Monday, November 23, 2015
Just when it seemed Pennsylvania schools would finally get a budget and avert the financial doomsday scenarios that many have been predicting since August, the details of the tax plan to cover the budget are threatening to derail the plan. Here is the introduction to the AP story outlining the roadblocks:
The Pennsylvania Senate is juggling a long-simmering fight over who pays for public schools just as Gov. Tom Wolf and top lawmakers appear to be struggling to hold together the skeleton of a budget deal that's five months late.
There's head-scratching in the Capitol over why Senate Republican leaders chose this moment for the debate. For one thing, some privately worry it could further destabilize already wobbly efforts to negotiate and pass a package of budget-related legislation.
On Saturday night, top House Democrats informed rank-and-file members that Republicans had told Wolf, a Democrat, that there isn't enough GOP support for a state sales tax increase — from 6 percent to 7.25 percent — to generate $600 million to balance the budget and $1.4 billion in rebates for homeowners who pay school property taxes.
"We are assessing our options and examining whether there are any acceptable alternative revenue sources to balance the budget and provide property tax relief," they wrote in the email obtained by The Associated Press.
A spokesman for House Majority Leader Dave Reed, R-Indiana, said Sunday that Republicans had told Wolf nothing of the sort, and that the level of GOP support for the idea is contingent on how the property tax rebates are distributed.
In any case, Democratic lawmakers have had their own complaints with the proposed deal, and negotiators have acknowledged it has been difficult to develop a formula to distribute the property tax rebates that would placate lawmakers who might be willing to vote for the tax increase.
For some lawmakers, the complete elimination of school property taxes is the preferred option.
It is no small matter: It would require a $12-plus billion state takeover of public school funding from school boards and perhaps the biggest-ever change in state taxation.
A Monday vote is expected, and it is not yet clear whether it will pass.
Get the full story here.
Wednesday, November 18, 2015
Earlier this year, I posted on a lawsuit in Massachusetts that challenges the state's cap on charter schools as violating the state's education clause. I noted the connection between the charter theory and that in Vergara v. State (California challenge to tenure). Both cases pick out single education policies as impeding their access to a constitutional education. In that respect, they both ignore the larger education structures at play in their states. The charter claim, however, is an even bigger stretch, as it is not asking for a fix to the public education system itself but the right to exit it and gain access to an alternative system. In other words, since the state would give them what they are owed under the constitution, they want something else.
The state attorney general, Maura Healey, finally fired back this week in the state's responsive briefs. Here's the Boston Globe's summary:
She contends that the argument advanced by the five plaintiffs that there is a direct link between the charter school cap and the poor education they claim to be receiving is “illogical, highly speculative, and remote.”
“Numerous other factors” other than the charter cap could be responsible for the poor performance of some schools, Healey writes. And simply opening more charter schools won’t necessarily help because there is no guarantee that they would be high-quality charters, she contends.
“Not all charter schools in Massachusetts are high-performing,” Healey writes. “In fact, it is not unusual for the department or the board to impose conditions on existing charter schools, or close them because they do not perform as required.”
Healey also asserts that Boston has not, as the plaintiffs argue, reached its limit on the number of charter schools because it still has seats available in so-called Commonwealth and in-district charter schools, which are given more flexibility than traditional public schools, though not as much as full-fledged charter schools.
Healey also argues that the court should not step in to lift the cap because the state Constitution “leaves the details of education policy making to the governor and the Legislature.”
That sounds about right. For a similar critique of the constitutional challenge to tenure, see here.
One of Nation's Highest Achieving States May Go Higher: Commission Calls for Better School Funding Formula in MA by Molly Hunter
Massachusetts leads the nation in test scores and is one of only four states with fair school funding but sees the need to increase its financial support for its PreK-12 public schools in order to provide better and more equitable opportunities for its students.
On November 2, 2015, state education leaders released the Foundation Budget Review Commission's report and recommendations. This bipartisan Commission, established by the Legislature to examine the adequacy and effectiveness of the state's current education funding formula, found that the way the state calculates school districts' foundation budgets---the starting point in Massachusetts K-12 school financing---understates the cost of educating its nearly one million students to the tune of at least $1 billion per year.
