Author Peter Schrag talks about the Hancock case and the slippery concept of adequacy in education

As of this writing, the state’s Supreme Judicial Court has yet to hand down a ruling in Hancock v. Driscoll, the latest round of educational-equity litigation that has been on the high court’s docket for more than 30 years. Not that nothing has come of the long-pending case. In McDuffy v. Secretary of Education, the lawsuit’s previous incarnation, the SJC declared the state’s schools unconstitutional in sweeping fashion, ordering the Commonwealth to reset its educational expectations and its funding mechanism. But the impact of that bold proclamation was blunted by the Education Reform Act of 1993, a piece of legislation signed into law within days of the court’s ruling that promised to do just what the SJC demanded: set academic standards consistent with the court’s, hold schools accountable to those standards statewide, and provide funding that would enable even the most impoverished communities to educate their students to ambitious levels.

A dozen years later, the case is back before the state’s highest court and fingers are crossed – educators’ and advocates’ in hope, policy-makers’ and budget writers’ in fear – in anticipation of a ruling that could send education reform and school finance in Massachusetts back to the drawing board. Last issue, CommonWealth collected views from a range of interests about the Hancock case, what it means, and what should be done about schools that are still not up to snuff. (See Symposium, CW, Fall ‘04.) Those essays took as their touchstone the seven-month Hancock trial and Superior Court Judge Margot Botsford’s recommendations to the SJC based on the evidence.

But now the tea leaves, hard enough to read at that time, have been further stirred by the oral arguments that took place before the SJC October 4. In their Socratic questioning of both sides, the justices seemed as skittish about imposing their judicial will in funding – traditionally a legislative prerogative – as Judge Botsford was bold, and as interested in the matter of how the state would ensure that money is well spent as in how much money it should dole out. And no matter how the court rules – and it may indeed have ruled by the time this article appears – the state will be grappling with questions of how much to spend on education, and how to spend it, for years to come.

It’s a riddle Peter Schrag has seen courts and lawmakers wrestle with before – many times, in many places around the country, and in many forms. Schrag is not a lawyer but a journalist, though his interest in schools over more than 40 years has drawn him to courtrooms and legal documents as often as to classrooms. The longtime editorial-page editor of the Sacramento Bee may be best known for his 1998 book Paradise Lost: California’s Experience, America’s Future, which was selected as a New York Times Notable Book. But it is his 2003 tome, Final Test: The Battle for Adequacy in America’s Schools, that is pertinent here – pertinent enough that Harvard’s Graduate School of Education brought him east for a series of forums and classes in November. CommonWealth caught up with Schrag in Cambridge and asked him to put Massachusetts’s still-pending educational “adequacy” case into national perspective. What follows is an edited transcript of our conversation.

CommonWealth: For starters, as a legal concept, how did the notion of adequacy supersede equity? And how is that change, both legally and politically, driving the push for better schools, especially for those serving the disadvantaged?

Schrag: Well, adequacy sort of evolved from equity. But in a lot of these cases around the country, equity and adequacy, to some extent, have gotten sort of mooshed together. The idea of equity was that you provided not necessarily equal amounts of money but levels of resources that were commensurate with the needs of the students, or were at least proportional to the needs of the students. Adequacy asks a wholly different question. It’s a question that we never asked until 20 years ago in this country. Essentially, we always provided resources through the usual political sausage machine, which involves wheeling and dealing to divvy up the pot, along with money for roads and money for cops, and whatever. Suddenly, we started to ask what is necessary to educate a child. It’s a question we’ve been asking, both in the courts and in the political sphere, now for going on 20 years, but in not a very linear fashion – more of a circular fashion, actually. All of this was driven by the standards movement. Essentially, once the states started to set standards, started to set accountability systems, testing systems with high-stakes tests – “If you, Johnny, don’t pass the test, you don’t get a diploma; if you don’t read adequately in the third grade, you don’t get promoted” – then, of course, the commensurate question became: What are you, the state, going to do to provide the resources to enable the schools and the individual students to succeed? That’s been a very powerful engine… [and] the state courts have picked up on this all over the place. If I were Gershwin, I’d write a song called “Adequacy Is Sweeping the Country.” But it doesn’t scan very well. [Adequacy] is not a very nice word.

CommonWealth: It wouldn’t quite set your toes a-tapping.

Schrag: No, not exactly. It’s a terrible word.

