By Mark Goldich*
Although not explicitly guaranteed by the Constitution, public education is upheld under the law as a crucial government service that must be provided equally to all children in the United States. The Supreme Court has declared public education essential to providing citizens the tools to enjoy and participate in America’s economy. Technological development in classrooms, meanwhile, has proven crucial in improving teaching and learning to keep pace as the economy modernizes. Due to the inequitable distribution of vital technology resources across school districts, students in poorer neighborhoods nationwide do not enjoy the benefits of classroom technology to their significant disadvantage.
As states provide for education through their own constitutions and statutes, they are exposed to lawsuits by aggrieved parents and school districts seeking more equitable and robust distribution of education resources. Part II of this Note will review the importance of technology in classrooms, briefly examine a handful of state constitutions providing for public education, and introduce several lawsuits challenging statewide distribution of education funds and resources. Part III will examine the implications of state-level education litigation, and review several recently enacted laws that specifically enhance technology in classrooms. Part IV will recommend that states address the education technology gap head-on by crafting laws ensuring its equitable and adequate dispensation across school districts. Such laws will better serve students, and prevent costly litigation.
School systems across America are in a period of transition. Over the past several years, classrooms have shifted from predominantly print-based to digital learning environments. Access to education technology allows students to connect to learning opportunities worldwide, develop valuable research skills at an early age, and access online courses and supplemental materials to complement their in-school experience. Results show that access to such technology can boost test scores, while increasing student engagement in project-based learning in classrooms.
Classroom technology also helps prepare students for the modern workforce. Many jobs require at least some use and knowledge of computer technology; students who exit school without adequate training enter the workforce at a marked disadvantage. By equipping schools with adequate technology, districts better prepare students to compete economically.
As the national education community has awakened to the benefits of classroom technology, some states have accordingly provided such resources to students. With increasing regularity, school districts are experimenting with online learning programs, and helping schools implement digital curriculum. In 2002, for example, Maine became the first state to adopt a one-to-one laptop program, providing each student in Maine access to a laptop in the classroom. Students across America increasingly enjoy access to online classes that supplementing traditional courses, offer dual or advanced credits, or replace traditional high school courses altogether. In 2008, Florida enacted the first statewide legislation requiring districts to offer full- and part-time virtual course options. Currently, five states (Alabama, Arkansas, Florida, Michigan, and Virginia) have laws requiring students to complete at least one online course in high school. Such measures reflect the growing understanding that education technology is prudent in the pursuit of producing prepared pupils.
Despite some growth in education technology nationwide, an alarming gap in access to such resources persists between the nation’s wealthy and poor school districts. This “digital divide” leaves many students from poorer school districts at a severe disadvantage. The Chicagoland area offers a poignant example of the disparity. In 2012, DuSable High School, located in a poorer neighborhood on the south side of Chicago, offered only twenty-four instructional computers for nearly a thousand students. Many are thus without basic skills, such as the ability to save files to a flash drive, or set margins in Microsoft Word. In contrast, nearby Deerfield Public Schools District 109, located in a richer neighborhood, currently provides approximately 2,000 computer workstations for its 3,100 students, affording them the chance to develop valuable research and critical thinking skills at an early age. That students in low-income school districts also often lack access to technology at home only compounds the problem. Recent studies show only 62% of people in households making less than $30,000 a year use the Internet, compared to 90% in those making $50,000–$74,999. Teachers in low-income neighborhoods note greater difficulty using education technology than their peers in wealthier schools. Many teachers in low-income schools cite their students’ inadequate access to technology at home as a “major challenge” in attempting to use it in the classroom.
The extent of the digital divide is hard to justify, and flows directly from funding disparities between districts in many states. State and local governments in twenty-three states spend less per student in their poorest school districts than they do in their wealthiest counterparts. On average, states and municipalities nationwide spend 15% less on students in the poorest school districts than they do in the most affluent. Former Education Secretary Arne Duncan lamented as to the findings: “we have, in many places, school systems that are separate and unequal. Money by itself is never the only answer, but giving kids who start out already behind in life, giving them less resources is unconscionable, and it’s far too common.”
