Wednesday, August 21, 2013
A new article by Jared S. Buszin, Beyond School Finance: Refocusing Education Reform Litigation to Realize the Deferred Dream of Education Equality and Adequacy, 62 Emory L.J. 1613 (2013), applies state constitutional education rights to local district practices. His first premise is that school finance litigation and its focus on money has not made a significant difference in equalizing educational opportunities and certainly has not closed the achievement gap. His second premise is that school finance principles should apply to local district policies just as they do state wide policies. I would quible some with the breadth and implications of his first claim, but agree entirely with his second claim. In fact, I devoted significant time to the same premise in Middle Income Peers as Educational Resources and the Constitutional Right to Equal Access, 53 B.C. L. Rev. 373 (2012), because my entire legal argument that state constitutions placed limits on local student assignment policies hinged on it.
Buszin, however, puts the premise to a different task. He argues that access to quality teachers is the most important "skills based education input" available to schools and that the "last in first out" rule of teacher layoffs works to protect seniority and ignores teaching quality. He points to examples like a teacher of the year being layed off and analyzes a trial court decision in California that enjoined a district's teacher layoff policy as interfering with students' fundamental right to education. He then posits how the theory might apply in other states.
In the end, I believe Buszin is a little too dismissive of the importance of money and the impact of school finance litigation, and I am a little leary of pitting student rights against teacher rights given the attack by conservatives and some moderates on teachers over the past two or three years (even though I am sympathetic to his point about student rights coming first). Those concerns, however, are overshadowed by a strong and creative argument for extending school finance precedent to new contexts, and his ability to apply it to a very precise context. For those interested in analogous arguments, it is worth the read.