CommonWealth: As I read through your account of the way these struggles have played out, both in the courts and legislatures around the country in places like Kentucky, Ohio, California, New Jersey, and New York, I started to count Massachusetts as pretty lucky. As opposed to what was, in most states, a succession of court orders followed by response, counter-response, acceptance, resistance, etc., from the political class, in Massachusetts in 1993 we had almost simultaneously the state Supreme Judicial Court ruling that school finance in the state was unconstitutional…

Schrag: In the McDuffy case.

CommonWealth: Right. In McDuffy, the court ruled that the education being provided for children was inadequate from the standpoint of the state constitution and that the means of financing it was unconstitutional, and ordered the state to do something about it. The state did do something, as a matter of fact, having been on a political track parallel to this legal case, and came up with the Education Reform Act of 1993, which essentially did all those things that the Supreme Judicial Court wanted. It defined adequacy financially, by means of a foundation budget, made a commitment over seven years to raise spending in all districts to at least foundation budget level, and began the process of setting state standards and establishing accountability mechanisms, through the MCAS test, to hold students and especially schools accountable for providing that level of constitutionally adequate education. That led to 10 years of steadily increased funding for schools and, though not without controversy, 10 years of standards-based education reform. How unusual was this, what seems now to be a fairly orderly process, compared with what some of these other states have gone through?

Schrag: It is somewhat unusual. The most comparable situation I know of was in Kentucky, in 1989, where the Supreme Court essentially declared the whole state education system unconstitutional – everything, every part and parcel. [The ruling] included standards, it included funding, it included the whole deal. The court said to the Legislature: Start over, create a new system – which the Legislature at that moment happened to be ready to do. The stars were all aligned. The business community had been very restive about the low reputation that Kentucky schools had. The executives obviously wanted schools that were respectable not only for their kids but in terms of [attracting] employees and so on. And the teachers’ union was ready to make the deal on standards in return for more money. So Kentucky is the nearest example I know of. The other example is Maryland, where there was never a final court order – there were some trial court orders – and the Legislature passed legislation that addressed a whole lot of problems. [In contrast,] most other states have been engaged in what you would politely call dialogue between the court and the Legislature. In some cases, as in Ohio, the Legislature basically just ignored the court. The court issued four orders saying, “You’ve got to redo the system; it’s unconstitutional.” The Legislature put a lot of new money in, but the basic reform, which had to do with reducing the local tax burden and increasing the state share [of school funding], never happened. Finally, the court just gave up. But in a lot of states, now we’re going into the second round. We have a new set of lawsuits in Kentucky. We have a new suit in Texas, and a new one in Wyoming, where things seemed to be settled 10 or 15 years ago, and now the same plaintiffs or similar plaintiffs are coming back and saying, “You didn’t live up to your commitment.” So we’re going to have a second round, but still on the same basis. It’s not as if we got a new set of principles.

CommonWealth: Exactly. We find ourselves in our next phase here in Massachusetts with the Hancock case, which is the next iteration of McDuffy. Essentially the same matter has been reopened, and a trial judge has now ruled that additional funding and 10 years of standards-based reform notwithstanding, the education provided in poorer districts is still not adequate on the constitutional level and that a lack of resources is still largely to blame. The evidence basically is that students in these districts are not achieving at levels that are up to the state-established standards and that schools in poorer districts are spending at foundation levels or just above, while richer districts are spending well above their foundation levels – which is lower to begin with, but they have the freedom to exceed it by as much as they want.

Schrag: There’s no cap [on allowable spending] here, the way there is in some states.

CommonWealth: So, we’re getting back to that equity/adequacy confusion. The fact that richer districts are exercising their option to spend more than foundation and poorer districts are unable to do the same because they don’t have the means has been taken by the trial judge as prima-facie evidence that the foundation level must not be adequate in less wealthy districts. We’re still waiting for a ruling on this, but based on the kinds of arguments raised in the Hancock trial and in the trial judge’s recommendations to the SJC, are we in Massachusetts hitting a new level in the adequacy argument? Or are we just catching up to where some of these other states have been, in terms of playing out multiple rounds on the adequacy question?