Such large disparities in funding and resource distribution often give rise to state-level litigation, wherein aggrieved students, parents, and districts challenge state funding methods under state constitutional provisions. The state constitution of Kansas, for example, provides, “the legislature shall make suitable provision for finance of the educational interests of the state.” The Kansas Supreme Court clarified the provision requires the state to guarantee equitable and adequate distribution of school funds and resources statewide. Since 2012, the state has been mired in litigation—Gannon v. State of Kansas—over its funding formula. In Gannon, a collection of districts, parents, and students argue the current formula does not meet the Kansas Supreme Court’s equity and adequacy requirements. The court has repeatedly scolded state legislators for attempting to shirk their constitutional mandate, maintaining, “school districts must have reasonably equal access to substantially similar educational opportunity through similar tax effort.” The court also clarified, “regardless of the source or amount of funding, total spending is not the touchstone for adequacy.” In so holding, the court required the state to provide school districts with adequate support and resources in addition to a mere dollar amount.
In New York, according to its highest court, the state constitution guarantees “a sound basic education” to all students. Like the Kansas court in Gannon, the New York court made clear this requirement cannot be met with funding alone: “A sound basic education is gauged by the resources afforded students and by their performance, not by the amount of funds provided to schools.” In Campaign for Fiscal Equity v. State of New York, the court noted:
For at least a decade it has been the position of [State Education Department] that instructional technology—computers, related hardware such as printers and modems, and appropriate software—is an essential resource for students . . . . Defendants correctly point out that in the last three years there has been an infusion of funds devoted to increasing schools’ use of instructional technology. However, these funds have failed to remedy New York City public schools’ technological deficit. Moreover, it is unclear whether funding for technological improvements in New York City public schools will continue.
In Ohio, the Supreme Court summarized the state’s constitutional education mandate as follows:
The mission of education is to prepare students of all ages to meet, to the best of their abilities, the academic, social, civic, and employment needs of the twenty-first century, by providing high-quality programs that emphasize the lifelong skills necessary to continue learning, . . . use information and technology effectively, and enjoy productive employment.
In DeRolph v. State of Ohio, the court held that the state’s school funding formula failed to pass constitutional muster, lamenting:
None of the appellant school districts is financially able to keep up with the technological training needs of the students in the districts. The districts lack sufficient computers, computer labs, hands-on computer training, software, and related supplies to properly serve the students’ needs. In this regard, it does not appear likely that the children in the appellant school districts will be able to compete in the job market against those students with sufficient technological training.
The courts in Kansas, New York, and Ohio suggest that providing adequate technological resources to its school districts is a minimum requirement states must meet to defeat education-funding challenges.
Cases like those discussed above have often proven successful for plaintiffs, and warn of future battles for state legislatures. Such cases often span years, and require states to expend valuable resources defending legislation. Gannon, for example, represents the culmination of years of political tug-of-war over school funding in Kansas.
After the court found for the plaintiffs in 2012, the state legislature re-tooled the state’s per-pupil funding formula, adding approximately $130 million to its school budget to address inadequacy and inequity. The court approved the legislature’s remedies, but left the matter open to allow plaintiffs to raise future concerns if the state failed to uphold its promises. As it became clear that the state’s corrective measures would cost more than anticipated, the legislature scaled back on the additional aid it promised to poorer districts, passing a new, block-grant formula designed to shield the state from school funding increases. Not surprisingly, the Gannon plaintiffs immediately challenged the state’s maneuver. The ongoing litigation has been a significant thorn in lawmakers’ sides, as many expected the case to disappear with their initial appeasement promises. Disgruntled state representatives have lashed out, arguing courts should stay out of state budget determinations; some have threatened to alter the state’s judicial selection process in retaliation against the court’s “activism.” The Ohio Supreme Court’s decision in DeRolph precipitated similarly ugly political fallout in Ohio. Though the case began in 1991, the Ohio Supreme Court did not hand down a decision for the plaintiffs until March 1997. Since then, the Ohio Supreme Court has declared the state’s school funding formula unconstitutional three additional times.
Long, bitter adequacy suits are costly to states in several ways. The most obvious costs are those imposed by courts, requiring states to spend greater sums on education. The initial Gannon decision led Kansas to announce a $130 million increase in annual education spending. The Ohio legislature, as a result of the DeRolph decisions, “spent billions on new schools, increased per-student aid 66 percent, and spent hundreds of millions in extra money for poor schools.” While such increases represent boons for poorer public school districts, they are jarring for state legislatures, as they require massive budget reallocation on the fly. Further, extended battles in state court are not cheap. The plaintiffs in DeRolph, for example, reported litigation costs of over $3.6 million annually prior to winning the case. At various points throughout the lengthy litigation, the court ordered the state to pay the coalition’s costs, on top of the approximately $2 million it spent on its own legal defense.
