State Sen. Mary Boren has filed legislation to alter language in the Oklahoma Constitution that currently requires “a system of free public schools” so it instead requires maintenance of “an efficient and equitable system of free public schools.”

Experts warn that seemingly simple word change could open a floodgate of litigation that, in other states, has placed judges in control of school finances and created unfunded mandates that force tax increases or reduced spending elsewhere.

“I would suggest to run, not walk, away from those proposals,” said Dave Trabert, chief executive officer of the Kansas Policy Institute.

“Get ready,” said Joshua Dunn, chair of the Department of Political Science at the University of Colorado Colorado Springs. “It’s a ‘lawyers’ full-employment act.’”

Boren said her Senate Joint Resolution 9, which would require a vote of citizens to amend the Oklahoma Constitution, would raise educational standards.

“I’ve filed SJR 9 to solidify in our constitution the highest standard of public schools for our families and future Oklahomans,” said Boren, D-Norman. “By adding the words ‘efficient and equitable’ to the constitution, the standards are elevated to ensure equitable state funding of all schools in every zip code. For too long, the Legislature has ignored the financial needs of our state’s public schools to the detriment of Oklahoma’s students, especially those living in areas with lower property values. Since 1990 when the historic education reforms and funding increases in HB 1017 were enacted, special interests have succeeded in shifting the state burden to local taxpayers, which has defunded public schools in many communities, and eroded the equity in our schools.”

Oklahoma’s school-funding formula currently directs more state funding to schools with lower local property tax values to offset inequities. And officials warn the results of lawsuits generated by constitutional “equity” arguments in other states have not lived up to the promises made by supporters. In some cases, those lawsuits have had significant, negative repercussions.

Dunn, whose research focus includes education litigation across the nation, said the proposed constitutional change would produce “lots” of lawsuits and “invite judges and lawyers to find all sorts of things in it to no real educational effect.”

“You spend years and years and who knows how much money on this litigation, and the results are woeful, even if they do end up generating more spending,” Dunn said.

Trabert said Kansas has been involved in school-funding litigation for most of the last 20 years, and New Jersey school-funding issues have been tied up in courts even longer.

In 2005, Kansas courts ordered state lawmakers to increase public-school funding by $800 million more per year. A lawsuit filed in 2010 resulted in a court order to increase spending by another $1 billion annually.

Even as the court ordered those spending increases, there was nothing that required schools to put the money into classroom spending, Trabert said. And, when courts order massive increases in school funding, they are indirectly ordering that lawmakers spend less on other needs, such as roads, public safety, and health, he said.

“The only way to do this is you’re going to raise taxes or you’re going to take money away from everyone else,” Trabert said,

Despite massive increases in Kansas school spending over the past two decades, the Kansas Policy Institute notes reading proficiency is “lower than in 1998,” based on National Assessment of Educational Progress (NAEP) results in the fourth and eighth grades.

The slight decline in reading proficiency occurred even though Kansas’ per-pupil spending was 40 percent higher in 2019 than it would have been had spending only been adjusted for inflation since 1998.

The results in Kansas are not dissimilar from national trends.

Research released in 2019 found that the “achievement gap” in educational attainment between students from higher and lower socioeconomic backgrounds had not changed over the past 50 years, even though inflation-adjusted spending per student quadrupled during that time.

One author of that study on socio-economic status (SES) achievement gaps—Eric Hanushek, a senior fellow at the Hoover Institution—called its findings “disheartening.”

“Since 1980, we have disbursed some $500 billion to local schools so that they could provide extra educational services for poor children,” Hanushek said in a 2019 interview. “We have likewise spent some $250 billion dollars on Head Start, the federal preschool program for three- and four-year-olds. Moreover, states have spent much more money on schools and partly because of school-finance court cases have aimed extra funding toward poor districts. None of these very large policies has yet to dent the SES achievement gaps.”

Dunn said Kansas and New Jersey represent some of the most extreme outcomes from school-finance litigation but warned that adding new language to Oklahoma Constitution’s would run the risk of similar chaos.

“I don’t know that all states follow the Kansas model, but it’s always a risk,” Dunn said. “Once you get that first decision from the state supreme court, you’re going to risk more litigation until the composition of the Supreme Court changes and they tell everyone to stop.”

One reason “equitable” funding language has created uncertainty in other states is that there is no consistent standard that may be applied, providing individual judges wide discretion, Trabert noted.

“This is all subjective,” Trabert said. “It’s like spending on anything else, whether it’s highways, social services, prisons. It’s a subjective decision that should be left to the legislature.”

In contrast, Oklahoma courts have interpreted the state’s existing constitutional language as leaving school-funding decisions up to voters through the political process.

In a 2006 lawsuit, the Oklahoma Education Association (OEA) and a handful of school districts asked state courts to order a $1 billion increase in annual state appropriations and $3 billion in new funding for undefined infrastructure costs.

The Oklahoma Supreme Court ultimately rejected the OEA’s arguments, ruling, “The plaintiffs are attempting to circumvent the legislative process by having this Court interfere with and control the Legislature's domain of making fiscal-policy decisions and of setting educational policy by imposing mandates on the Legislature and by continuing to monitor and oversee the Legislature. To do as the plaintiffs ask would require this Court to invade the Legislature’s power to determine policy. This we are constitutionally prohibited from doing.”

Court-ordered increases in school funding have not only failed to generate consistent academic improvement, but also drained resources and diverted attention “from the structural issues that keep schools from improving as well, that aren’t necessarily related to finances,” Dunn said.

“It distracts from the really important questions,” Dunn said. “People mistake judicial rulings as actually achieving something. I mean, courts can say stuff all the time, but it doesn’t mean that it’s actually going to lead to any meaningful change in students’ lives. From what I’ve seen, these adequacy cases don’t really make much of a difference.”