Schrag: It’s a good question. I’m not sure I really know the answer to it. I think that what you’ve got in Massachusetts is actually a pretty good situation. Even though the gaps [in educational achievement] exist, the interesting thing is that the poorer districts in Massachusetts, on average, spend more money than the high-wealth districts. So the classic problem, which is that low-wealth districts were funding the schools at much lower levels because they couldn’t afford to spend more, is not true here. Here it’s quite the reverse, because of the foundation budget system, and so on. In fact, in Massachusetts, the reverse gap [where spending in low-wealth districts, thanks to state subsidies, is higher than in wealthier districts, which largely fund schools on their own] is larger than it is in any state in the union. Obviously, in these districts, the plaintiff districts of Hancock, for various reasons there’s still a problem there. But Massachusetts is kind of exemplary in how well it’s done, both in terms of its funding structure and in terms of its achievement levels. Massachusetts’s achievement scores are good, essentially, compared with the rest of the country. Your MCAS record has been good. So sitting in the depths of California, I’m saying: What are you complaining about?

CommonWealth: Putting things in national perspective, in other words, we should be pretty happy.

Schrag: We [in California] would trade with you any day. We’re now maybe 30th in the country in what we spend per pupil. In California, because for various reasons local districts have no incentive to tax themselves or have no ability to tax themselves additionally for schools, the average level of school spending compared with other states has gone down. Or, let’s put it this way, other states have gone up and we’ve stayed put. And you don’t have that problem.

CommonWealth: Well, in Massachusetts we have a similar mechanism in terms of limiting local property taxes, Proposition 2½, but it seems to be not nearly as rigid as Proposition 13 in California.

Schrag: That’s right. We can’t raise our local property tax no-how. We’re just stuck.

CommonWealth: A couple of interesting new issues arose in the Hancock initial ruling from Judge Margot Botsford that I’m anxious to have you put in national perspective. One is the difficulty of calculating adequacy. It seems to me that adequacy in school funding has sort of become the equivalent of pornography. You know it when you see it, but defining it beyond that is very difficult. There seems to be a certain level below which reasonable people would agree there’s no way you can expect schools to provide an adequate education and, at the other end, there seems to be a level at which almost everyone agrees that, with this much money, if you’re not providing a good education there’s got to be something wrong with the school. But that leaves a huge area in between, where there’s disagreement over whether inadequacy in educational quality is a matter of resources or not. In the Hancock case, the judge listened to testimony based on the leading methodologies in calculating adequacy – the professional judgment method and the successful schools method – and basically threw them both out, saying she couldn’t make any sense out of either of them. They seem to be either pie-in-the-sky or a laundry list of wishes from local educators without any real evidence that whatever it is they totaled up is both necessary and sufficient for a quality education. This would seem to be a fairly fundamental problem, not only in adequacy litigation but also in the practice of what it means for a state to live up to its promise to its children.

Schrag: Absolutely. And you’re right, it is a little bit like pornography. Below a certain level you know it’s too little. Above a certain level you should be able to do [the job]. Part of the problem is we haven’t fine-tuned it enough yet. I think everybody can sort of agree on what’s a suitable facility, within certain limits. I don’t think that’s hard. I don’t think materials are hard. Kids should have textbooks. Maybe they should have two sets of textbooks so they keep one at home and use one in school. We can argue about that, but that’s not a big thing. The crucial thing is teachers. What is a good teacher, how do you attract a good teacher, how do you keep good teachers in the schools that you want them in? Those are the questions that have not been addressed yet at the policy level. I don’t think they’re very esoteric questions. You can create incentives. Politically it’s not so easy, but policy-wise, it’s easy. Those questions haven’t been confronted partly because the policy-makers are afraid of the political repercussions. But it seems to me that [the key], particularly in the low-performing schools, is, you have to find a way to get and keep good teachers. I’m not even sure you have to define what is a good teacher. It seems to me what you have to do is give the school the ability to have choices among teachers. That means the physical situation ought to be attractive. There ought to be enough support help in those schools – counselors, reading specialists, those kind of folks – so that teachers don’t have to be everything to every kid. If you talk to teachers and say, “ What is it that you want?,” [they will answer], “Well, we want support. We want small classes. Safe parking spaces.” [Parking] is a ridiculous kind of peripheral thing, but it seems to be an important thing.

CommonWealth: The other question that arose in this round of Hancock is the notion of capacity. If one part of the equation is having adequate resources, the other part is being able to use those resources in ways that will produce better learning outcomes for students. If there’s one item that everyone can agree on as being essential to educational success, it’s good teachers.

Schrag: Absolutely.