Such lawsuits, culminating with the state’s highest court declaring the state’s youth under-served, also represent considerable embarrassments to state legislatures. Given public education’s position as “the most important function of state and local governments,” one can only surmise the meticulous condemnation of a state’s public school system would not mark a proud moment for lawmakers. Although any state’s greatest incentive to equally provide its students with adequate education technology is to best prepare its young people; avoiding lengthy lawsuits, jarring fiscal mandates, and public embarrassment provide additional incentive for states to satisfying their constitutional duties.
Some states have shown early leadership in the fight to close the digital divide, passing statutes specifically aimed to equip schools with adequate education technology. For example, in 2014, North Carolina passed two new laws designed to transition classrooms from traditional textbooks to digital learning platforms. Similarly, the Georgia legislature recently passed the “Digital Classroom Act,” designed to provide digital textbooks and learning tools in classrooms across Georgia. The law provides a laptop, tablet, or other wireless electronic device to all students above the third grade who cannot provide their own for reading or accessing instructional material. 
In 2015, the Delaware Legislature established a task force devoted to making Delaware “the premier state for utilizing technology in pre- kindergarten to grade 12 education.” One of its primary mandates is to equalize access to education technology across districts statewide. While such provisions benefit students by ensuring access to essential learning tools; the state’s proactive, statutory approach to providing education technology signals its commitment to offering a modern and robust education equally to all students, and addresses an issue that has proven central to many state education lawsuits.
Given the importance of providing students access to education technology, states should follow the lead of North Carolina, Georgia, and Delaware, and address the digital divide head-on with legislation. Each of the recently passed provisions discussed above take different approaches to improving education technology within the respective states. As states implement new education technology plans and experiment with methods, others should watch closely, identify best practices, and scale up the most effective methods.
By passing laws ensuring equal and adequate access to education technology, states commit to providing students a rich and relevant education better suited for a technology-driven economy. States additionally benefit from avoiding ugly, lengthy, and expensive education-funding litigation. State courts have shown their willingness to interpret and strictly enforce the duties imposed by state constitutions, and poor or unequal provision of education technology is a major factor considered. Passing such legislation represents a positive, worthwhile investment in any state’s students, and lends credibility to any state arguing before its highest court that it is meeting its constitutional requirements.
Education technology is only becoming more essential and more ingrained in classrooms nationwide. To best serve students and legislatures alike, states should pass laws ensuring all students enjoy the benefits of a modern education; not just those from wealthier school districts. In perpetuating the digital divide, states breach their constitutional duties to provide equal and adequate public education to their citizens, inviting courts to hold state legislatures accountable. State lawmakers should show courage by investing in education technology, and help level the playing field between rich and poor districts.
 See Plyler v. Doe, 457 U.S. 202, 221 (1982) (“Public education is not a ‘right’ granted to individuals by the Constitution. . . . [E]ducation has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.”).
 See Saomya Saxena, Using Technology in Education: Does It Improve Anything?, EdTechReview (Oct. 8, 2013), http://edtechreview.in/news/681-technology-in-education (discussing ways technology has improved education in recent years).
 See Nick Pandolfo, As Some School Plunge into Technology, Poor Schools Are Left Behind: Quickening Pace of Technology Widens the Digital Divide, Chi. Tribune (Jan. 25, 2012), http://articles.chicagotribune.com/2012-01-25/news/ct-x-digital-divide-0125-20120125_1_computers-consortium-for-school-networking-poor-schools/2 (highlighting the growing disparity in access to education technology between the nation’s wealthiest and poorest districts).
 Arne Duncan, U.S. Sec’y of Educ., The Digital Transformation in Education: Remarks at the State Educational Technology Directors Association Education Forum (Nov. 9, 2010), http://www.ed.gov/news/speeches/digital-transformation-education-us-secretary-education-arne-duncans-remarks-state-educational-technology-directors-association-education-forum. Some school districts, for example, have begun using digital tablets with educational software in classrooms to deliver curriculum in more innovative ways. See A Bold New Vision For Instruction Should Ignite the Move to 1:1, Off. Educ. Tech., U.S. Dep’t Educ., http://tech.ed.gov/stories/a-bold-vision-for-instruction-should-ignite-the-move-to-11/?back=%2Fstories%2Fstory_tag%2Fpersonalized-learning%2F (last visited Nov. 14, 2016) (describing a recent initiative in Virginia providing each student with tablet for in-class and at-home use).
