Tuesday, February 2, 2016

The Deceptive Promise of Vergara: Why Teacher Tenure Lawsuits Will Not Improve Student Achievement

Michele Aronson's student note, The Deceptive Promise of Vergara: Why Teacher Tenure Lawsuits Will Not Improve Student Achievement, 37 Cardozo L. Rev. 393, 394-96 (2015), is available on westlaw.  She situations Vergara within the historical context of courts as a vehicle for carrying out social reform.  Her introduction offers this summary:
 
In the recent case of Vergara v. State, commonly referred to as Vergara v. California, Judge Treu of the Los Angeles County Superior Court used the court's power to effect a new type of social reform: he became the first judge in any court in the United States to strike down a state's teacher tenure and dismissal laws. He reasoned that California's laws made it impossible to remove ineffective teachers from the classroom. Judge Treu concluded that California's teacher tenure and dismissal statutes “impose a real and appreciable impact on students' fundamental right to equality of education and that they impose a disproportionate burden on poor and minority students.” Vergara is a potentially landmark case, although its ruling is stayed pending appeal. Plaintiffs in New York have filed a similar lawsuit, and commentators expect to see more teacher tenure lawsuits in other states and cities.
 
This Note evaluates the promise of teacher tenure lawsuits in state courts to improve student achievement, and argues that lawsuits such as Vergara will ultimately be unsuccessful in doing so. The Note draws on lessons from education litigation reform efforts over the last seventy years, particularly school finance litigation. Part I provides background information about the persistent problem of poor student achievement in American public education in the last seven decades, and describes school finance litigation as the major reform effort to improve student achievement. Part II discusses Vergara and teacher tenure litigation more broadly as the newest wave of litigation attempting to improve student achievement. Part III compares teacher tenure litigation to school finance litigation and proposes that teacher tenure litigation will *396 likely be unsuccessful in improving student achievement in the United States for the following four reasons: (i) courts will find that teacher tenure lawsuits present a nonjusticiable political question; (ii) plaintiffs in teacher tenure lawsuits will lose on the merits, especially in states that do not recognize education as a fundamental right; (iii) courts cannot fashion meaningful remedies for plaintiffs in teacher tenure lawsuits; and (iv) even if plaintiffs in teacher tenure lawsuits surmount those obstacles, the lawsuits will not significantly improve student achievement because the complicated factors that affect student achievement are beyond the scope of teacher tenure laws.



 

February 2, 2016 in School Funding, Teachers | Permalink | Comments (0)

Monday, January 25, 2016

New York Plaintiffs Bring Novel Claim, Alleging State Must Step in to Stop a School Board's Abuses

Plaintiffs in East Ramapo, New York, have brought a unique claim against New York's Education Department.  They allege that it is liable for the local school board's mismanagement of the school district.  They argue that the school board is being driven by board members who send their children to private schools and do not have the public schools' interests at heart.  Plaintiffs rely on a number of recent third-party investigations and reports that document the school board's "fiscal mismanagement, misuse of funding and resources, and favoritism toward private school students," which have caused an inadequate and unqualified supply of teachers, denials of basic services for special needs students and English Language Learners, denials of access to music and art, and a shortage of equipment and supplies.  This mismanagement, they argue, deprives students' of the constitutional right to a sound basic education in the state.

This claim is analogous to a theory I forwarded here, arguing that local student assignment practices deprived students of their constitutional education rights and warranted legal action again the district.  The point was that many of the legal duties imposed on the state in school finance litigation also extend to the local district, assuming that the local district's actions are the cause of an educational deprivation.  The twist this new lawsuit includes is that, because the ultimate duty to ensure a constitutional education rests with the state, it is still the state that is obligated to step in and rectify local violations.  Thus, rather than asking a court to force the local board to rectify the violations, it asks that the court order to the state to intervene in the district.  This is a case to watch.  It is being litigated by the Education Law Center and O’Melveny & Myers, so it is sure to be well-handled.