CommonWealth: But how do you define a good teacher, other than as a teacher whose students are learning?

Schrag: If you have a decent principal and the principal has choices [between candidates for teaching positions], I think more times than not the principal will make the right choice. If he doesn’t have choices – if he has to start the first six weeks of school with a substitute because the system is so tight that it doesn’t know where the kids are going to be, and he can’t hire teachers until the classes are set – then he’s going to have to hire people that are less than perfect. He’s going to have to pick the first warm body he gets. If you look at good suburban schools, they have all the choices in the world. People want to go there to teach because the conditions are decent. The pay is reasonably good and, of course, the system has to be clean. It can’t be patronage-ridden. Maybe we ought to not only look at successful schools; maybe we ought to look at the conditions that create failing schools and see what’s to be avoided. We were talking last night [at a Harvard Graduate School of Education forum] about the Cambridge public schools spending huge amounts of money and apparently getting very little for it. My question was: What’s the problem? The short answer was the combination of patronage and ideology.

CommonWealth: An unholy brew if I ever heard of one.

Schrag: Right. That’s sort of the implicit compromise. If we can have our ideology, you can have your patronage, or vice versa. And that is an unholy brew. Personally, I know nothing about the Cambridge schools, but there are other places where that holds as well. In New Jersey, the so-called Abbott districts [named after the Abbott v. Burke education-finance case], which are the poor districts – Camden and Newark, Jersey City, Trenton, all the urban districts – are spending a lot more money for kids than the state average and as much as most of the suburban districts. So far the outcomes have not been great. Now that may change, because it’s early, but the outcomes have not been great. So just putting in money is obviously not enough. I saw that Bob Costrell had a piece in your most recent issue. [See Symposium, CW, Fall ‘04.] He made that point again last night, with that wonderful scatter diagram that you ran. There are poor districts that are doing reasonably well and there are poor districts that are doing horribly. So simple cash is not the answer. It comes back to your question: What is adequate?

CommonWealth: I wonder about this question of choices. If you are a principal or a superintendent, your choices are limited if you don’t have the competition in terms of applicants for teaching jobs, or if you don’t have the ability to hire in a timely fashion, so by the time you get around to hiring there’s nobody left. But there’s also the question of the installed base of teachers in your school or district. In the medium-to-large urban districts that seem to be failing their students, you’ve got teaching workforces in place over which principals and superintendents have no choice whatsoever, and very limited control.

Schrag: That’s absolutely right, and you have to [deal with] that over time. A new principal can’t come in tomorrow morning and run all the old teachers off and hire a whole new group. But he or she can certainly do that over a period of time, if she has the choices. That was part of the idea of reconstitution of schools. If a school is really failing, you clean the whole place out and start with a new crew. But you can do that only in rare instances and even then, it may not work. It seems to me you’ve got to make schools attractive for people to work in. I’m sure you’ve been in enough schools – I’ve been in lots of them – where I’d say, “I couldn’t stand being in here for more than five minutes.” And other places are very pleasant and wonderful and positive and exciting. There’s enormous difference [in conditions] not only between districts; it’s also within districts. There are often huge gaps in pay and in resources between School A and School B within the same district – depending on the experience of the teachers, because that means the salaries are higher, depending on the age of the building, and all of that.

CommonWealth: And if the senior, experienced teachers can get out of schools like that, then those schools are going to end up with the least experienced and lowest paid teachers.

Schrag: Right. Of course, there’s a problem with teachers’ contracts and with teachers’ unions and all of that, though in the end I don’t think that simply getting rid of seniority rights is going to solve that problem. It seems to me, no matter what you do, you’re not going to be able to assign a teacher to a school who doesn’t want to go there. They don’t want to teach there, and if they [are forced to teach there], they’re not going to do very well because they’re not motivated. So how do you create the incentives for people to want to go to those schools? And how do you create the incentives to do well in those schools? Then you get into value-added kinds of measurements and incentives. The unions go crazy when you raise those issues. But in the long run, that may be what you need to do. Do the children in the class that I’m teaching progress a year [in skills and knowledge] during the year that I’m teaching them? And if they progress less than a year, why is that? I don’t mean that you’re going to do terrible things to people [whose students are not progressing at the expected rate], but at least you want to measure that and be able to remediate the situation in some way. “Well, Ms. Jones, your kids only advanced six months while students with Ms. Smith next door did 1.3 years, so let’s figure out what’s going wrong.”

