Amicus Curiae Brief — Speaker of the Arizona House of Representatives v. Flores (Nos. 08-294, 08-289)

IN THE

Supreme Court of the Anited States

SPEAKER OF THE ARIZONA HOUSE

OF REPRESENTATIVES AND

PRESIDENT OF THE ARIZONA SENATE,

Petitioners,

U.

MIRIAM FLORES, ET AL..,

Respondents.

On Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

BRIEF OF EDUCATIONAL POLICY AND

FINANCE SCHOLARS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

JONATHAN L. MARCUS

Counsel of Record

GREGORY M. LIPPER

COVINGTON & BURLING LLP

1201 Pennsylvania Ave., N.W.

Washington, D.C. 20004

(202) 662-6000

March 2009 Counsel for Amici Curiae

i

TABLE OF CONTENTS

TARE GI FAN BI Sip esvcnsseccsccssersesocesacessessoes li

INTEREST OF AMICI CURIAE .........000... eee 1

SUMMARY OF ARGUMENT ................cccssesssereeeeesees 4

ET aecienisdnietnieinegisinciaversininndaviiinnaiinninimnnies 5

I.

If.

THE VIEW OF PETITIONERS’ SCHOLARS

DOES NOT REFLECT A “CONSENSUS,” AND

THE IMPORTANCE OF EDUCATIONAL

FUNDING IS DEMONSTRATED BY A

SUBSTANTIAL AND GROWING BODY OF

ee iaceerihitnniaenstinssuuinmvencienniaiinnndinmeenee 5

A. Research Demonstrates That Adequate

Funding Is Essential To Improving

ny I sssicnliinnpieueiunaue 6

B. No Child Left Behind Underscores The

Importance Of School Funding. .................... 12

THE ARGUMENT OF PETITIONERS’

SCHOLARS IS BASED ON RES" ARCH THAT

IS UNRELIABLE OR TAKEN OUT OF

I, int hceate ial a iia lalla iaalalaiestienatii 14

A. Petitioners’ Scholars Unduly Rely On The

Flawed Work Of Eric Hanushek................... 15

B. Petitioners’ Scholars Improperly Rely on a

Forthcoming, Unpublished Study, Which

They Refuse to Share With The

a ae ccaetion 19

C. Petitioners’ Scholars Incorrectly Claim

Support From The Work of Baker And

Markham, Both Of Whom Have Joined

, ARR XP RE Pe nee Dn 22

IR xctncerncdinydesbentiiundiiinbinaceains eanbonege 24

TABLE OF AUTHORITIES

Cases

Abbott v. Burke, 575 A.2d 359 (N.J. 1990) .............. 21

Abbott v. Burke, 710 A.2d 82 (N.J. 1998) ................ 20

Campaign for Fiscal Equality v. State,

GO1 N.B.2d SBS (N.Y. BOOS) .....ccevccceccccsccccsccescevces 18

Campbell County School District v. State,

907 P.2d 1238 (Wye. 1998) ..............ccccccscocssssveees 20

McDuffy v. Secretary of the Executive Office of

Education, 615 N.E.2d 516 (Mass. 1993) ........... 20

Montoy v. State, No. 99-C-1738, 2003 WL

22902963 (Kan. Dist. Ct. Dec. 2, 2003)............... 19

Opinion of the Justices,

OS Ere eee 19

State v. Campbell County School District, 19

a I III sn sinisniniidnicinsiibiohalrenineidebeonden 20

State v. Campbell County School District, 32

Bae NII: TEIENEIDY ‘cisenitincceinescemsecersnabninmeniiensiaieetuee 20

Other Authorities

Daniel Aaronson et al., Teachers and Student

Achievement in the Chicago Public High

Schools (Fed. Reserve Bank of Chi.,

Working Paper No. 2002-28, 2003),

available at http://www.chicagofed.org-

/publhications/workingpress/papers/wp2002-

SUNIL: css hapsiduclebedbaediaiadansedeadasousibieusennhdliabnmdaspnmanamaiad 6

ill

John Augenblick & John Meyers, Calculation

of the Cost of an Adequate Education in

Maryland in 1999-2000 Using Two

Different Analytic Approaches (2001),

available at http://www.schoolfunding.info

/states/md/MarylandAdequacyStudy.pdf.............. 9

Bruce D. Baker et al., Legal and Empirical

Analysis of State Financing of Programs for

Children with English Language

Communication Barriers (Spring 2004)

(unpulished manuscript), available at

http://web.ku.edu/~bdbaker/index_files/

TI i sccnicccrtncinithagmautilinhidibisiblehidesesieenmninnsete 10

Bruce D. Baker & Paul L. Markham, State

School Funding Policies and Limited

English Proficient Students,

26 Bilingual Res. J. 659 (2002)...............0...... 22, 23

Donald Boyd et al., The Preparation and

Recruitment of Teachers: A Labor-Market

Freamework, in A Qualified Teacher in

Every Classroom? Appraising Old Answers

and New Ideas 149 (Frederick M. Hess et

a as cael 7

David Card & Alan B. Krueger, Does School

Quality Matter? Returns to Education and

the Characteristics of Public Schools in the

United States, 100 J. Pol. Econ. 1 (1992) .............. 7

David Card & A. Abigail Payne, School

Finance Reform, The Distribution of School

Spending, and the Distribution of Student

Test Scores, 83 J. Pub. Econ. 49 (2002)............... 11

1V

Julie Berry Cullen & Randall Reback,

Tinkering Towards Accolades: School

Gaming Under a Performance

Accountability System, in Improving School

Accountability 1 (Timothy J. Gronberg &

Dennis W. Jansen eds., 2006)..................0006.