The report focuses on four components for its financial recommendations, which recognize national trends and urge funding for: the surge in health insurance premiums; the actual costs of special education; the true costs of opportunity for students learning English; and, the higher costs for the swelling numbers of students in poverty and concentrated poverty.
- First, it notes that current assumptions fail to take into account the national surge in health insurance premiums over the past two decades, resulting in hundreds of millions of dollars being diverted out of the classroom to cover insurance premiums. As a result, many school districts are unable to provide core educational components like art, foreign languages, or professional development, or targeted initiatives to reach their most disadvantaged students. To address this, the Commission recommends that the Legislature use actual averages from the state's Group Insurance Commission---the buyer of health insurance for state employees---to set insurance costs and inflation rates in the Foundation Budget.
- The report's second recommendation is similar: adjust the state's calculations to more accurately reflect the current cost of special education. Because special education is a federal legal entitlement, school districts must essentially pay their special education bills first, before giving resources to other priorities. As with health insurance, the Commission recommended more accurate projection of special education costs in the Foundation Budget, so that money may in turn flow to additional priorities. They estimate the increase to foundation budgets from this recommendation to be $115 million in FY2014 dollars.
- Increase the "weighting" given for English Language Learners (ELLs) in the state's calculation of educational costs, to more accurately reflect the intensive work districts must often do to bring ELL students, especially high school students, to proficiency.
- Increase the "weighting" given for low-income students in school districts with high concentrations of poverty, in recognition of the unique costs caused by such concentrations. The Commission noted that weightings for these districts should fall in the range of 50% to 100% above the typical per pupil cost, and should be enough funding to pursue multiple interventions at once---such as, a longer school day in tandem with wrap-around services.
Wednesday, November 11, 2015
A new report by the Commonwealth Institute shows a net loss in teachers and resources over the past six years and growing student need. The net result is a school system in a worse position to serve its students today than before the recession:
Recent headlines have suggested that Virginia has 5,000 fewer positions in its K-12 schools now than before the beginning of the recession. The problem is actually much worse. Taking into account growing student enrollment, Virginia’s schools are missing over 11,000 positions, including 4,200 teachers. Also missing from Virginia’s schools are an additional 1,500 instructional staff, who should be assisting teachers in the classroom and helping students outside of it, and 5,500 support staff, who should be keeping the schools safe and running, getting students to and from class, and caring for student’s physical and behavioral health.
These missing positions stem from a combination of schools eliminating positions that they can no longer afford to support and schools not hiring staff to keep up with growing enrollment. Schools made these tough decisions because the state cut school funding moving out of the recession, pushing a greater share of the cost onto cashstrapped localities. In turn, as school divisions responded to budget pressures, they started to reduce staff and cut salaries.
Get the full report here.
Thursday, November 5, 2015
Going into Tuesday's election, the political makeup of Pennsylvania's Supreme Court was 2 Democrats, 2 Republicans, and 3 open seats. After Tuesday's election, it will be 5 Democrats and 2 Republicans. I am idealistic or naive enough to reject the notion that those numbers are determinate. I have also read enough good school funding opinions to know that education is one place where jurists (and politicians) will cross ideological lines in both directions. But I also know that when some supreme court justices have done the right thing in school cases, they have found themselves looking for new jobs in places like Ohio and Alabama where the judiciary is elected. This may be what makes Tuesday's election in Pennsylvania so important.
Education funding has been at the top of the political debate in the state for the past two years, ranging from the near implosion of Philadelphia's schools in 2013 to the current budget stalemate that has threatened to shut down the state's schools. On top of that, a constitutional challenge to the state's funding system is before the state supreme court right now. In other words, the voters knew exactly what was at stake when they elected this new supreme court. In fact, this election set a new record for campaign spending in a judicial election in the state.
Whether the current sitting members of the court had intended to issue a decision before the end of the year is hard to say. Even with good intentions, constitutional school claims generally take at least a year, and this one has not even been argued yet. Regardless, with two vacancies and a 2-2 split, it is safe to assume that the newly elected members of the court will decide the fate of the state's education clause. And the will of the voters suggests there will not be repercussions if the court finally, after years of decisions to the contrary, decides to enforce the constitution's education clause.