CommonWealth: Exactly. I wonder whether the way these lawsuits are playing out have made it almost impossible to entertain that kind of discussion. I was struck, in your account of the New York case [in Final Test], by the structural impediment to raising school management issues that was created by the alliance between the Campaign for Fiscal Equity, which filed the suit, and the New York City public schools. Because they were in cahoots, essentially, in prosecuting this case against the state of New York, the last thing they were going to bring up was whether it was mismanagement, patronage, and corruption in the public-schools bureaucracy that failed the children. Certainly people in the Romney administration here in Massachusetts, the defendants in the Hancock case, bristle at the role of the teachers’ unions in bankrolling the case. And they take it as no surprise that when Judge Botsford puts out her recommendations about what the Supreme Judicial Court should consider as remedies for failing school districts, it is a litany of proposals that the defenders of traditional public schools think would be good – early childhood education, smaller classes, higher pay for teachers, these sorts of things. You don’t get suggestions like stronger management reforms or variable pay, or more charter schools, or vouchers.

Schrag: That’s not part of the conversation. I assume that the administration or the defendants in Hancock did raise those issues. I assume that a guy like Mitt Romney would want to raise those issues, and he should raise them. And you’re right about New York. They were in cahoots. Mike Rebell [of the Campaign for Fiscal Equity] is more and more acknowledging that. He never denied it, but it was always sort of sotto voce. They were in cahoots – they still are in cahoots – and those are issues that have to be dealt with. The politics of that are certainly difficult. In New York, they certainly made an effort. They got rid of those community [school] boards. Some of them were just patronage machines that were totally corrupt. The two school bureaucracies I really knew well were New York City and Boston, because I did a book on Boston’s schools a long, long time ago [Village School Downtown, 1967]. The kind of insularity of those systems was just horrendous. It was about jobs, it was about patronage. It was about taking care of your friends and relatives. It wasn’t about kids. The kids were just sort of the loss leaders. [In New York they have since] created a more centralized command-and-control structure that may be just as bad. I don’t know, I haven’t followed New York lately. But you’re absolutely right. How do you deal with those institutional issues? On the one side, you have people who simply say that vouchers will get rid of all those terrible systems. I don’t think they will. On the other hand, you have the rigid defenders [of schools as they are now]. I think that’s one of the questions that Democrats, in particular – and I am mostly a Democrat – have to answer for. They say they’re so concerned about kids, but when it comes to the crunch, they’ll go with the unions almost every time.

CommonWealth: At this point, we’re waiting for a ruling from the SJC in the Hancock case. The only inklings anyone has gotten about what the court is going to do came from the oral arguments. In contrast to Judge Botsford’s recommendation – which seemed to point toward a very expansive remedy that would involve both enormous new spending but also enormous new initiative and responsibility on the part of the state – the justices seemed concerned about not issuing a ruling they could not enforce. More than one justice raised the issue of a “quagmire,” often invoking the case in New Jersey as the kind of situation they want to avoid. In a sense, the SJC got off easy in 1993, when they could make a very sweeping ruling regarding funding and the adequacy issue, but then not tell the state anything other than “fix it.” And the legislators, they went out and did fix it.

Schrag: That’s right, the Legislature was willing and ready to do it.

CommonWealth: But now what do they do? The justices acknowledged that the state has done a great deal, and in fact Judge Botsford was more than willing to acknowledge the tremendous progress we’ve made in correcting disparities in funding, in setting standards and holding institutions accountable. Yet it’s not enough. So what can the SJC say now?

Schrag: That’s a good question. Their diffidence is certainly justified. This court is probably a little bit gun-shy anyway, after the gay marriage thing. But the other thing is, there’s a proportionality issue here. [If the SJC had reason to say], “This is horrible, the state’s education system is going down the tubes, kids aren’t learning, the gaps are enormous between the rich schools and the poor schools, we’ve got to do something drastic” – that would be one thing. But that’s not the case. The question is, how much of a political ruckus do we create in order to solve… a relatively small problem? I’m sure there are going to be lots of people – Norma Shapiro [president of Council for Fair School Finance] and other people – who will say, “You just don’t understand what the problem is,” and maybe I don’t. But looking at it from the national perspective, and unavoidably from the California perspective, I say: There is a problem, but I’ll trade your problem for my problem any day.