Linda Darling-Hammond, From “Separate But

Equal” to “No Child Left Behind”: The

Collision of New Standards and Old

Inequalities, in Many Children Left Behind 3

(Deborah Meier & George Wood eds., 2004)

Linda Darling-Hammond, New Standards and

Old Inequities: School Reform and the Edu-

cation of African-American Students,

69 J. Negro Educ. 263 (2000)....................008.

John Deke, A Study of the Impact of Public

School Spending on Postsecondary

Educational Attainment Using Statewide

School District Financing in Kansas,

22 Econ. Educ. Rev. 275 (2003) ....................

William Driscoll & Howard Fleeter, Projected

Costs of Implementing the Federal “No

Child Left Behind Act” in Cnio (Levin,

Driscoll, & Fleeter, Columbus, OH), 2008...

William D. Duncombe et al., Dollars Without

Sense: The Mismatch Between No Child

Left Behind Act Accountability and Title |

Funding, in Improving on No Child Left

Behind: Getting Education Reform Back on

Track 19 (Richard Kahlenberg ed., 2008) ....

osnatin 13

v

William Duncombe & John Yinger, How Much

More Does a Disadvantaged Student Cost?

24 Econ. Educ. Rev. 513 (2005) .................cceeeeeeeees 9

Ronald F. Ferguson, Paying for Public Education:

New Evidence on How and Why Money

Matters, 28 Harv. J. on Legis. 465 (1991)............. 8

Jeremy D. Finn et al., The Enduring Effects of

Small Classes, 103 Tchrs. C. Rec. 145 (2001)......... 8

Janie E. Funkhouser et al., A Research

Review: The Educational Uses of Time, 4

Stud. Educ. Reform (Pol’y Stud. Assocs.,

Inc., Washington, DC), 1996............cccccccccsssssoreesees i)

Maribeth Gettinger, Time Allocated and Time

Spent Relative to Time Needed for Learning

as Determinants of Achievement,

aif % US 0 ener 9

Margaret E. Goertz & Michael Weiss,

Assessing Success in School Finance

Litigation: The Case of New Jersey (Oct. 4,

2007) (unpublished manuscript), available

at http://devweb.tc.columbia.edu/manager

/symposium/Files/111_goertz_NJ_case_stu

Gy _Grale3O_ 10.06.07. BGE...ccccccecscsccccessscsescseeeses 11

Rob Greenwald et al., The Effect of School

Resources on Student Achievement,

66 Rev. Educ. Res. 361 (1996) ....................... 16, 17

vi

Jonathan Guryan, Does Money Matter?

Regression-Discontinuity Estimates from

Education Finance Reform in

Massachusetts (Nat’] Bureau of Econ.

Research, Working Paper No. 8269, 2001),

available at http://www.nber.org/papers/

Eric A. Hanushek, When School Finance

“Reform” May Not Be Good Policy,

28 Harv. J. on Legis. 423 (1991) ..................ccce 15

Eric A. Hanushek & Alfred A. Lindseth,

Schoolhouses, Courthouses and

Statehouses: Solving the Funding-

Achievement Puzzle in America’s Public

Schools (forthcoming May 2009)

Larry V. Hedges et al., Does Money Matter? A

Meta-Analysis of Studies of the Effects of

Differential School Inputs on Student

Outcomes, 23 Educ. Res. 5 (1994)............0000.cccc. 16

G. Alfred Hess, Jr., Understanding

Achievement (And Other) Changes Under

Chicago School Reform,

21 Educ. Eval. & Pol’y Analysis 67 (1999) ......... 10

Jennifer Imazeki, Assessing the Costs of K-12

Education in California's Public Schools,

3 Educ. Fin. & Pol’y 90 (2008).............................0. i)

Jennifer Imazeki & Andrew Reschovsky, Does

No Child Left Behind Place a Fiscal

Burden on States? Evidence From Texas,

1 Educ. & Fin. Pol'y 217 (2006)

vu

Richard D. Kahlenberg, Jntroduction to

Improving on No Child Left Behind:

Getting Education Reform Back on Track 1

(Richard Kahlenberg ed., 2008)...............0ccccccc00ee 12

Alan B. Krueger, Understanding the

Magnitude and Effect of Class Size on

Student Achievement, in The Class Size

Debate (Lawrence Mishel] & Richard

ES ee 16, 17, 18

Susanna Loeb & Marianne E. Page,

Examining the Link Between Teacher

Wages and Student Outcomes: The

Importance of Alternative Labor Market

Opportunities and Non-Pecuniary

Variation, 82 Rev. Econ. & Stat. 393 (2000)......... 8

William J. Mathis, The Cost of Implementing

the Federal No Child Left Behind Act:

Different Assumptions, Different Answers,

80 Peabody J. Educ. 90 (2005)...............ceceecee essen 12

Richard J. Murnane & Randall J. Olsen, The

Effects of Salaries and Opportunity Costs

on Length of Stay in Teaching: Evidence

from North Carolina,

25 J. Hum. Resources 106 (1990) .......0..00000.000ccccc. 7

National Center for Education Statistics, U.S.

Department of Education, NAEP Inclusion

Policy: Inclusion of Special-Needs Students,

http://nces.ed.gov/nationsreportcard/

about/inclusion.asp

Chet WHR TID. TG, BD ovcccccccscccsccoconcsccesscccess 2)

Vlil

National Center for Education Statistics, U.S.

Department of Education, The Nation‘s Re-

port Card: History of State Participation,

1990-1998, http://nces.ed.gov/nations

reportcard/about/statehistorypublic.asp

(last visited Mar. 24, 2009) .............ccc eee

National Center for Education Statistics, U.S.