Wednesday, November 4, 2015
Friday, October 30, 2015
New York Makes Major Concession in Small Cities School Funding Case: State Shortchanged Districts $1.1 Billion
The Education Law Center released this announcement yesterday:
In court papers filed in the Small Cities school funding lawsuit, the Plaintiff parents and the State agree that over the past 5 years the 8 districts have not received $1.1 billion they should have received under the 2007 Foundation Aid Formula.
The Foundation Aid Formula was designed to provide New York school districts with adequate resources to provide the opportunity for a sound basic education. The $1.1 billion funding shortfall caused significant cuts in teachers, support staff and programs, and low academic outcomes, depriving district students of their right to a sound basic education under the State Constitution.
This key finding is among the extensive Findings of Fact based on the trial record filed late Wednesday by the Plaintiffs with Judge Kimberly O’Connor in the Albany Supreme Court as the next step in Maisto vs. State of New York, commonly called the Small Cities case.
The case involves school children from the small city districts of Mount Vernon, Port Jervis, Newburgh, Poughkeepsie, Kingston, Utica, Jamestown and Niagara Falls. The students sued the state for not providing its fair share of funding based on the 2007 Foundation Aid Formula, causing their districts to cut teachers, staff and other essential resources and undermining efforts to improve outcomes for students.
The Foundation Aid Formula, enacted in the wake of the landmark Campaign for Fiscal Equity v. Stateruling is designed to provide the every New York student with a “sound basic education” as required by the New York State Constitution.
THE GENERAL FINDINGS OF FACT IN THE PLAINTIFFS’ FILINGS INCLUDE:
- The shortchanging of $1.1 billion has resulted in test scores and graduation rates being unacceptable.
- Lack of funding has caused districts to cut teachers, support staff, and other essential educational resources.
- These cuts have resulted in Maisto districts being out of compliance with state regulations in such areas as academic support for students with disabilities and special needs.
- Every expert testifying for the state in the trial, whether on behalf of both the plaintiffs or the state, agreed that additional funding and resources would improve test score and graduation rates, particularly for high-needs students.
PLAINTIFFS’ FINDINGS SPECIFIC TO EACH CITY SHOW THAT AS A RESULT OF THE UNDERFUNDING:
- Poughkeepsie has lost 130 staff between 2009 and 2014. The district now does not have enough special education programs and academic intervention services.
- Jamestown reduced its staff by 24 percent from 2008 to 2012. The district does not have enough academic intervention services, services for English language learners and early literacy intervention.
- Port Jervis lost more than 10 percent of its staff in one year. In 2010-11 school year, district per pupil spending for a “sound basic education” had a shortfall of 31 percent.
- Utica cut 364.6 staff positions from 2010 to 2014. The district does not have enough academic intervention services.
- Kingston has 115 fewer full-time staffs than it did in 2012. In 2012-13 school district, district per pupil spending for a “sound basic education” had a shortfall of 23 percent.
- Niagara Falls cut 207.5 staff positions since 2009. The district has only a 60 percent graduation rate.
- Newburgh has been shortchanged $239 million by the state. The district does not have enough social workers, counselors or academic intervention teachers for its students.
- Mount Vernon simply has not enough teachers to address the needs of the students. The district had to cut “specials” including library, art, music, band, orchestra and reading teachers have been cut to a minimal level.
The attorneys for the plaintiff parents, Gregory G. Little, White & Case LLP; William E. Reynolds, Nixon Peabody LLP ; David Sciarra and Wendy Lecker, Education Law Center; and Megan M. Mercy, Associate Counsel, New York State United Teachers, note that these districts are plagued by low property wealth, higher than average local tax rates and poverty.
"There is no excuse for the State's failure to provide every student with their constitutional right for an opportunity to have a sound basic education,” said Gregory Little of the White Case firm and a lead counsel in the case. “We trust the legal system will enforce their education rights. It would be far better, however, if the State simply agreed to provide the funding these students and their peers desperately need.”
