Litigating for the Right to Education in the United States: Part 2

by | Sep 19, 2017

author profile picture

About Michael Rebell

Michael A. Rebell is a Professor and Executive Director of the Campaign for Educational Equity at Teachers College, Columbia University. He is also an Adjunct Professor at Columbia Law School. Rebell was co-counsel for plaintiffs in the CFE litigation and is currently co-counsel for plaintiffs in NYSER v. State of New York.


Michael A. Rebell, “Litigating for the Right to Education in the United States: Part 2” (OxHRH Blog, 19 September 2017) <> [Date of Access]

In yesterday’s blog post, I reviewed US right to education litigation at the federal level, and at the state level in New York and New Mexico. In this post, I will consider litigation that has taken place in Kansas, Washington and North Carolina.


Issuing its fourth decision since 2014 in Gannon v State, the Kansas Supreme Court held in March 2017 that the state’s education financing system is, “not reasonably calculated to have all Kansas public education students meet or exceed the minimum constitutional standards of adequacy.”  It ordered the state to enact a new constitutionally-acceptable education funding system by June 30, 2017. The legislature adopted a bill in late June 2017 that puts back in place a per-pupil funding formula that is similar to the formula the lawmakers had repealed in 2015 and replaced for two years with a system of block grants that the court held to be unconstitutional. The bill will increase school funding by $293 million over the next two years.

The plaintiffs have now filed a motion that claims that an increase of $893 million ($567 million this year and $893 million in 2018-2019), as recommended by the State Board of Education, is required to close the achievement gap. The State’s brief countered that the state board’s figure was “aspirational” and that funding needed to be increased only for “at-risk” students and not across the board. Plaintiffs claim that the amounts in the new formula are insufficient to meet the actual needs of at-risk students.


Racing to meet a deadline set by the state Supreme Court, Washington Governor Jay Inslee signed into law at 11 pm on June 30 a state budget that includes a $7.3 billion increase over four years for education. Inslee stated that, “This budget, at long last, meets our constitutional obligations to fully fund basic education, and addresses the responsibilities we have under the McCleary decision to equitably fund our schools.”  However, Thomas Ahearne, the attorney for plaintiffs in the six year-old McCleary v. State of Washington case, said that the state’s funding plan falls far short of what the Supreme Court has ruled is necessary to meet the all the costs of  providing an “ample” basic education. “I don’t think the elected officials are lying,” he said. “I think they just don’t know what they are talking about.”

The complicated school funding compromise will raise property taxes in some areas and lower them in other areas, especially in rural Washington. Additional revenues will also come from creating an online sales tax, and removing tax breaks on bottled water and a sawmill exemption that was taken over by oil refineries.

The Court has found the state in contempt of past orders and has ordered monetary fines as a sanction. The judges had ordered the state to enact necessary reforms to be implemented by 2018 in the 2017 legislative session, and required the state to submit a report discussing the steps it has taken to comply with outstanding court orders.  Plaintiffs have indicated that they will shortly submit formal objections to the state’s report. Thereafter, the Court will decide if the state has met its compliance requirements.

North Carolina

Signaling a new era in a long-running public school lawsuit, on Monday 7 August attorneys for the two sides in the 20-year old Leandro v. State of North Carolina[1]a case jointly requested that the court appoint an independent consultant to suggest additional steps to the state to improve education for all children in North Carolina. The state supreme court had declared that the State Constitution guarantees every child “an opportunity to receive a sound basic education,” and it upheld the trial court’s determination that the state was not providing such an education to the children in the plaintiff district.

After two decades of litigation, the plaintiff school districts and the state have now agreed to nominate an independent, “non-party” consultant to the court by October 30, or, if they can’t agree on one, to nominate three possibilities. At about the same time, Governor Roy Cooper signed an executive order creating the Governor’s Commission on Access to Sound Basic Education. Cooper said “it is far past time for the State to implement comprehensive, inter-disciplinary measures that allocate the resources necessary to ensure that the promise of a sound basic education for children in this State is realized.” Commission members will be appointed by the governor.

The consultant and the commission would work independently of each other and develop separate reports, according to the joint proposal submitted to the court last month. The consultant wouldn’t be a member of the commission but could attend meetings and will be given access to the panel’s evidence. The consultant would also develop information and could share it with the commission.


Editor’s Note: The strategic decisions by litigators that have shaped education financing litigation in the US, including some of these latest developments, will feature in the Oxford Human Rights Hub’s forthcoming online course: Learning Lessons from Litigators: Realising the Right to Education through Public Interest Lawyering. Through dynamic interviews with leading litigators from around the globe, we share the stories of major campaigns for the right to education, demonstrating the potential of litigation as a complementary strategy to other forms of activism. The free online course takes the form of a four-part video series to be launched in October 2017.

Share this:

Related Content


Submit a Comment