It’s been more than thirty years since Jack Coons and Steve Sugarman, two University of California law professors, devised the legal theory for challenging the unequal financing schemes that appeared to lock so many poor and minority children into inferior schools. In the case that led to the landmark 1970s Serrano v. Priest decisions in California, and in similar cases in Michigan, New Jersey, Texas and a dozen other states, the courts have ruled that when states promise free public schooling to all children, they also have a responsibility to make certain that funding for those schools is relatively equal for each child, regardless of the local property-tax base and other economic circumstances of the communities where those children live.

At the time, the equity theory seemed as promising as it was novel. If a town was too poor to fund schools on a par with more affluent communities, it was up to the state to equalize the funding, which in turn was supposed to close the gap in achievement. Of course, it rarely did that. What those decisions did do, however, was to transform what had been, for the most part, a decentralized, property-tax-based school structure into a statewide apparatus. That led in turn to the increased control that the states now exercise over curriculums, standards and testing.

But in the past few years, courts–in Kentucky, Massachusetts, New York, North Carolina, Ohio and Wyoming–have embraced a far more sweeping, radical and ultimately unpredictable idea: that regardless of equity, the state is responsible for providing schooling that is adequate to twenty-first-century educational demands, even if that means providing extra resources to children at risk of failing. Not surprisingly, there are no certain measures of adequacy–they can be based on resources, on student outcomes or on some combination of the two–but in general, as the Wisconsin Supreme Court recently defined it, it means schooling “that will equip students for their roles as citizens and enable them to succeed economically and personally.”

Because the states have recently begun to define school standards with increasing precision–in reading and math, in science, in what students must do to be promoted or graduate, in articulating needs for well-trained people in a high-tech economy–the courts have ready measures of adequacy at their disposal. As it stands, students cannot be denied diplomas or held back on the basis of tests covering material that they haven’t had an opportunity to learn, but the new adequacy cases go far beyond curricular issues in requiring that schools provide the whole range of resources necessary to give every student the chance to succeed.

The most widely reported of the recent adequacy decisions came in New York in January, where State Supreme Court Justice Leland DeGrasse, a trial judge, ruled that the state’s system of school finance deprived children in New York City–the vast majority of them black and Hispanic–of the “sound, basic education” guaranteed by the state Constitution (and in similar or identical words, by many other state constitutions).

In a voluminous opinion following a lengthy trial, DeGrasse, noting that some 40 percent of New York City’s children come from welfare homes and that more than 70 percent are poor enough to qualify for low- or reduced-price lunches, listed grievances common to many US inner-city schools–dilapidated, overcrowded and sometimes unsafe buildings; a high proportion of undertrained and incompetent teachers; lack of books, laboratories and other science facilities and equipment; low graduation rates–and ordered the state to revise its fiscal formulas and devise and implement other remedies.

What was striking about DeGrasse’s decision was that instead of basing the decision solely on the state’s capricious and unequal funding, he cited an earlier appellate court decision to invoke “an adequacy principle…based on the premise that the State must ensure an education to public school students that satisfies some basic minimum requirements.”

And that, said DeGrasse, means not just some rudimentary level of literacy sufficient to get a low-wage job or read a ballot. It requires, at a minimum, education for “productive citizenship”–not just voting or sitting on a jury but doing so “capably and knowledgeably. It connotes civic engagement.” It also means schooling to close the “disconnect between the skills of the State’s and City’s labor forces and the needs of the high technology sector” and, by extension, mastery of the whole list of academic skills and disciplines related to those needs. DeGrasse drew on ideas popularized by the standards movement, which has pressured states to institute curricular requirements and high-stakes testing. While adequacy doesn’t encompass every detail of any state’s standards, Judge DeGrasse, like judges elsewhere, is using those standards to define roughly what adequacy means.

“Instead of dealing with equal-funding concepts and complex property-tax reforms,” says attorney Michael Rebell, who directs the Campaign for Fiscal Equity (CFE), the New York-based nonprofit that brought the case, “the adequacy approach allows courts to focus on the concrete issues of what resources are needed to provide the opportunity for an adequate education to all students and the extent to which those resources are actually being provided.”

In defending the case, the state’s lawyers argued that New York City was getting more money per pupil than most big city systems in other states and that if the city’s board of education spent it wisely, it would be sufficient. Rejecting that argument, DeGrasse not only made it clear that the funding was inequitable but that money alone was not the issue. If the city’s schools fell short in providing qualified teachers and adequate facilities, he reasoned, it was the state’s responsibility, since the school system was in effect an agent of the state.

There have been similar decisions in other states. In 1997 the North Carolina Supreme Court specifically rejected any constitutional right to equal funding–but it declared that every child in the state had a constitutional right to “a sound basic education,” which the court defined as, among other things, “one that will provide the student with at least: sufficient ability to read, write, and speak the English language and a sufficient knowledge of fundamental mathematics and physical science to enable the student to function in a complex and rapidly changing society; sufficient fundamental knowledge of geography, history, and basic economic and political systems to enable the student to make informed choices with regard to issues that affect the student personally or affect the student’s community [and] sufficient academic and vocational skills to enable the student to compete on an equal basis with others in further formal education or gainful employment in contemporary society.”