Department of Education, NCES 2007-494,

The Nation’s Report Card: Mathematics

2007 (2007), available at http://nces.ed.gov/

nationsreportcard/pdf/main2007/

ES SETAE

National Center for Education Statistics, U.S.

Department of Education, NCES 2007-496,

The Nation's Report Card: Reading 2007

(2007), available ai http://nces.ed.gov/

nationsreportcard/pdf/main2007/

ee sitnieneiihdciicndaniiuneniidaictniinsbsapeinineics

Tom Parrish, A Cost Analysis of Alternative

Instructional Models for Limited English

Proficient Students in California,

19 J. Educ. Fin. 256 (1994)....0000.. cece.

Public Advocate of the City of New York &

Advocates for Children, Pushing Out At-

Risk Students: An Analysis of High-School

Discharge Figures (2002), available at

http://www.advocatesforchildren.org/pubs/

ETD ITA LLL LETRA

Michael A. Rebell, Poverty, “Meaningful”

Educational Opportunity, and the

Necessary Role of the Courts,

Fie OM Of _) ee eeeenee Ee

sinbees 2

ix

Steven G. Rivkin et al., Teachers, Schools and

Academic Achievement,

73 Econometrica 417 (2005) ...............ccccceeeeeeees

Jonah E. Rockoff, The Impact of Individual

Teachers on Student Achievement: Evidence

from Panel Data,

94 Am. Econ. Rev. 247 (2004) ....0....... ccc cece eeeees

George Wood, A View from the Field: NCLB’s

Effect on Classrooms and Schools, Many

Children Left Behind 33 (Deborah Meier &

George WEGG OGS., BODE) .........cccccccovsccccscsssscesees

1

INTEREST OF AMICI CURIAE

Amici are twenty-three prominent scholars and

researchers in education policy, finance, and econom-

ics.1 They submit this brief to advise the Court that

a brief filed by certain education-policy scholars in

support of Petitioners—which argues that sound

education policy focuses on measuring results, with-

out regard to resource inputs—does not represent a

consensus view. The Court should be aware both of

methodological limitations in the studies cited by Pe-

titioners’ scholars and of contrary empirical research

that goes unmentioned in their brief. More gener-

ally, amici submit this brief to stress that sustained

educational achievement depends not only on clear

goals and effective programs, but also on adequate

resources.

The brief is joined by the following experts:

Jamal Abedi is a Professor at the School of

Education at the University of California, Davis.

Bruce Baker is an Associate Professor at the

Graduate School of Education at Rutgers University.

William Duncombe is a Professor of Public

Administration at Syracuse University.

1 Each party has consented to the filing of this bref. Pursu-

ant to Supreme Court Rule 37.6, no counsel for a party au-

thored this brief in whole or in part, and no party or counsel for

a party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

amici or their counse! made a monetary contmbution to the

preparation or submission of this brief

2

Patricia Gandara is a Professor at the Gradu-

ate School of Education and Information Studies,

University of California, Los Angeles.

Margaret Goertz is a Professor at the Graduate

School of Education at the University of Pennsyl-

vania.

Claude Goldenberg is a Professor at the Stan-

ford University School of Education.

Jay Heubert is a Professor of Law and Educa-

tion at Teachers College, Columbia University.

Henry Levin is the William Heard Kilpatrick

Professor of Economics and Education at Teachers

College, Columbia University and the David Jacks

Professor Emeritus of Higher Education and Eco-

nomics at the Stanford University School of Educa-

tion.

George Madaus is the Boisi Professor of Educa-

tion and Public Policy, Emeritus at Boston College.

Paul Markham is an Associate Professor at the

University of Kansas School of Education.

Linda McSpadden McNeil is a Professor of

Education at Rice University.

Martha Minow is the Jeremiah Smith, Jr. Pro-

fessor at Harvard Law School and a Lecturer at the

Harvard Graduate School of Education.

Gary Orfield is a Professor of Law, Urban

Planning, Political Science, and Education at the

3

Graduate Scho § -f Education & Information Stud-

ies, University ». _ alifornia, Los Angeles.

Michael A. Rebell is a Professor of Law and

Educational Practice at Teachers College, Columbia

University.

Robert Rueda is a Professor of Education at the

University of Southern California.

Russell W. Rumberger is a Professor of Educa-

tion at the University of California, Santa Barbara.

Carola Suarez-Orozco is a Professor of Applied

Psychology at New York University, Steinhardt

School of Culture, Education, and Human Develop-

ment.

Marcelo M. Suarez-Orozco is the Courtney

Sale Ross University Professor of Globalization and

Education at New York University.

Gail Sunderman is the Director of the Mid-

Atlantic Equity Center at George Washington Uni-

versity.

Angela Valenzuela is an Associate Professor at

the College of Education at the University of Texas,

Austin.

Amy Stuart Wells is a Professor of Sociology

and Education at Teachers College, Columbia Uni-

versity.

4

Kevin Welner is an Associate Professor at the

University of Colorado at Boulder School of Educa-

tion.

John Yinger is the Trustee Professor of Public

Administration and Economics at Syracuse Univer-

sity.

SUMMARY OF ARGUMENT

Petitioners’ amici scholars assert that courts

should not order states to increase educational fund-

ing and contend (p.5) that their position reflects “the

consensus view of education-policy experts.” The

educational literature does not support their claim.

First, a growing body of empirical research con-

firms that adequate funding is integral to student

achievement, and that funding increases—including

increases ordered by courts—have led to substantial

improvements in student performance. The federal

No Child Left Behind Act (“NCLB”) underscores the

importance of adequate funding for education. In

many states, meeting the new standards will require

significant funding increases; attempting to meet the

standards without funding increases may actually

cause students harm.

