanushek has recently extended this argument to declare that equity gaps in funding, or measures of them, aren’t an important policy concern either. Specifically, Hanushek proclaims:

“It also underscores how calculations of equity gaps in spending, of costs needed to achieve equity, or of costs needed to obtain some level of student performance are vacuous, lacking any scientific basis” (p. 4).126

Put differently, what Hanushek is opining by declaring calculations of equity gaps to be vacuous and lacking scientific basis is that it matters not whether one school or district has more resources than another. Regardless of any spending differences, schools and districts can provide equitable education—toward equitable outcome goals. Those with substantively fewer resources simply need to be more efficient. Since all public schools and districts are presently so inefficient, achieving these efficiency gains through more creative personnel policies, such as performance-based pay and dismissal of “bad teachers,” is easily attainable.

Of course, even if we assume that creative personnel policies yield marginal improvements to efficiency, if schools with varied levels of resources pursued these strategies [end page 16] with comparable efficiency gains, inequities would remain constant. Requiring those with less to simply be more efficient with what they have is an inequitable requirement. This argument is often linked in popular media and the blogosphere with the popular book and film Moneyball, which asserts that clever statistical analysis for selecting high-productivity, undervalued players was the basis for the (short-lived) success in 2002 and 2003 of the low-payroll Oakland Athletics baseball team. The flaws of this analogy are too many to explore thoroughly herein, but the biggest flaw is illustrated by the oft-ignored subtitle of the book: The Art of Winning an Unfair Game. That is, gaining a leg up through clever player selection is necessary in baseball because vast wealth and payroll differences across teams make baseball an unfair game. The public’s interest in providing equitable and adequate funding for education is likely greater than ensuring equitable and adequate baseball payrolls. Put more bluntly, the education of present and future generations should not be an unfair game.

From judges to scholars, critics of Hanushek have characterized his evidence as “facile,” based on “fuzzy logic,”127 and “weak and factually tenuous.”128 Two recurring examples used by Hanushek to illustrate the unimportance of funding increases for improving outcomes are the “long-term trend” or “time trend” argument and anecdotal claims of the failures of input-based reforms in New Jersey. Baker and Welner (2011) tackle in depth the fallacies of Hanushek’s New Jersey claims.129 Here, I point to Hanushek’s own, albeit facile, unacknowledged self-debunking of his New Jersey claims. But first, I address the long-term trend claim.

Again, from recent testimony in New York state, Hanushek provides the following exposition of the long-term trend assertion:

“The overall truth of this disconnect of spending and outcomes is easiest to see by looking at the aggregate data for the United States over the past half century. Since 1960, pupil-teacher ratios fell by one-third, teachers with master’s degrees over doubled, and median teacher experience grew significantly (Chart 1).4 Since these three factors are the most important determinants of spending per pupil, it leads to the quadrupling of spending between 1960 and 2009 (after adjusting for inflation). At the same time, plotting scores for math and reading performance of 17-year-olds on the National Assessment of Educational Progress (NAEP, or “The Nation’s Report Card”) shows virtually no change since 1970 (Charts 2 and 3).5”130

This claim, like many of Hanushek’s, is made with language of astounding certainty—the “overall truth” as it exists in the mind of Hanushek. This claim is commonly accompanied by graphs showing per-pupil spending going up over time, pupil-to-teacher ratios going down and national assessment scores appearing relatively flat, much of which is achieved via the smoke and mirrors of representing spending and outcome data on completely different scales, and via the failure to adjust appropriately for the changing costs and related obligations of the public education system and for the changing demography of the tested population.131 Oversimplified visuals are used to make the proclamation that student achievement shows “virtually no change,” a statement discredited on closer inspection.132 Jackson, Johnson and Persico (2015) provide additional examples of how such facile analyses lead to fallacious conclusions.133

As explained by Baker and Welner (2011),134 Hanushek for years has cited the failures of New Jersey’s school finance reforms as the basis for why other states should not increase funding to high-poverty schools. In litigation in Kansas in 2011, Hanushek proclaimed:

“The dramatic spending increases called for by the courts (exhibit 34) have had little to no impacts on achievement. Compared to the rest of the nation, performance in New Jersey has not increased across most grades and racial groups (exhibits 35-40). These results suggest caution in considering the ability of courts to improve educational outcomes.”135

Hanushek reiterated these claims in the context of a even more recent New York school funding challenge.136 This is a surprising claim to preserve when one’s own recent (2012), marginally more rigorous analyses of state achievement growth rates on national assessments (from 1992 to 2011)137 find the following:

“The other seven states that rank among the top-10 improvers, all of which outpaced the United States as a whole, are Massachusetts, Louisiana, South Carolina, New Jersey, Kentucky, Arkansas, and Virginia.”138

Further, the same report reveals that New Jersey has seen particularly strong growth in reducing the number of the lowest-performing students (those scoring at the “below basic” level), especially for eighth-grade math. To be sure, there are others in academe and policy research that raise questions about the most effective ways to leverage school funding to achieve desired outcomes, and do so via more rigorous, thoughtful analyses. The most recent rigorous and relevant academic research is addressed in the remainder of this brief. There are others who opine in the public square139 and courtroom140 that school finance reform—specifically infusing additional funding to districts serving high-need student populations—is neither the most effective nor the most efficient path toward improving schooling equity or adequacy. But empirical evidence to support claims of more efficient alternatives remains elusive.