Building on that ruling, trial Judge Howard Manning Jr. last October pointedly rejected North Carolina officials’ contention that when a student passes an eighth-grade-level examination it’s tantamount to “a sound basic education.” Instead, he held that performance “at grade level or above,” as defined by the state’s standards, is the minimum the court would recognize as educational adequacy. And like DeGrasse in New York, he deplored the state’s implication that it was too much to expect children from impoverished backgrounds to achieve above any minimal level. Thus, “economically disadvantaged children, more so than economically advantaged children,” Manning ruled, “need opportunities and services over and above those provided to the general student population…. These additional opportunities may include additional time on task, lower class sizes, early education, individual tutoring, early intervention or supplementary instruction and materials.”

In a forthcoming article, CFE’s Rebell, who may be as knowledgeable as anyone on this new line of cases, writes that adequacy tends to provoke “less political resistance at the remedial stage because rather than raising fears of ‘leveling down’ educational opportunities currently available to affluent students, it gives promise of ‘leveling up’ academic expectations for all other students…. Instead of threatening to shift money from rich districts to poor districts, therefore, adequacy offers the possibility of increasing the pie for all.”

That seems rather optimistic. Every suburban legislator recognizes quite clearly the fact that every extra state dollar spent in New York City or East Los Angeles is not spent in Scarsdale or Palos Verdes, where their voters are, and every governor knows that the remedy could bust his budget. As a consequence, many states are fiercely resisting. In New York, Governor George Pataki quickly announced that he was appealing the DeGrasse decision. And in California, where the American Civil Liberties Union has filed a similar suit, hoping that it might prompt the governor and legislature to negotiate a settlement to provide better resources to the schools serving the poorest children–teachers, books, equipment–Governor Gray Davis, a Democrat, hired O’Melveny & Myers, one of state’s toughest corporate law firms (at up to $325 per lawyer per hour), to contend that the problems cited by the ACLU’s student plaintiffs were not the state’s responsibility. When San Francisco Superior Court Judge Peter Busch, the trial judge, refused to throw the case out, Davis countersued the local districts, claiming that if their classrooms were unheated and their toilets backed up, and if they were not providing their students with textbooks, it was they, not the state, who were responsible. (The state’s lawyer in the case is John Daum, who defended Exxon in the multibillion-dollar Exxon Valdez oil-spill case.)

In fact, most state constitutions are clear that in the end, the districts are only extensions of the state, and that if they fail, the state has also failed in its oversight responsibilities. And in imposing standards, testing requirements and elaborate accountability systems, as most states have done, they have also reinforced their own accountability. Which is to say that by defining adequacy, the standards movement has now bounced back on the states. The purpose of the adequacy criterion, said the Wisconsin Supreme Court, is to “adopt a standard that will equalize outcomes, not merely inputs.” In essence, the judges are saying that having set the standards–in reading and math, in history and science–the states have to provide the resources that will enable all children to meet them. As Rebell points out, that doesn’t mean the courts are using outcomes as an absolute criterion. But state officials seem clearly to understand the slippery slope that the adequacy suits represent.

And so, it appears, do some judges. The sharply divided Wisconsin court, while clearly embracing the adequacy test, ruled (improbably, and over some vehement dissents) that the state had not failed the test, even though many students were going to wretched schools. And one justice, Diane Sykes, rejected the adequacy test altogether. “There is no support for it anywhere…in the Wisconsin Constitution,” she wrote. “It is entirely the product of judicial invention. That may be fine education policy…. But as a judge I am compelled to say as forcefully as I can that the court’s exercise in education [law] standard-writing has nothing whatsoever to do with constitutional law.”

There’s no telling how far the courts will take the argument. Rebell points out that the courts are engaging the public and other branches of government in an ongoing “dialogue” to define the evolving standards of “a sound basic education.” Some of those decisions–particularly those that seem to require states to provide ever richer resources to underperforming children–will almost certainly run into increasing political resistance, both on financial and equity grounds. Pedagogically and morally, there may be ample justification for providing the most disadvantaged students with the extra resources they need to catch up. But when resources are limited, there is only so far that the political system will go.

Conversely, and more ominously, the Wisconsin case indicates that the adequacy argument doesn’t always lead to the reform of blatantly inferior rural or inner-city schools. It could even be used in their defense. When the North Carolina Supreme Court declared that “the North Carolina Constitution does not guarantee a right to equal educational opportunities in each of the various school districts of the state” as long as the state provides “a sound basic education,” you could hear a whole litany of Jim Crow-era arguments that some minimal schooling is all that’s needed for poor or minority children. For the moment, that’s not where the courts or the legislatures are going, and one hopes they never do. But adequacy can mean a lot of things.