Second, the research relied upon by Petitioners’

scholars is either methodologically suspect or taken

out of context. Most of the sources are authored or

edited by Eric A. Hanushek, whose methodology and

conclusions have been routinely criticized by both

other scholars and the courts. The principal source

relied upon is neither published nor public, vet Peti-

5

tioners’ amici will not share the manuscript with the

undersigned amici. Petitioners’ amici also misplace

reliance on the research of two additional authors,

who have joined this brief in support of Respondents.

ARGUMENT

I. THE VIEWS OF PETITIONERS’ SCHOL-

ARS DO NOT REFLECT A “CONSEN-

SUS,” AND THE IMPORTANCE OF

EDUCATIONAL FUNDING IS DEMON-

STRATED BY A SUBSTANTIAL AND

GROWING BODY OF RESEARCH.

Petitioners’ scholars argue (p.7) that “[t]here is

scant evidence that past judicial actions concerning

school finance have had any beneficial effect on stu-

dent performance.” Although they do not purport to

be familiar with the facts of this case, Petitioners’

scholars predict (p.4) that the court-ordered funding

in this case “is destined to fail.”

The argument of Petitioners’ scholars does not

reflect “the consensus view,” as they claim (p.5). In

fact, the view of Petitioners’ scholars is contradicted

by a significant and growing body of empirical re-

search. This research recognizes that, although

funding alone will not guarantee students’ success,

inadequate funding ensures their failure.

6

A. Research Demonstrates That Ade-

quate Funding Is Essential To Im-

proving Student Performance.

Although we do not suggest that money alone

will improve children’s education, even the best de-

signed and executed programs require sufficient re-

sources. An overwhelming body of research

illustrates that adequate funding is necessary to stu-

dent achievement and that increasing funding im-

proves student performance.

1. There is little dispute that programs and polli-

cies that improve student outcomes require adequate

resources to execute. Even the most rigorous stan-

dards will not improve performance unless supported

by the resources necessary to meet those standards.

See Linda Darling-Hammond, New Standards and

Old Inequities: School Reform and the Education of

African-American Students, 69 J. Negro Educ. 263,

264 (2000) (“[S]tandards and tests alone will not im-

prove schools or create educational opportunities

where they do not now exist.”).

Perhaps most importantly, more resources lead

to better teachers, which in turn lead to better stu-

dent performance. Economists have long docu-

mented that high-quality teachers are essential to

student achievement. See, e.g., Jonah E. Rockoff,

The Impact of Individual Teachers on Student

Achievement: Evidence from Panel Data, 94 Am.

Econ. Rev. 247, 247-48 (2004); Daniel Aaronson et

al., Teachers and Student Achievement in the Chi-

cago Public High Schools 1-2 (Fed. Reserve Bank of

Chi., Working Paper No. 2002-28, 2003), available at

7

http://www.chicagofed.org/publications/workingpress/

papers/wp2002-28.pdf. Even Petitioners’ scholars

recognize that good teachers “matter importantly for

student achievement.” Steven G. Rivkin et al.,

Teachers, Schools and Academic Achievement, 73

Econometrica 417, 449 (2005).

An array of research demonstrates that in-

creased funding leads to better teachers and better

outcomes for students:

* There is a statistically significant link between

teachers’ salaries and students’ future earnings.

See David Card & Alan B. Krueger, Does Schooi

Quality Matter? Returns to Education and the

Characteristics of Public Schools in the United

States, 100 J. Pol. Econ. 1, 3 (1992).

* Higher salaries lead teachers to stay in the pro-

fession longer. See Donald Boyd et al., The

Preparation and Recruitment of Teachers: A La-

bor-Market Framework, in A Qualified Teacher In

Every Classroom? Appraising Old Answers and

New Ideas 14%. 158 (Frederick M. Hess et al. eds.,

2004); Richard J. Murnane & Randall J. Olsen,

The Effects of Salaries and Opportunity Costs on

Length of Stay in Teaching: Evidence from North

Carolina, 25 J. Hum. Resources 106, 106—07

(1990).

* Economists have concluded that “raising the

wages of teachers by 50% will reduce high-school

dropout rates by more than 15% and increase col-

lege enrollment rates by approximately 8%.”

Susanna Loeb & Marianne E. Page, Examining

8

the Link Between Teacher Wages and Student

Outcomes: The Importance of Alternative Labor

Market Opportunities and Non-Pecuniary Varia-

tion, 82 Rev. Econ. & Stat. 393, 393 (2000).

Higher salaries are especially critical to attracting

teachers to poorer districts, given that most teachers

“prefer higher-socioeconomic-status districts.”

Ronald F. Ferguson, Paying for Public Education:

New Evidence on How and Why Money Matters, 28

Harv. J. on Legis. 465, 466 (1991). In this case, the

Nogales district “cannot afford to pay market rate

salaries” for qualified English Language Learner

(ELL) teachers. Pet. App. 66a. As a result, the dis-

trict must use long-term substitutes or instructors

with “emergency” certification. Pet. App. 36a.

Other inputs also demonstrably improve student

performance. For instance, smaller class sizes in

elementary schools produce long-term improvements

in student learning. ee, e.g., Jeremy D. Finn et al.,

The Enduring Effects of Small Classes, 103 Tchrs. C.

Rec. 145, 174 (2001) (extensive controlled longitudi-

nal study of over 6,300 students in 325 classes in 79

schools demonstrated that students in smaller

classes had statistically significant differences in

achievement and that differences endured over many

years). But without adequate resources, smaller

classes come at the expense of teacher quality.