“For too long, children in these districts have been deprived of essential resources, such as academic intervention, social workers, reading specialists and special education services,” said William Reynolds of the Nixon Peabody firm and also counsel to plaintiffs. “The State enacted the 2007 formula to provide those resources, but then walked away from its promise to these children and their schools.”
“This lawsuit is essential. The State is underfunding these schools and both the State and the plaintiffs agree on that fact,” said Billy Easton, Executive Director, Alliance for Quality Education. "The failure of the state to fulfill its obligations to students is shortchanging students of their educational opportunities and parents and students have had to resort taking the state to court."
The case was heard by Judge O’Connor in New York Supreme Court over a span of eight weeks from January 21 to March 19, 2015. At the close of the trial, Judge O’Connor directed the plaintiffs lawyers and the Attorney General to submit findings of fact based on trial evidence that support their respective positions.
The parties will now file legal briefs, which finalize the trial proceedings and allow Judge O’Connor to make a ruling in the case.
The findings of fact can be found here.
Thursday, October 29, 2015
The Right to an Education or the Right to Shop for Schooling: Examining Voucher Programs in Relation to State Constitutional Guarantees
Tuesday, October 27, 2015
News outlets in Pennsylvania report that without a budget solution in the next week and a half, state funded pre-kindergarten programs will begin closing their doors. All schools and students will soon feel the effects of the education budget battle, but this result is particularly perverse. And I guess this answers my prior blog post--Could School Funding in Pennsylvania Be Any More Problematic?--in the affirmative. Pre-k for disadvantaged students is often the primary remedy that plaintiffs seek in school funding litigation. It is the one program that has the potential to offer the surest and longest lasting results. In Pennsylvania, it is set to be the first thing to go.
Friday, October 23, 2015
USA Today ran a relatively long and data heavy story on school funding earlier this month. For the specialist, there was not anything new in it. But it did offer a good general introduction to funding inequity, explaining that
Nationally, an average of 45.3% of total school funding comes from local sources. Only in one of the poorest districts does local spending account for more than 20% of the district's budget. In those same districts, state sources account for an average of 66% of total funding, and federal sources account for 18.1% of funding on average. Nationwide, state funding comes to 45.6% of total funding, and federal funding comes to just 9.1%."
The comparisons of funding both within and across state lines were also easy to digest. For instance, it framed the problem of inequity by pointing out "Nationally, public schools spend an annual average of $10,700 per pupil. In eight of the 10 wealthiest districts, spending is at least $20,000 per pupil." Get the full story and data here.
Thursday, October 22, 2015
Two years ago, Philadelphia's public schools were the first to manifest the symptoms of Pennsylvania's unconscionable system of funding schools. The cuts the district had to make in basic services were startling, including telling full-time school nurses they could only work a day or two a week. When a young girl died shortly after school one day when the school nurse was told to stay home, the problem caught national attention. Shortly thereafter, the national civil rights community descended on the city and the former governor stepped in with short term aid.
Events like those prompted the state to establish a commission to come up with a new funding system. After a long listening and research tour, that commission made proposals this year, and the state appeared to be ready to move forward, albeit imperfectly. The governor proposed a $400 million boost to the state's education budget. The republican legislature responded with only a $100 million increase, apparently as leverage in another fight over taxes on natural gas drillers in the state.
