Thursday, August 24, 2017
For the third year in a row, public schools will begin the year with too few qualified teachers to cover their classes. Every state in the country has reported a shortage to the U.S. Department of Education. The shortage appears to have eased in some places and intensified in others. Edweek reports
[Oklahoma] issued a record-setting 1,160 emergency certifications in 2016-17 and 855 by the beginning of August for this academic year. These certifications allow people without a teaching certificate to teach for one year, or allow a certified teacher to teach a new subject before getting recertified.
And in Nevada, the fast-growing Clark County district, which includes Las Vegas and is the fifth-largest in the country, is starting its school year with almost 400 teaching vacancies—significant, though a far cry from the more than 900 openings the district had at the start of 2015-16.
Numbers like these, however, vastly understate the problem in some states. Confronting an unmanageable shortfall, states like California, Arizona, and others have simply changed the law regarding the credentials it takes to step foot in the classroom. California developed a program that allowed interns to become full-time teachers so long as they promised to complete their studies on the weekends. And by intern, I mean someone who is just starting their education studies. This summer Arizona passed a law to allow people without any formal teacher training to enter the classroom, so long as they had a bachelor's degree or five years of experience in a relevant field. In other words, those schools that report a fully staffed faculty may have a group of teachers who are far less qualified than they were in past years.
As I explain in a recent article, this shortage is not simply part of the regular ebb and flow of the market. It is of states' own making. During the recession, they over-gouged public education budgets, went to war on teachers themselves, and took money that could have went to traditional public schools and drove it to choice programs. The effect was to scare new and prospective teachers away from the profession. The teacher pipeline was more than cut in half in California. And when states' revenues rebounded following the recession, states refused to undo the damage they had done. Instead, they simply set a new normal, continuing to fund education at levels lower than before the recession. Even today, roughly half of states spend less in real dollar terms on education than they did in 2008. This is to say nothing of the war on teachers that some states are still willing to wage.
So while I bemoan the struggles that individual districts are facing, the real culprit is their state legislatures. And while court have no direct responsibility for education, they have, at least, enabled these legislatures. In prior decades, courts have forcefully intervened to block these types of assaults on public education and insisted on state legislatures adopting rational policies to carry out their constitutional duties regarding education. Over the last decade, however, courts have increasingly looked the other way.
The abstract to Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education offers this summary of trends as they stood in 2016 and teases a few solutions:
Two-thirds of states are funding education at a lower level today than they did in 2008. Some states are a full twenty percent or more below levels of just a few years earlier. The effect on schools has been dramatic. States have only exacerbated the problem by reducing teachers’ rights and benefits. These attacks on teachers, combined with funding decreases, have scared many prospective teachers away from the profession all together. The net result has been an extreme shortage of teachers nationwide. This past fall, large numbers of public schools opened without enough certified teachers to fill classrooms, relying instead on substitutes and interns on a full-time basis. In other instances, schools simply stopped offering certain classes. Decades of social science demonstrate these funding and teaching policies will have serious academic impacts on students. They will likely widen achievement gaps and impose learning deficits that some students will never overcome.
In the face of analogous threats, courts in the past have regularly intervened to protect educational quality and funding. Yet this time around, courts have almost uniformly refused to intervene and rarely offered a compelling reasoning for the refusal. This judicial passivism regarding education marks a troubling new trend. It suggests that the constitutional right to education may exist only in theory and that students are losing the constitutional leverage to demand that states repair the damage that they have caused. Likewise, nothing will prevent states from pursuing similar retractions again in the future.
This Article offers a doctrinal approach to reverse both educational retractions and judicial disengagement. Current trends, however, cannot be reversed without acknowledging the potential limits of judicial intervention during crisis. In particular, a serious crisis incites fear and political expediency, which can prompt legislatures to ignore court orders that purport to remedy the crisis. This disregard is inherently problematic for both education rights and the basic legitimacy of judicial authority, regardless of the subject matter. In this respect, the solution to the devaluation of education rights is also a step toward strengthening judicial authority. In education, courts must begin to incorporate prospective doctrines and rules that reduce the likelihood of judicial standoffs with legislatures. Simply put, future court orders should seek to avert crises by addressing them before they occur. This Article proposes three specific steps courts can take to achieve this end.
On one level, this may all sound like lofty theorizing, but the point of the paper is far more practical: the immediate crises that schools face are not ones that courts or states can easily fix after-the-fact. Recessions will come no matter what. The risk of shortages will always be present. The solution, then, is to plan ahead.
Schools deliver education not as single year chunks, but as collective thirteen year experiences. States must have processes and plans in place that anticipate problems, allowing them to weather recessions. This is no easy thing to do. The politics are predisposed against it. But I argue in the article that by consistently holding states accountable and adopting a few common sense standards, courts can begin to prompt states toward better decision making. States might protect their teacher pipelines through thick and thin so that they might not need to issue emergency waivers and establish alternative teacher programs every decade or so.