Similarly, longer school days and school years

improve student performance. See, e.g., Maribeth

Gettinger, Time Allocated and Time Spent Relative

to Time Needed for Learning as Determinants of

Achievement, 77 J. Educ. Psychol. 3, 4 (1985). Yet the

9

cost of extending the school day and school year is

one of the primary reasons that more districts have

not done so. See Janie E. Funkhouser et al., A Re-

search Review: The Educational Uses of Time, 4

Stud. Educ. Reform (Pol’y Stud. Assocs., Inc.,

Washington, DC), 1995, at 7.

The education of ELL students requires even

more resources than does the education of students

who are proficient in English. See, e.g., Jennifer

Imazeki, Assessing the Costs of K-12 Education in

California’s Public Schools, 3 Educ. Fin. & Pol’y 90,

100 (2008) (74 percent more resources); William

Duncombe & John Yinger, How Much More Does a

Disadvantaged Student Cost?, 24 Econ. Educ. Rev.

513, 523 (2005) (101 to 142 percent more resources);

John Augenblick & John Meyers, Calculation of The

Cost of An Adequate Education in Maryland in 1999-

2000 Using Two Different Analytic Approaches 17-18

(2001), available at http://www.schoolfunding.info-

/states/md/MarylandAdequacyStudy.pdf (double the

resources). Among other things, ELL students re-

quire additional teacher time and language aides.

See Tom Parrish, A Cost Analysis of Alternative In-

structional Models for Limited English Proficient

Students in California, 19 J. Educ. Fin. 256, 263

(1994).

For example, in a recent study “panels of educa-

tion experts . . . consistently indicate[d] that elemen-

tary and secondary level [ELL] children require

additional personnel at rates of approximately 20

[ELL] children per full time teacher with 1 or more

instructional aides per teacher.” Bruce D. Baker et

al., Legal and Empirical Analysis of State Financing

10

of Programs for Children with English Language

Communication Barriers 12 (Spring 2004) (unpub-

lished manuscript), available at http://web.ku.edu/-

~bdbaker/index_files/pageO002.htm. In this case, the

Nogales superintendent considers additional tutors

and teacher aides to be “essential,” yet Nogales can-

not afford them. J.A. 225.

2. Unsurprisingly, then, research demonstrates

that increases in school funding improve student per-

formance. See, e.g., Jonathan Guryan, Does Money

Matter? Regression-Discontinuity Estimates from

Education Finance Reform in Massachusetts 21

(Nat'l Bureau of Econ. Research, Working Paper No.

826921, 2001), http://www.nber.org/papers/w8269

(increases in per-pupil spending led to significant in-

creases in math, reading, science, and social studies

test scores for 4th-grade students).?

For instance, a 2002 peer-reviewed study in the

Journal of Public Economics measured the impact of

court-ordered funding increases in twelve states dur-

ing the 1980s. The study pooled samples of 100,000

2 See also, e.g., John Deke, A Study of the Impact of Public

School Spending on Postsecondary Educational Attainment Us-

ing Statewide School District Financing in Kansas, 22 Econ.

Educ. Rev. 275, 276 (2003) (regression analysis demonstrates

that spending increases significantly increased probability of

students obtaining postsecondary education); G. Alfred Hess,

Jr., Understanding Achievement (And Other) Changes Under

Chicago School Reform, 21 Educ. Eval. & Pol'y Analysis 67, 78

(1999) (successful principals unanimous in their opinion that

adequate funding made their improvement planning “meaning-

ful,” by allowing “resources to be put behind program deci-

sions’).

11

individual SAT scores drawn from the 48 contiguous

states for each year from 1978 to 1992. Comparing

the states under court orders with those that were

not, the study concluded that court-ordered funding

for underperforming districts had “an equalizing ef-

fect ... on the test score outcomes for children from

different family background groups” and “closed the

gap in average SAT scores between children of

highly-educated and poorly-educated parents by ...

roughly 5 percent.” David Card & A. Abigail Payne,

School Finance Reform, The Distribution of School

Spending, and the Distribution of Student Test

Scores, 83 J. Pub. Econ. 49, 67, 80 (2002).

A 2007 study highlighted similar gains following

court-ordered funding increases in New Jersey. The

study analyzed the state’s official education assess-

ments and the U.S. Department of Education’s Na-

tional Center for Education Statistics, which

compared urban students, most of whom were cov-

ered by the court decree, and other categories of stu-

dents in the state. This analysis demonstrated that

funding increases ordered in 1998 for the urban stu-

dents significantly improved their performance from

1999 to 2005. As a result of the court-ordered fund-

ing, “there was significant closure in the achieve-

ment gap between the [subject] districts and the rest

of the state.” Margaret E. Goertz & Michael] Weiss,

Assessing Success in School Finance Litigation: The

Case of New Jersey (Nov. 12, 2007) (unpublished

manuscript), available at http//devweb.tc.columbia.edu/man-

ager/symposium/Files/111_goertz_NJ_case_study_draft®20_10.

04.07_.pdf.

12

B. No Child Left Behind Underscores

The Importance Of School Funding.

Although Petitioners’ scholars acknowledge

(p.17) that “States and localities may need more

money to meet NCLB’s standards,” they argue that

NCLB signals that courts should not “measure how

much money States spend.” Far from downplaying

the importance of adequate inputs, however, NCLB

underscores the importance of ensuring that states

provide schools with adequate resources.

No Child Left Behind has not obviated the need

to ensure that schools are adequately funded. The

theory underlying NCLB was “greater funding in ex-

change for stricter accountability for results.”