Friday, October 2, 2015
Almost a year ago, the South Carolina Supreme Court held that the state was failing to deliver a minimally adequate education. It also retained jurisdiction over the case, indicating that the state should return to the Court with evidence of a remedial plan. Since then, the legislature has established commissions to study the issue, but not the legislature has not taken any formal action toward a remedy. Last week, in response to motion filed by the plaintiffs, the Court order the state to take more concrete action and set a timetable for doing so. The specifics of the order are as follows:
Friday, September 25, 2015
California School Board Association Sues State For Lowering Education Budget By $150 Million Through Legislative "Manipulations"
An alliance of school boards has sued California officials this week alleging that the state legislature "manipulated" what is included in the state's minimum education spending guarantee and thus violated the California Constitution's Article XVI, sec. 8, called Proposition 98. In the complaint filed September 22 by the California School Boards Association (CSBA) and Education Legal Alliance, the plaintiffs explain that Proposition 98 requires a minimum percentage of the state budget to be spent on K-12 public schools and community college districts. In 2011, the legislature moved childcare spending out of the education budget and adjusted or "rebenched" the minimum education spending guarantee to reflect the missing amount. When some childcare costs were added back in the current 2015-16 budget, however, the legislature did not readjust or "rebench" the minimum educational spending requirement, thus decreasing the minimum guarantee of Proposition 98 by $150-$180 million, the plaintiffs allege. The CSBA says that it does not object to childcare expenditures being part of the education formula, but does object to the legislature's inconsistency in defining what is part of Proposition 98's minimum spending guarantee. Read the complaint in California School Boards Association v. Cohen here.
Wednesday, September 23, 2015
On Monday in Dwyer v. State, the Colorado Supreme Court held that its constitutional mandate that specifically requires annual increases in "statewide base per pupil funding" does not prohibit the state from reducing the total amount of funds per pupil it provides to school districts. That does not make sense, so let me explain.
Tuesday, September 22, 2015
Last fall, plaintiffs filed suit against Pennsylvania, arguing that education is a fundamental right under the state constitution and that the state has violated that right by repeatedly failing to ensure adequate education resources. That claim moved through the trial court quickly and is now before the Pennsylvania Supreme Court. Pennsylvania is one of the few states that has yet to fully entertain these issues, having dismissed school funding cases in the past as non-justiciable. Something tells me that this time might be different. As discussed several times on this blog over the past few years, the state has been so derelict in its obligations to its students that its action could be declared unconstitutional under any minimal and deferential standard one might imagine.
The Education Law Center released this summary of the case and its amicus brief:
Monday, September 21, 2015
The briefs are in the appeal of Vergara v. State. Amici in support of the state are exposing a huge evidentiary flaw in the plaintiffs' case: the lack of causation. For those who are new to the case, last year a California trial court held that teacher tenure was unconstitutional, concluding that tenure prevented schools from removing grossly ineffective teachers. The court reached a similar conclusion in regard to the state's "last-in-first-out" statute, which requires reassignment and retention be based on seniority during reductions in force.
The San Francisco Lawyers' Committee for Civil Rights and the Education Law Center wrote:
Plaintiffs . . . did not show, nor can they show, that the challenged statutes require the retention of clearly ineffective teachers or that those statutes resulted in assignment of teachers incapable of delivering curriculum and instruction to students in particular classrooms, schools, or districts. That is, plaintiffs did not show that the “Permanent Status Statutes,” and in particular, Education Code section 44929.21, subdivision (b), requires districts to reelect ineffective teachers at the expiration of their two-year probationary period. . . . Plaintiffs focused on the processes for dismissing teachers . . . . While plaintiffs critiqued these processes as a matter of public policy, they did not produce sufficient record evidence establishing that the statutes required districts to retain unqualified and ineffective teachers. . . .
At best, plaintiffs presented anecdotal evidence that in some instances, the challenged statutes could contribute to retention of ineffective teachers. However, the trial court’s analysis, given the record below, does not show or support a causal connection between these statutes as compared to the many other factors linked to teacher quality, and the deprivation of a constitutional education in specific California districts or schools.
Erwin Chemerinsky and Catherine Fisk's brief on behalf of constitutional law professors was even more specific:
Wednesday, September 9, 2015
Last week, the Washington Supreme Court in League of Women Voters v. State held that Washington’s charter school statute was unconstitutional. Its reasoning was straightforward. First, the state constitution mandates that the state create and fund “a general and uniform system of public schools.” Second, the constitution further provides that “the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools.” Third, charter schools are funded out of the common school fund. Fourth, charter schools are not “common schools” because: a) they are not subject to the same rules and oversight as the other public or common schools in the state, b) they are governed instead by a charter school board; and c) that charter school boards are not elected by the people, but appointed or selected. As the Washington Supreme Court had established in a previous case, “a common school, within the meaning of our constitution, is one that is common to all children of proper age and capacity, free, and subject to and under the control of the qualified voters of the school district. The complete control of the schools is a most important feature, for it carries with it the right of the voters, through their chosen agents, to select qualified teachers, with powers to discharge them if they are incompetent.” Thus, in short, the charter school legislation is unconstitutional because it directs common school funds to schools that are not “common schools.”