 U.S. Dep’t of Educ., Getting America’s Students Ready for the 21st Century: Meeting the Technology Literacy Challenge 19 (1996), http://files.eric.ed.gov/fulltext/ED398899.pdf (explaining that employers are likely to prefer candidates with technological proficiency).
 See Evergreen Educ. Grp., Keeping Pace With K-12 Digital Learning: An Annual Review of Policy and Practice 11, 12 (2015), http://www.kpk12.com/wp-content/uploads/Evergreen_KeepingPace_2015.pdf (describing nationwide increases in education technology).
 See Liz Soltan, Digital Divide: The Technology Gap Between the Rich and Poor, Digital Responsibility, http://www.digitalresponsibility.org/digital-divide-the-technology-gap-between-rich-and-poor/ (last visited Nov. 14, 2016) (discussing the correlation between lack of technology at school and lack of technology in homes in low-income school districts).
 See Emma Brown, In 23 States, Richer School Districts Get More Local Funding than Poorer Districts, Wash. Post (Mar. 12, 2015), https://www.washingtonpost.com/news/local/wp/2015/03/12/in-23-states-richer-school-districts-get-more-local-funding-than-poorer-districts/ (discussing alarming funding gaps between the nation’s wealthiest and poorest school districts).
 Id. at 1204; see also Kyle Palmer & Sam Zeff, Kansas to Court: Stay Out of School Funding, KCUR 89.3 (Nov. 24, 2015), http://kcur.org/post/kansas-court-stay-out-school-funding#stream/0 (describing the timeline of the ongoing Gannon litigation).
 A 1997 survey of state-level litigation found that plaintiffs won 74% of all adequacy suits (suits where concerned parents, school districts, and interested parties contend some students are not receiving an education of the quality demanded by their state constitution) before state supreme courts. See Jessica Malman, Connecting Students to “the Net”: Guiding Principles from State Constitutions, 7 Geo. J. on Poverty L. & Pol’y 53, 103 (2000).
 See Sam Zeff, A Primer on the School Funding Case Before the Kansas Supreme Court, KCUR 89.3 (Nov. 5, 2015), http://kcur.org/post/primer-school-funding-case-kansas-supreme-court#stream/0 (“On Friday morning, the Kansas Supreme Court hears arguments in a school funding case that’s gone on for years and could lead to the Legislature being ordered to spend hundreds of millions of dollars more on public education.”).
 John Eligon, Kansas Schools Fight Plays Out Against Backdrop of Debate on Judiciary, N.Y. Times (Mar. 22, 2015), http://www.nytimes.com/2015/03/23/us/kansas-schools-fight-plays-out-against-backdrop-of-debate-on-judiciary.html?_r=0.
 See James Drew, Coalition Legal Fees $3.6M and Growing Ohio Taxpayers Foot Bills for Columbus Firm’s Work, Toledo Blade (June 17, 2001), http://www.toledoblade.com/State/2001/06/17/Coalition-legal-fees-3-6M-and-growing-Ohio-taxpayers-foot-bills-for-Columbus-firm-s-work.html (“The coalition challenging Ohio’s school-funding system has used $3.6 million in tax dollars to pay for legal fees over the last decade—and the meter keeps running.”).
 Campaign for Fiscal Equity v. State of New York, 719 N.Y.S.2d 475, 513–14 (N.Y. Sup. Ct. 2001); DeRolph v. State, 677 N.E.2d 733, 740 (Ohio 1997); McDuffy v. Sec’y of Exec. Office of Educ., 615 N.E.2d 516, 553 (Mass. 1993).
 See Monica Herk, The Skills Gap and the Seven Skill Sets that Employers Want: Building the Ideal New Hire, Comm. For Econ. Dev. (June 11, 2015), https://www.ced.org/blog/entry/the-skills-gap-and-the-seven-skill-sets-that-employers-want-building-the-id (explaining the importance employers place on technological proficiency in seeking prospective hires).
 Associated Press, Kansas Officials Want School Funding on Hold, Wichita Eagle (June 29, 2015, 3:39 PM), http://www.kansas.com/news/politics-government/article25777900.html; Drew, supra note 55; Gannon Explained, supra note 45.