No rigorous empirical study of which I am aware validates that increased funding for schools in general, or targeted to [end page 17] specific populations, has led to any substantive, measured reduction in student outcomes or other “harm.” Arguably, if this were the case, it would open new doors to school finance litigation against states that choose to increase funding to schools. Twenty years ago, economist Richard Murnane summarized the issue exceptionally well when he stated:

“In my view, it is simply indefensible to use the results of quantitative studies of the relationship between school resources and student achievement as a basis for concluding that additional funds cannot help public school districts. Equally disturbing is the claim that the removal of funds … typically does no harm” (p. 457).141

Murnane’s quote is as relevant today as it was then. The sources of doubt on the “Does money matter?” question are not credible.

While there remains much to debate, discuss and empirically evaluate regarding the returns to each additional dollar spent in schools—and the strategies for improving educational efficiency, equity and adequacy—we must finally be willing to cast aside the most inane arguments and sources of evidence on either side of the debate. Specifically, the following five contentions no longer have a legitimate place in the debate over state school finance policy and whether and how money matters in K-12 education:

1. Vote counts of correlational studies between spending and outcomes, without regard for rigor of the analyses and quality of the data on which they depend;

2. The long-term trend argument and supporting graphs that show long-term spending going up and NAEP scores staying flat;

3. International comparisons asserting, and perhaps illustrating via scatterplot, that the United States spends more than other developed countries but achieves less on international assessments;

4. Anecdotal assertions that states such as New Jersey and cities such as Kansas City provide proof positive that massive infusions of funding have proven ineffective at improving student outcomes; and

5. The assertion that how money is spent is much more important than how much is available.

Vote count tallies without regard for study quality and rigor are of relative little use for understanding whether money matters in schooling and are of no use for discerning how. The long-term trend argument is perhaps the most reiterated of all arguments that money doesn’t matter, but it is built largely on deceptive, oversimplified and largely wrong characterizations (accompanied by distorted visuals) of the long-term trends in student outcomes and school spending. Facile international comparisons are equally deceitful, in that they (a) fail to account for differences in student populations served and the related scope of educational and related services provided; and (b) fail to appropriately equate educational spending across nations, including the failure to account for the range of services and operating costs covered under “educational expense” in the United States versus other countries (for example, public employee health and pension benefits). And anecdotal assertions of failures resulting from massive infusions of funding are rebutted herein and elsewhere.142

Finally, while the assertion that “how money is spent is important” is certainly valid, one cannot reasonably make the leap to assert that how money is spent is necessarily more important than how much money is available. Yes, how money is spent matters, but if you don’t have it, you can’t spend it. It is unhelpful at best for public policy, and harmful to the children subjected to those policies, to pretend without any compelling evidence that somewhere out there exists a far cheaper way to achieve the same or better outcomes (and thus we can cut our way down that more efficient path). As so eloquently noted by a three-judge panel in Kansas when faced with this question:

“Simply, school opportunities do not repeat themselves and when the opportunity for a formal education passes, then for most, it is most likely gone. We all know that the struggle for an income very often—too often— overcomes the time needed to prepare intellectually for a better one.

“If the position advanced here is the State’s full position, it is experimenting with our children which have no recourse from a failure of the experiment.”143

What do we know?

Based on the studies reviewed in this brief, there are a few things we can say with confidence about the relationship between funding, resources and student outcomes.

First, on average, even in large-scale studies across multiple contexts, aggregate measures of per-pupil spending are positively associated with improved and/or higher student outcomes. In some studies, the size of this effect is larger than in others, and, in some cases, additional funding appears to matter more for some students than for others. Clearly, there are other factors that moderate the influence of funding on student outcomes, such as how that money is spent. But, on balance, in direct tests of the relationship between financial resources and student outcomes, money matters. [end page 18]

Second, schooling resources that cost money, including class size reductions and increased teacher compensation, are positively associated with student outcomes. Again, these effects are larger in some cases and for some populations. On balance, though, there are ways to spend money that have a solid track record of success. Further, while there may exist alternative uses of financial resources that yield comparable or better returns in student outcomes, no clear evidence identifies what these alternatives might be.

Third, sustained improvements to the level and distribution of funding across local public school districts can lead to improvements in the level and distribution of student outcomes. While money alone may not be the answer, adequate and equitable distributions of financial inputs to schooling provide a necessary underlying condition for improving the adequacy and equity of outcomes. That is, if the money isn’t there, schools and districts simply don’t have a “leverage option” that can support strategies that might improve student outcomes. If the money is there, they can use it productively; if it’s not, they can’t. But, even if they have the money, there’s no guarantee that they will use it productively. Evidence from Massachusetts, in particular, suggests that appropriate combinations of more funding with more accountability may be most promising.

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