Thursday, September 3, 2015
Pennsylvania had long been one of those states that somehow managed to distribute money to its public schools without an actual funding formula. Rather than distributing money based on head counts, locality cost, special need students and the like, Pennsylvania funded schools through what I call the "Pittsburgh ought to get this and Philly that" method. During Governor Rendell's administration, the state, for the first time, passed a formula, which seemingly improved things a little. But during Governor Corbett's time in office, the state abandoned the formula. This in, no small part, led to the horror stories in Philadelphia, including school nurses being told they could only work one or two days a week. In 2013, on a day when the school nurse was told to stay home, a girl began exhibiting symptoms at school, which later that day would lead to her death. This along with other atrocities led the civil rights community to uncharacteristically descend on the state.
Over the past half year or so, a commission on school funding has traveled the state to seek input from districts and stakeholders on what should be done. This summer the commission submitted a proposal to the legislature, which has yet to act. But whatever legislation might come out of the state house the legislature has proven unable to keep its word in the past. The abandonment of the funding formula is case in point one. Case in point two is the crisis in Chester right now. A few years ago, teachers had to work for free because the district was so upside down in its payments to charter schools. The district is right back in the same position.
Wednesday, September 2, 2015
Shelby County School District in Memphis, Tennessee, sued the state Monday, alleging the state's failure to properly fund schools violated both the state constitution and state statutes. The lawsuit is interesting on several counts. First, Shelby County has, by a significant margin, the largest population in the state. Thus, the funding problems it faces cannot be written off as random. As Shelby County goes, so to does the state.
Second, the state experienced three rounds of school finance litigation a decade ago. That litigation was brought by the small school systems in the state. The argument there was that salaries were so low in rural communities that they could not attract teachers. Shelby County's complaint, in effect, suggests the problem is statewide and not limited to just teacher salaries. It touches almost every aspect of education.
Monday, August 31, 2015
ACLU Challenges Nevada's School Voucher Program; Is The State's Poor Funding of Public Schools Relevant?
The ACLU along with the Americans United for Separation of Church and State filed a lawsuit last week challenging the state's voucher program that will send public dollars to private, religious schools. This, they say, violates the state constitution's proscriptions on the expenditure of public dollars. “Parents have a right to send their children to religious schools, but they are not entitled to do so at taxpayers’ expense. The voucher program violates the Nevada Constitution’s robust protections against the use of public funds for religious education,” said Tod Story, executive director of the ACLU of Nevada. “This program allows public money to be spent at intuitions which operate with sectarian missions and goals and impart sectarian curricula. This is exactly what the Nevada Constitution forbids.” The press release offers this further summary:
Under the program, parents of students enrolled in public school for at least 100 days may transfer their children to participating private schools, including religious schools, and are eligible to receive thousands of dollars in public education funds to pay for tuition, textbooks, and other associated costs. The funds will be disbursed through so-called “Education Savings Accounts,” and there are no restrictions on how participating schools can use the money.
The lawsuit argues that the funding scheme violates Article XI Section 10 of the Nevada Constitution, which prohibits the use of public funds for any sectarian purpose. The lawsuit also claims that the program runs afoul of Article XI, Section 2, which requires the legislature to provide for a uniform system of common schools.
. . .
Gregory M. Lipper, senior litigation counsel for Americans United, added, “Nevada’s Constitution makes clear that the state may not fund religious instruction or religious discrimination. The voucher program flouts this constitutional prohibition. Nevada’s parents, students, and taxpayers deserve better.”
Some may recall that a similar challenge to North Carolina's voucher program failed recently, but because the challenges are based on the state constitution, not the U.S. Constitution's 1st Amendment, North Carolina's decision will have no direct effect.