Richard D. Kahlenberg, Jntroduction to Improving on

No Child Left Behind: Getting Education Reform

Back on Track 1, 5 (Richard Kahlenberg ed., 2008)

(emphasis added). Experts recognize that states

cannot meet NCLB standards without resources.

See, e.g., William J. Mathis, The Cost of Implement-

ing the Federal No Child Left Behind Act: Different

Assumptions, Different Answers, 80 Peabody J. Educ.

90, 105 (2005). Research, including research com-

missioned by states, underscores that meeting NCLB

standards will require significant increases in fund-

ing. See, e.g., Jennifer Imazeki & Andrew Re-

schovsky, Does No Child Left Behind Place a Fiscal

Burden on States? Evidence From Texas, 1 Educ. &

Fin. Pol’y 217, 238 (2006) (Texas must spend be-

tween $1.4 billion and $4 billion to meet standards

imposed by NCLB); William Driscoll & Howard

Fleeter, Projected Costs of Implementing the Federal

“No Child Left Behind Act” in Ohio (Levin, Driscoll,

13

& Fleeter, Columbus, OH), 2003, at 60 (study pre-

pared for the Ohio Department of Education esti-

mates that NCLB will lead to additional annual costs

of $1.4 billion).

When states try to meet NCLB standards with-

out the necessary increases in funding, they create

perverse incentives for schools and harm to students.

Inadequate resources create incentives to refuse ad-

mittance to students with low test scores or special

needs for fear of lowering the school’s overall scores

and stretching its resources further. See, e.g., Julie

Berry Cullen & Randall Reback, Tinkering Towards

Accolades: School Gaming Under a Performance Ac-

countability System, in Improving School Account-

ability 1, 2-3 (Timothy J. Gronberg & Dennis W.

Jansen eds., 2006); Pub. Advocate of the City of New

York & Advocates for Children, Pushing Out At-Risk

Students: An Analysis of High-School Discharge Fig-

ures 6 (2002). The incentive to refuse admittance is

particularly detrimental to non-English speaking

students, who generally require more services. See

Linda Darling-Hammond, From “Separate But

Equal” to “No Child Left Behind”: The Collision of

New Standards and Old Inequalities, in Many Chil-

dren Left Behind 3, 14 (Deborah Meier & George

Wood eds., 2004); George Wood, A View from the

Field: NCLB’s Effect on Classrooms and Schools, in

Many Children Left Behind, supra, at 33, 47.

Demanding outputs without sufficient inputs

also encourages shortcuts and generally deflates

teacher morale and student performance. Scholars

observe that “[w]hen the expectations in an account-

ability system are so unreasonable, they undermine

14

morale, encourage cheating, and are generally not

effective.” William D. Duncombe et al., Dollars

Without Sense: The Mismatch Between No Child Left

Behind Act Accountability and Title I Funding, in

Improving on No Child Left Behind, supra, at 19, 72—

73.

On the other hand, Petitioners’ scholars cite no

evidence to support their supposition (p.10) that in-

creased funding will encourage school districts to

“keep ELL students languishing in the program and

segregated from other students to ensure that fund-

ing for ELL programming does not diminish or dis-

appear.” If anything, it is inadequate funding that

leaves students languishing. In the underfunded

Nogales district, for instance, the average student

needed four to five years to become proficient, over

twice as long as contemplated by the Arizona legisla-

ture. Pet. App. 108a.

Il. THE ARGUMENT OF PETITIONERS’

SCHOLARS IS BASED ON RESEARCH

THAT IS UNRELIABLE OR TAKEN OUT

OF CONTEXT.

The brief of Petitioners’ scholars is only as good

as the scholarship on which it relies. Yet the schol-

arship on which their brief depends either suffers

from serious methodological flaws or is taken out of

context.

First, Petitioners’ amici rely overwhelmingly on a

single writer, Eric A. Hanushek, whose research has

been called into question by both commentators and

courts. Among other criticisms, Hanushek’s scholar-

15

ship has been “widely challenged as being simplistic

and misleading.” Michael A. Rebell, Poverty, “Mean-

ingful” Educational Opportunity, and the Necessary

Role of the Courts, 85 N.C. L. Rev. 1467, 1480 (2007).

Second, Petitioners’ amici rely heavily on a Ha-

nushek-authored study that is not yet public—and

which Petitioners’ amici have refused to share with

the undersigned amici.

Third, Petitioners’ amici misplace reliance on the

research by authors other than Hanushek. Indeed,

two of the authors on which Petitioners’ scholars rely

have joined this amicus brief in support of Respon-

dents.

A. Petitioners’ Scholars Unduly Rely

On The Flawed Work Of Eric

Hanushek.

Of the eight secondary authorities cited by Peti-

tioners’ scholars, five have been edited or co-

authored by Eric A. Hanushek, a signatory to the

brief. Hanushek has long maintained: “There is no

systematic relationship between school expenditures

and student performance.” Eric A. Hanushek, When

School Finance “Reform” May Not Be Good Policy, 28

Harv. J. on Legis. 423, 425 (1991). But Hanushek’s

position contradicts the most rigorous empirical re-

search.

1. Hanushek bases his conclusions on unreliable

syntheses of prior studies. His results “depend cru-

cially on the peculiar way in which he combines the

many studies in the literature.” Alan B. Krueger,

16

Understanding the Magnitude and Effect of Class

Size on Student Achievement, in The Class Size De-

bate 7, 8 (Lawrence Mishel & Richard Rothstein eds.,

2002) (emphasis added). His method of synthesis—

which scholars describe as “vote counting’—is

“known to be a rather insensitive procedure for

summarizing results” and “is now rarely used in ar-

eas of empirical research where sophisticated syn-

theses of research are expected.” Rob Greenwald et

al., The Effect of School Resources on Student

Achievement, 66 Rev. Educ. Res. 361, 362 (1996).

