C The suit filed yesterday by the American Civil Liberties Union is part of a new wave of litigation aimed at challenging the "adequacy" of education rather than its "equality," experts in school law said yesterday.
The idea is to shift the emphasis in the legal challenges from spending disparities among school districts -- the tactic employed by the challengers in the "first wave" 1970s and early 1980s -- to whether the states are providing an "adequate" education in their poorest school districts.
The so-called "second wave" of finance suits began in 1989, when a court declared the entire education system in Kentucky unconstitutional, said Mary Fulton, a policy analyst for the Education Commission of the States, a nationwide interstate compact based in Denver. Since then, eight state funding mechanisms have been ruled unconstitutional, including those in Arizona, Massachusetts, New Jersey and Alabama, while five have been ruled constitutional.
More than half of the states' school financing formulas are under legal attack, Ms. Fulton said.
The ACLU has been active in second-wave suits; Maryland's is its fourth. The others are in Alabama, Louisiana and Connecticut.
The lawyers said the adequacy argument has several advantages, not least of which is that it doesn't force the plaintiffs to compare themselves with rich school districts, as in an equity suit. Wounds from an unsuccessful 1979 suit in Maryland filed by Baltimore and three rural districts have yet to heal, and the litigation cost taxpayers millions of dollars in lawyers' fees.
"You'll never eliminate politics from a suit, but going the adequacy route is much less politically sensitive," said Terrell Sessums, a Tampa, Fla., lawyer who is suing Florida in behalf of 45 districts.
The second-wave cases have led to more sweeping reforms of state education systems, while the earlier suits tended to result in simply changing the school-aid formula.
"Perhaps the most significant trend today," said Ms. Fulton of the ECS, "is the breadth and depth of some of these court decisions. Judges, like many education reformers, are taking a more comprehensive view of funding -- how it fits into the larger system and contributes to student achievement. It's a new day."
Ms. Fulton said education finance experts nationally will be watching the Maryland case closely because Maryland, unlike most other states, has a school reform program in place with specific standards of student performance.
"No doubt there will be argument over what's adequate in Maryland," she said, "but you are much further advanced than most states."
And even if the Maryland plaintiffs prevail, the game isn't completed. Appeals are certain. Legislative action takes time, and courts sometimes block legislative remedies as inadequate. And solutions don't always satisfy the plaintiffs -- New Jersey's school finance plan has been struck down three times since 1973.