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Jewish World Review April 29, 2002 / 17 Iyar, 5762

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Consumer Reports

A Tale of Two Lawsuits | PHOENIX Two lawsuits filed here, each responding to the same problem, neatly illustrate contrasting liberal and conservative responses to failing elementary and secondary schools. The liberal suit asserts the rights of the failing party -- the government -- to more money, in the hope that it will produce satisfactory education, someday. The conservative suit asserts the rights of those the government has failed -- students and their parents -- to immediately choose from a range of ready remedies.

Article 11, Section 1 of Arizona's Constitution says: "The legislature shall enact such laws as shall provide . . . a general and uniform public school system." But what governmental obligation, or individual right, is created by the word "uniform"?

Seven Arizona school districts have formally, by filing a lawsuit, acknowledged that they cannot fulfill the state's constitutional obligation. Specifically, they cannot adequately educate at-risk students. Adequacy is defined by the test known as Arizona's Instrument to Measure Standards.

About 200,000 of this state's 800,000 students -- one in four -- are considered at-risk for academic failure because of their socioeconomic status. The parameters of the pertinent status cannot be precisely defined. Hence the category "at-risk" is inherently elastic. But not infinitely so.

Ample data indicate that the best predictors of a school's performance are qualities of the homes from which the students come. These are qualities such as the number of parents in the home (the parent-pupil ratio at home is much more important than the teacher-pupil ratio in the classroom), the quantity and quality of reading matter in the home, the amount of television watched in the home and the amount of homework done.

The Arizona Center for Law in the Public Interest, an organization of liberal litigators, represents the failing school districts. It argues that the districts' inability to deliver the constitutionally mandated guaranteed education proves that the state's system for financing schools is unconstitutional. That is, the system does not generate sufficient money to finance "known and effective programs" -- e.g., tutoring, reduced class sizes, before- and after-school programs -- to counteract the conditions that put students at risk.

Arizona's school financing system supplements districts' budgets for children with limited English proficiency and with disabilities, but not for children designated at-risk. Therefore, the liberal suit says, Arizona is not providing a "general and uniform" education, so the court should order the financing of necessary programs.

Never mind the suit's dubious premise that increased financial inputs to a school system are certain to increase cognitive outputs. However, note two legal problems.

The suit represents school districts, not students. But students, not school districts, have rights -- and standing to sue -- under Arizona's constitution. Furthermore, the liberal suit does not complain, as many school financing suits have complained, of disparate levels of funding; the suit demands disparate levels. But Arizona's constitution never has been construed to require extra funding to remedy deficiencies of student achievement when the deficiencies are caused not by the school financing system but by socioeconomic factors.

The contrasting -- the conservative -- suit is filed on behalf of students by the libertarian litigators of the Institute for Justice Arizona Chapter. This suit, like the other one, assumes a constitutional violation -- the state's default on its obligation to provide a "general and uniform" education, a default that leaves some students with "little hope for a life any better than second-class citizenship forced upon them by being dumped into the world's most advanced economy without even the most basic education."

But the liberal suit seeks a remedy that is uncertain, and certainly far down the road -- after additional funding is found and after it finances new programs. The Institute for Justice suit seeks a remedy that can be immediate and perhaps without additional cost. The suit says:

It is unnecessary for at-risk students to suffer additional injury to their life chances while the state struggles to find extra money and devise ways to make that money improve the derelict school districts. Satisfactory instruction can be had right now at numerous private schools. Arizona has a voucher program to empower special education (mentally handicapped) students to meet their needs in private schools. At-risk students should be allowed to make their share of public education funds portable -- to take it to private schools.

Clint Bolick of the Institute for Justice says, "Education is the most important product that does not come with a money-back guarantee." What a concept. A conservative one.

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