The weakness of Hanushek’s methodology is pro-

found: as the number of studies to be synthesized in-

creases, the “probability that a vote count will

correctly detect an effect that is present in every

study tends to zero.” Larry V. Hedges et al., Does

Money Matter? A Meta-Analysis of Studies of the Ef.-

fects of Differential School Inputs on Student Out-

comes, 23 Educ. Res. 5, 13 (1994).

After scrutinizing his work, other economists

have concluded that Hanushek’s data “support ex-

actly the opposite conclusion.” Jd. at 5.

First, scholars from the University of Chicago

have performed meta-analyses of the studies that

Hanushek reviewed as well as of additional studies

that Hanushek did not consider. After correcting the

methodological errors that affected Hanushek’s

analysis, the authors found that “the data he as-

sessed on the relations between school resource in-

puts and student outcomes, including achievement,

were substantially more consistent and positive than

{Hanushek] believed.” Greenwald, supra, at 362.

This rigorous review of Hanushek’s data concluded

17

that “money is positively related to student achieve-

ment.” Jd. at 385.

Second, Princeton University economist Alan

Krueger analyzed the literature reviews used by Ha-

nushek to support his conclusion that increased re-

sources, including smaller class sizes, do not improve

student performance. According to Krueger, “Ha-

nushek’s pessimistic conclusion about the [effective-

ness of increasing inputs] results in part from the

fact that he inadvertently places disproportionate

weight on studies that are based on smaller sam-

ples.” Krueger, supra, at 8.3 As a result, “Ha-

nushek’s selection criteria have the effect of biasing

his representation of the literature toward finding

zero or negative effect of class size on performance.”

Id. at 16. When this anomaly is corrected, and when

“the various studies in Hanushek’s sample are ac-

corded equal weight, class size is systematically re-

lated to student performance.” Id. at 9 (emphasis in

original).

* Specifically, Hanushek “uses a selection rule that would

take more estimates from studies that analyzed subsamples of

a larger dataset than from studies that used the full sample of a

larger dataset.” Jd. at 8-9. For example, “if one study analyzed

a pooled sample of third through sixth graders, it would gener-

ate a single estimate, whereas if another study using the same

data analyzed separate subsamples of third graders, fourth

graders, fifth graders, and sixth graders, that study would gen-

erate four estimates.” Jd. at $ (emphasis in original). More-

over, “if the study further estimated separate regressions for

math and reading scores for each subsample, as opposed to ~he

average test score, it would yield 24 estimates.” Jd. Ultimately,

“the lion’s share of Hanushek’s 277 estimates were extracted

from a small minority of the 59 studies.” /d.

18

The same flaws compromise Hanushek’s re-

search about the effect of resources more generally.

“As with his class size studies, Hanushek [in his re-

sources-based studies} extracted more estimates

from studies that tended to find insignificant or

negative effects of expenditures per student and

fewer from studies that found positive effects.” Jd. at

21. If a proper methodology is employed, “the oppo-

site conclusion is more accurate: unless one weighs

the studies of schoo] resources in peculiar ways, the

average study tends to find that more resources are

associated with greater student achievement.” /d.

(first emphasis added).

2. Courts too have identified serious flaws in

Hanushek’s work. For years, Hanushek has testified

as a defense witness in school-funding lawsuits in

state courts. See, e.g., Campaign for Fiscal Equal. v.

State, 801 N.E.2d 326, 334-35 (N.Y. 2003) (Ha-

nushek’s testimony “failed to rebut” the conclusion

that “smaller class sizes in the earliest grades corre-

late with better test results during those years and

afterwards.”). Of the eleven cases in which he has

testified, Hanushek has been on the losing side in

nine of them. See Rebel]. supra, at 1485 n.82.

Courts have identified serious limitations in Ha-

nushek’s research. In one case, the court observed

that Hanushek reviewed student achievement in

only a single year rather than over time; controlled

insufficiently for “variables that could affect student

scores|,| such as race, socio-economic status, and pa-

rental education”; and included in his calculations

spending on ancillary items such as “maintenance,

school lunch, and transportation.” Opinion of the

19

Justices, 624 So. 2d 107, 140 (Ala. 1993). Even with

these flaws, when Hanushek’s data were reanalyzed

“using actual rather than average test scores, [there

was] a statistically significant positive correlation be-

tween expenditures and achievement.” Jd. at 140

n.34 (emphasis added).

When pressed, Hanushek himself acknowledges

the importance of school funding. In one case, Ha-

nushek “was billed as the expert who would demon-

strate that ‘money doesn’t matter.” Montoy v. State,

No. 99-C-1738, 2003 WL 22902963, at *49. (Kan.

Dist. Ct. Dec. 2, 2003). But Hanushek ultimately ac-

knowledged that “money spent wisely, logically, and

with accountability would be very useful indeed.” Jd.

He further agreed: “Only a fool would say money

doesn’t matter.” Id.

B. Petitioners’ Scholars Improperly

Rely on a Forthcoming, Unpub-

lished Study, Which They Refuse to

Share With The Undersigned Amici.

The work most frequently cited by Petitioners’

scholars is Eric A. Hanushek & Alfred A. Lindseth,

Schoolhouses, Courthouses and Statehouses: Solving

the Funding-Achievement Puzzle in America’s Public

Schools (forthcoming May 2009). In this study,

which Petitioners’ scholars cite ten times, Hanushek

and his coauthor purport (pp.7—8) to have “examined

the performance of students in four States-—

Kentucky, Massachusetts, New Jersey, and Wyo-

ming—that experienced extraordinary funding in-

creases as a result of court-ordered remedies.” They

assert (p.8) that “relative to the rest of the Nation,

20

the results in three of the four States were ‘largely

disappointing.”

