When Dave Welch, a wealthy Silicon Valley entrepreneur, financed a lawsuit in California that challenged teacher tenure, union and progressive critics railed that he was attempting an end run around the democratic process. In fact, it was liberal funders who first pioneered the use of litigation to force change in K-12 education—going back to Brown in the 1950s, and such efforts continue to this day, with a focus on equity in school financing, most recently yielding notable fireworks in Connecticut.
In a scathing 90-page ruling, a fed-up Connecticut judge tossed out the state’s school finance system, declaring it unconstitutional. Judge Moukawsher called out state and local education officials amid continued inequities throughout the state. The ruling itself centered on the state of Connecticut but it underscored an important point: After decades of lawsuits within states challenging systems of education in those states, so-called achievement gaps between students of color and white students, rich and poor kids, still persist.
Virtually every state in the U.S. has had such cases, with the highest court in New Jersey issuing over 20 rulings over four decades on the state’s education finance system. Other cases are pending in Kansas, New Mexico, Pennsylvania, South Carolina and Washington.
But just as Welch's Vergara suit recently foundered, losing in the California Supreme Court, years of foundation-backed litigation on equity have often produced disappointing results.
Much of the action in school finance lawsuit centers centers around an outfit called the Education Law Center (ELC), a nonprofit legal services firm based in Newark, New Jersey that was founded in 1973 by Rutgers Law Professor Paul Tractenberg with startup funds from the Ford Foundation. ELC scored its first major victory with the Abbott v. Burke cases in New Jersey that have reshaped that state’s education finance system in dramatic fashion over the past few decades.
Some of the bigger players investing in the Education Law Center (besides the Ford Foundation) are the Schott Foundation, and the William Penn Foundation. Ford was a pioneer in this school litigation funding in the 1970s, and its ongoing investment in this area makes sense for a foundation more focused than ever on addressing inequality, which many of these cases strive to tackle head-on. Schott continues to be a major funder of “protest” campaigns that challenge the structure of school systems such as opposing school discipline policies in major districts. And William Penn focuses much of its funding on its hometown of Philadelphia, where education finance issue continue to roil education politics (active litigaton is pending) in that city as well as in the state capital of Harrisburg.
Smaller outfits like Equal Justice Works, the philanthropic arm of the New Jersey Education Association (the state teachers’ union), and Public Interest Projects have all chipped in to support the Education Law Center over the years. Even the smaller funders like the Prudential Foundation and ETS, the Educational Testing Service, the folks that administer standardized tests like the SAT, have contributed to the ELC’s campaigns for greater equity in state education spending.
It should be noted that one major source of support for school finance lawsuits comes from pro bono services by lawyers in private practice. This sort of “in-kind philanthropy” from major law firms like Patton Boggs, Day Pitney, Paul Weiss, and others save small legal nonprofits like ELC millions in legal fees as complex cases drag out over multiple decades. Such non-monetary philanthropic investment should not be discounted just because it’s not presented in the form of a check.
The jury is still out (figuratively—as there is no jury in cases like these) on whether such seemingly landmark cases that significantly challenge school finance structures in states actually have much long-term impact on equity in schools. One observer, the Dean of the Harvard Graduate School of Education and an education law professor, Jim Ryan, says, “School funding cases don’t usually change the politics of funding. At the end of the day, the politics of funding are stronger than court orders.”
On the other hand, rulings like the one in Connecticut are powerful teaching moments and can produce some reforms, even if they may not turn out to be as systemic or as lasting as advocates would like. Is that enough of a return on investment to keep funders in the game for the long haul? I'll guess we'll see.
Correction: An earlier version of this article mistakenly referred to the Education Law Center as being based in Philadelphia. This article, as corrected, refers to the Education Law Center based in Newark, NJ, not to be confused with the Education Law Center of Pennsylvania, which calls Philadelphia its home.