SACRAMENTO, CA - Although Governor Arnold Schwarzenegger's proposed budget increases education spending by nearly $3 billion, education interest groups are shooting for an even bigger share of the pie. One of their most controversial strategies is to bypass the legislative process and push for more spending through the courts.

Last year a state court approved a settlement of an educational equity lawsuit brought by the ACLU and other
groups. Under the settlement, the state will allocate up to $1 billion more for low-performing schools for instructional materials and facility assessment and repair. The ACLU suit may be a harbinger of things to come.

San Francisco Chronicle online-columnist Jennifer Nelson, writing in the January California Journal, reports that the
Association of California School Administrators and other education groups are discussing a lawsuit, patterned after a successful suit in New York, that would force the state to funnel more money to education. In the New York case, New York City schools are slated to receive $5.6 billion in additional operating funds and $9 billion in facility funding.

More and more states are embroiled in litigation over school financing. In January, the Kansas Supreme Court ordered that state's legislature to increase spending on education. State supreme courts in North Carolina and Montana have also ordered more spending. What is troubling about many of these court decisions is the use of amorphous yardsticks to measure how much more extra spending should be devoted to education.

In Kansas, the court said that enough money must be provided for students to receive a 'suitable'' education. In the New York case, the judges said that a state constitutional standard of "adequacy'' had to be met. Rigorously defining terms like "suitable'' and 'adequate'' is nearly impossible, a fact that even the New York plaintiffs acknowledged. And even if courts order more education spending, there is no guarantee that the extra dollars will raise student achievement.

For much of the 1980s and 1990s, a federal judge partially ran the Kansas City, Missouri school district and ordered the state to increase funding for the district. After billions in added spending, African-American student achievement had not improved nor had the black-white achievement gap. This result was no surprise. A major 1999 U.S. Department of Education-commissioned report concluded that "additional funding for education will not automatically and necessarily generate student achievement and in the past has not, in fact, generally led to higher achievement.''

It is possible for added spending to make a difference, but the dollars must be used in ways that actually affect student performance. California's Legislative Analyst's Office (LAO) notes that "Research and experience suggest that how we spend available education resources is at least as important as how much we spend on education.'' Yet it's hard to have much confidence in the positive impact of future court-ordered spending in California given the LAO's observation that most of the state's education programs are never evaluated, so there is no evidence of their success.

Whether education should receive more funding or not should be a decision for the people's elected representatives. It is they who have the responsibility to weigh the issues of the tax burden and competing demands. Allowing budgeting decisions to be made in the courts may benefit education interest groups
but it would defeat the democratic process.

Lance T. Izumi is Senior Fellow in Education Studies at the Pacific Research Institute. He can be reached via email at lizumi@pacificresearch.org.