This work is not publicly available. Petitioners’

amici have not placed this unpublished work on file

with the Clerk of this Court or with the Court’s li-

brary. Yet counsel for Petitioners’ amici informed

the undersigned that Hanushek would not authorize

the draft to be shared with Respondents’ amici.

Without access to Hanushek’s unpublished work,

it is impossible for amici or the Court to evaluate

Hanushek’s empirical claims. What little we do

know, however, suggests that this forthcoming

analysis suffers from methodological flaws and in

any event does not support its authors’ conclusions.

The unpublished study apparently focuses on state-

wide scores on the National Assessment of Educa-

tional Progress (“NAEP”) over a period of fifteen

years, from 1992-2007, the latest year for which

NAEP scores are available. If the study does so, it

faces the following methodological limitations:

* The major state court funding decisions in three

of the four states (Massachusetts, New Jersey

and Wyoming) were not issued and fully imple-

mented until after 1992. See State v. Campbell

County Sch. Dist., 32 P.3d 325 (Wyo. 2001); State

v. Campbell County Sch. Dist., 19 P.3d 518 (Wyo.

2001); Abbott v. Burke, 710 A.2d 82 (N.J. 1998);

Campbell County Sch. Dist. v. State, 907 P.2d

1238 (Wyo. 1995); McDuffy v. Sec’y of the Exec.

Office of Educ., 615 N.E.2d 516 (Mass. 1993).

21

* NAEP data for eighth-grade reading scores does

not go back to 1992. See Nat'l Ctr. for Educ. Sta-

tistics, U.S. Dep’t of Educ., The Nation‘’s Report

Card: History of State Participation, 1990-1998,

http://nces.ed.gov/nationsreportcard/about/statehi

storypublic.asp (last visited Mar. 24, 2009).

* Some states did not participate in the NAEP test-

ing until they were required to do so by NCLB in

2003. See id.

* NAEP changed its rules regarding inclusion and

accommodations in 1996, and readers are cau-

tioned about making long-term trend comparisons

before and after that date. See Nat'l Ctr. for

Educ. Statistics, U.S. Dep’t of Educ., NAEP Inclu-

sion Policy: Inclusion of Special-Needs Students,

http://nces.ed.gov/nationsreportcard/about/inclusi

on.asp (last visited Mar. 24, 2009).

* Not all students in New Jersey received funding

under the New Jersey court decree. See Abbott v.

Burke, 575 A.2d 359, 384—86 (N.J. 1990).

Even putting those limitations aside, Hanushek’s

conclusion is suspect. According to NAEP results for

the four states in question during the years for which

complete data is available, students in the four stud-

ied states exceeded the average national perform-

ance, and the average national rates of progress, in

three-quarters of the categories measured. See Nat'l

Ctr. for Educ. Statistics, U.S. Dep't of Educ., NCES

2007-496, The Nation’s Report Card: Reading 2007

17 tbl. 6, 35 tbl. 11 £42(2007), available at

http://nces.ed.gov/nationsreportcard/pdf/main2007/20

22

07496.pdf; Nat'l Ctr. for Educ. Statistics, U.S. Dep’t

of Educ., NCES 2007-494, The Nation’s Report Card:

Mathematics 2007 16 tbl. 6, 33 tbl. 11 (2007), avail-

able at _ http://nces.ed.gov/nationsreportcard/pdf-

/main2007/2007494.pdf.

C. Petitioners’ Scholars Incorrectly

Claim Support From The Work of

Baker And Markham, Both Of

Whom Have Joined This Brief.

One of the few non-Hanushek sources cited by

Petitioners’ scholars is Bruce D. Baker & Paul L.

Markham, State School Funding Policies and Lim-

ited English Proficient Students, 26 Bilingual Res. J.

659 (2002). In citing this work for the proposition

that schools will not spend money efficiently or effec-

tively, Petitioners’ scholars take the authors’ analy-

sis out of context. These authors, Bruce D. Baker

and Paul L. Markham, have joined this brief in sup-

port of Respondents.

Baker and Markham criticize as irrational not

the use of education funding, but the method by

which it is allocated: many states, including states

with sizable non-English-speaking populations, were

providing insufficient funding for districts to meet

the programming costs and needs of ELL students.

Petitioners’ scholars quote (p.9) the article’s state-

ments that “state efforts to help local districts pro-

vide adequate programming opportunities for [ELL]

are often poorly conceived or applied” and that “fund.

ing policies that are neither rational nor equitable”

will not improve student performance. Jd. at 678.

According to Baker and Markham, certain funding

23

policies were irrational because they “fail[ed] to sys-

tematically allocate more aid for [ELL] children to

districts where more [ELL] children reside” and oth-

ers allocated more aid “to higher income districts

with higher core expenditures per pupil that were

less dependent on state aid in general.” Jd. at 674—

75.

Thus, far from concluding that additional fund-

ing is unnecessary, Baker and Markham stress the

opposite: If state aid to ELL students is provided “at

levels insufficient to provide for services in fuli, those

districts with the largest numbers of [ELL] pupils

will have the greatest difficulty in finding the re-

sources to provide adequate opportunities.” Id. at

662-63 (emphasis added).

24

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

JONATHAN L. MARCUS

Counsel of Record

GREGORY M. LIPPER

COVINGTON & BURLING LLP

1201 Pennsylvania Ave, NW

Washington, D.C. 20004

(202) 662-6000

March 25, 2009 Counsel for Amici Curiae