School Finance Adequacy as Vertical Equity

In this Article, Dean Underwood explains that school finance cases can be divided into three waves of reform. The first wave involved efforts to use the Federal Equal Protection Clause to overturn financing systems. Litigants in the second wave turned to state equal protection and due process clauses. Finally, the third wave involved the utilization of education clauses in state constitutions as the predominant litigation vehicle. These three waves embody two primary approaches to school finance litigation. The first approach involves a challenge to the adequacy of a state’s funding system under either the state or federal equal protection clause, the primary focus being equality in spending among districts. The second approach, which was used in school finance litigation during the third wave, is based on the education clauses in state constitutions. The argument in such a case is that the legislature has not fulfilled its obligation to provide an education. The theme in cases using the state education clause is adequacy from the perspective of “vertical equity,” meaning that different students should be treated differently based on their special educational needs. More recent school finance cases have concentrated on this second approach and thus have shifted the focus from equal resources to an adequate education for all students. Dean Underwood concludes, however, that this approach still focuses on education inputs rather than on desired educational outcomes.