Faculty & Research

Recent Publications - Journal Articles

Brother, can you spare a dime?:  Contemplating the future of school funding litigation in tough economic times

Dayton, J., Dupre, A., & Houck, E. A.
Education Law Reporter, 258, 937-954 (2010)

Serrano v. Priest, [FN1] led the way for state courts nation–wide to issue orders for school funding reform. [FN2] This has been no small fiscal endeavor. [FN3] Public education is generally the largest item in state budgets, [FN4] so large that even modest proportional increases are measured in many millions, and billions of dollars of additional expenditures over time. [FN5] Although adequate funding for education is essential, reform driven by school funding litigation has required a massive and protracted financial commitment by many states. [FN6] In sharp contrast to the federal government, however, most states must balance their budgets annually, and cannot spend money they do not have. [FN7] So what happens when state fiscal resources are insufficient and states have massive budget shortfalls, making it extremely difficult or impossible to provide plaintiffs with funding remedies because they exceed available means?

      As nearly four decades of post–Serrano litigation demonstrates, there are few certainties in the school funding litigation process. [FN8] But this much is clear: when a state's constitution requires an annual balanced budget, state legislators must reconcile expenditures with resources on an annual basis. State legislators cannot ignore fiscal realities when there is a budget shortfall. They must either increase revenue or, if this is not feasible, reduce expenditures. What is less certain, however, is to what extent state judges' opinions are influenced by these fiscal realities. This is a critically important question with so many states now facing grave, potentially long–term fiscal difficulties, while school funding litigation continues in many states.

      This article examines the inevitable collision of funding reform litigation efforts and state fiscal realities. This article provides a review of prior judicial statements on the legal relevance of state fiscal difficulties in school funding litigation, an assessment of the 2008 Economic Collapse and the resulting likely future fiscal landscape, a brief review of state high court decisions since the 2008 Economic Collapse, and a discussion and analysis of school funding litigation and judicial review in this starkly changed fiscal landscape.”