Last week, in a letter to Treasury Secretary Steve Mnuchin, House Speaker Nancy Pelosi outlined priorities for negotiating COVID-related stimulus and programmatic plans. On her short list: funding for public K-12 schools.

In the 2008 Recession, schools were hit especially hard, such that many districts still have not recovered. What’s more, these funding shortfalls disproportionately impacted schools in low-income or Black or Latino communities. This is expected to be the case during our current economic downturn as well, if nothing is done to combat it.

Lawyers have long been fighting school funding inequities by doing what they do best: filing lawsuits. For the most part, these suits have been against districts or states under state constitutions, since the United States Supreme Court has severely limited the availability of federal claims related to education. In contrast, all 50 state constitutions contain some sort of education clause, though with varying degrees of substantive guarantees. For example, the North Carolina Constitution guarantees a right to a free education, and that the state shall be responsible for establishing and maintaining a uniform public school system. Meanwhile, Florida’s constitution establishes that it is a “paramount duty” of the state to provide a “uniform, efficient, safe, secure, and high quality” public school system. The precise language in the state constitution will guide what legal claims are available for school funding suits.

In nearly all 50 states, lawsuits have been filed presenting a funding “adequacy” or “equity” challenge: the two primary litigation vehicles for securing more funding for under-resourced schools. An equity argument can be brought under either the state’s equal protection clause or its education clause, and alleges that the state is failing to provide funding in an equitable way across or within districts. Impact litigation began with a wave of equity-based arguments, as they provide a relatively simple judicially-enforceable standard. When advocates realized that some states had been responding by taking funding away from districts in order to balance inequities, they turned to an adequacy-based strategy instead. Adequacy arguments are generally that a state is failing to provide adequate funding in an absolute, as opposed to a comparative, sense. Adequacy arguments, when successful, can be remedied only through more funding, not less. Which argument a lawyer chooses to bring will depend on whether the state constitution mentions “equitable” or “adequate” in its education clause, and whether courts in that jurisdiction have previously allowed for such state constitutional claims.

While these legal tools are generally available, state litigation has highlighted the limitations of a litigation-only strategy. Although every state provides some constitutional right to an education, courts in just half of them have held that the constitutional provision translates to a legally enforceable right to equity or adequacy in school funding. Florida serves as a helpful example: although the Florida constitution contains comparatively strong language for a “uniform” and “high quality” system provided by the state, the Florida Supreme Court held in 2019 that the constitutional provision did not create any manageable standard for the court to determine whether funding was in fact “adequate.” This means that, even though there might be state constitutional language outlining this right, that does not mean a court will step in to enforce it if the legislature fails to meet its burden.

The hesitancy of courts to weigh in on funding equity and adequacy in education has been a consistent point of frustration. In Illinois in particular, advocates have brought a series of these suits, beginning with The Committee for Educational Rights v. Edgar in 1995. In all of them, the state supreme court has declined to find for the plaintiffs on questions of adequacy, stating in one case that “questions relating to the quality of education are solely for the legislative branch to answer.” This was true even when the legislature had taken the step of codifying concrete benchmarks for defining “adequacy” in public schools.

Advocates are still hard at work, however, bringing lawsuits to convince their state courts to finally undertake judicial review of school funding, or to hold legislatures accountable to prior court orders. 15 different states are facing lawsuits, filed pre-pandemic, surrounding their school funding schemes: Arizona, Arkansas, Delaware, Iowa, Kansas, Maryland, Michigan, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Rhode Island, and Tennessee. It’s possible the COVID-19 pandemic will add new considerations to these lawsuits that could sway judges where they otherwise would have been reluctant to rule against the state. For example, remote learning and pandemic-related budget cuts are putting in stark relief the racial and socioeconomic disparities that education advocates have long been calling to attention. From a realist perspective, the ongoing economic crisis may make state leaders more willing to settle and avoid drawn-out litigation.

In an ideal world, a strategy aimed at school funding reform would incorporate litigation, legislative advocacy, and community organizing as opposed to relying exclusively on courts. Overhauling school funding likely implicates things like property taxes and the state’s general funds, and is a politically difficult lift. Utilizing the courts can therefore be an impactful tool for taking politics out of it; an elected representative might not be as hesitant to propose funding reform if she’s doing so because of a court order. At the same time, allowing legislators to craft the details of the restructured funding makes sense if one feels like perhaps judges really aren’t in the best position to work on those technical aspects: judges are further removed from the realities of constituents, and don’t have the same ability to create committees, expert panels, public comment sessions, etc. Finally, community organizing is a key piece of any reform movement, as it not only helps keep lawmakers’ feet to the fire, but also ensures a representative sample of community voices are being included in the process, establishing the necessary systems to ensure any reforms are ready to be embraced and implemented smoothly.

Whether or not one agrees with the method of change sketched out above, it’s clear something needs to be done to address school funding inequity and inadequacy, particularly given our current economic and health crisis. These events have exposed existing inequities in our education system and brought them to the forefront, causing many to realize that it is not something we can continue to put off. Advocates, including lawyers, should harness this momentum to make long-lasting changes to support students.