Could a lawsuit save our schools?

Nicholas Portz

Sunday, May 29, 2011 | 2:01 a.m.

When it comes to education, Nevada finds itself at the top of every bad list and the bottom of every good list.

By now, most Nevadans are familiar with (and probably sick and tired of) this tragically popular expression. Yet, despite its excessive use, it is the reality we face.

Nevada schoolchildren find themselves trapped in an inadequate education system, and with few signs of improvement ahead, many wonder what options remain. As the Legislature ponders further budget cuts, Nevada parents and other education advocates might consider a new strategy: Sue the Legislature for failing to live up to its constitutional duty to provide children with an adequate education.

Since the 1970s, plaintiffs across the country have filed lawsuits in state courts challenging the constitutionality of their school-finance systems. Virtually every state constitution contains an education clause that requires the legislature to provide a certain level of education for all children.

In school-finance reform lawsuits, plaintiffs allege that the state legislature has violated its constitutional duty by failing to provide the resources necessary for an adequate education. Typically, the judicial remedy requires that the legislature enact education reforms and increase school funding to constitutionally adequate levels.

Surprisingly, Nevada is one of only five states in the country that has yet to encounter a school-funding lawsuit. Yet many today see a strong legal and factual basis for such a complaint.

School-funding litigation in state courts has taken on two distinct forms. The first is an equity-based approach, which focuses on equalizing per-pupil funding disparities across school districts. The second is an adequacy-based approach, which seeks to establish an “adequate” education for students by focusing on the overall sufficiency of funds and quality of educational opportunities.

For a number of reasons, the adequacy approach has become the preferred tactic of school-finance reform litigants.

First and foremost, the adequacy-based approach has a much higher plaintiff success rate. Second, adequacy arguments are based solely on the education provisions of the state constitution. Finally, under adequacy claims, courts typically take a stronger role in education-finance reform and are able to outline broad education goals defining the contours of a constitutionally adequate education.

An adequacy-based approach to school-finance reform litigation would be preferable in Nevada as well. To begin with, Nevada’s education funding system is, by all accounts, highly equitable. Funding across Nevada’s school districts is provided on equal terms, and for that, the current education system should be commended.

The problem, however, would seem to be that our schools are being funded at an equally inadequate level.

The adequacy approach would also fare well in Nevada because of its emphasis on the state constitution’s education clause. Compared with other state constitutions, many legal scholars argue that the plain language of Nevada’s education provision places a much higher duty on the Legislature to promote education.

As interpreters of the Constitution, it is the responsibility of the Nevada judiciary to articulate what that duty entails and determine whether the current education system is in compliance.

Studies have shown that court-ordered finance reform tends to increase district funding levels and, in some cases, has even led to lasting education reform. To be fair, success in the courtroom has not always translated into success in the classroom. However, Nevada is in a unique position to benefit from history by mimicking the successes and avoiding the missteps of states that have faced finance reform litigation.

Nevada boasts the nation’s highest high school dropout rates and number of students per school. We’re also among the lowest in per-pupil expenditures, and our students’ test scores fall below almost every other state in the nation. For the second year in a row, Education Week ranked Nevada’s education system last in its ability to provide its students with opportunities for success. There is nowhere to go but up.

In the end, an education reform lawsuit is not just about increasing funding, but engaging in true education reform. The ultimate goal is to provide a constitutionally adequate level of education for Nevada schoolchildren.

In addition to a desperately needed increase in funding, the Legislature can determine whether other education reforms, such as teacher accountability, are necessary to achieve that goal. A finding by the Nevada Supreme Court that the state’s education system is unconstitutional could be the jolt needed to force the Legislature’s reluctant hand into making the changes necessary to ensure a quality education for our children. Perhaps then, Nevada can begin its climb toward the top of the good lists and descent to the bottom of the bad lists.

Nicholas Portz is a recent graduate of the William S. Boyd School of Law and the author of a forthcoming student note in the Nevada Law Journal on the topic of school-finance reform litigation in Nevada.