January 25, 2016 in School Funding | Permalink | Comments (0)

Friday, January 22, 2016

Creating New Pathways to Equal Educational Opportunity

For those who missed it, Charles J. Ogletree and Kimberly Jenkins Robinson's edited volume, The Enduring Legacy of Rodriguez Creating New Pathways to Equal Educational Opportunity, is now out.   The book examines the long-term impacts of the Supreme Court's refusal to recognize education as a fundamental right in San Antonio Independent School District v. Rodriguez, detailing the extent of today's inequalities and connecting them to funding and segregation.  It also poses important questions like whether funding equality alone would have been enough to ensure equal educational opportunity and whether state based reforms have filled the gap created by Rodriguez.  The book closes with four chapters theorizing how the federal role in education today might be leveraged to address many of the lingering problems of Rodriguez.

In addition to chapters by the book's editors, it includes chapters by today's leading education and education law scholars: David Hinojosa, Camille Walsh, Michael Rebell, Amy Stuart Wells, David Sciarra, William Koski, Mildred Robinson, Genevieve Siegel-Hawley, Derek Black, and Erwin Chemerinsky.  The book is a must read for those looking for a holistic update and overview of the status of school funding and the federal role in education.  It could also easily serve as a major text for classes dealing with educational inequality.  While focusing on one overall subject, it approaches a diverse array of issues from different perspectives that could easily carry a couple weeks of class.

January 22, 2016 in Federal policy, School Funding | Permalink | Comments (0)

Thursday, January 21, 2016

What Does $300 Million in New Funds Mean for South Carolina's Schools? Not Enough

In 2014, South Carolina spent roughly $3.77 billion on elementary and secondary education. This figure also includes federal funding.  The governor's proposal to add $300 million to education a comes out to roughly an 8% increase in education spending.  As noted yesterday, that is still about $520 million below fully funding the state's existing finance formula.  The funding formula critique, however, offers little frame of reference to most.  The Center for Budget and Policy Priorities, however, has been doing a great job of tracking education expenditures over the past decade.  Their most recent report shows that education spending in South Carolina is still 10.4% below its pre-recession levels in 2008.  Based on that number, the current proposed increase would not even get the state back to where it was before the recession.  And to be absolutely clear, it was the underfunded and inadequate system prior to the recession that generated this litigation in the first instance.  In other words, the current budget increase, while important, would not appear to even get us back to our prior level of inadequacy.

To be fair, South Carolina, unlike most states, is exerting a relatively decent amount of effort to fund education.  Bruce Baker et al.'s most recent Funding Fairness Report Card indicates that South Carolina ranks 7th in terms of funding effort, which the report concludes is an "A" in normative terms.  Also, to South Carolina's credit, it does not have a regressive funding system that funds wealthy districts more than needy districts.  Its funding formula is roughly flat across districts.  The problem is that the districts that brought Abbeville v. State need far more than flat funding.  They need weighted funding that provides disadvantaged students 30% or more per pupil than the average student.  Thus, in normative terms, Baker's report rates South Carolina's funding distribution as a "C."  While Governor Haley does propose setting aside new funds for these needy districts, it is not a reworking of the formula itself, nor does it appear to be enough to give these students the boost they need.  My guess is that, even with these funds, South Carolina will come in at a "C" next year or narrowly make it into the "B-" range.

January 21, 2016 in School Funding | Permalink | Comments (0)

Wednesday, January 20, 2016

South Carolina's Plan to Remedy Educational Inadequacy

Late last month, the South Carolina legislature's task force on education reform released its recommendations.  The task force was formed by the Speaker of the House in response to the Supreme Court's finding that the state had failed to deliver a minimally adequate education as required by the state constitution.  The task force's job was to identify the causes of the state's educational inadequacies and propose solutions.  Its findings and proposals included:

  • creating a teacher, principal, and superintendent pipeline before the current shortage becomes critical.
  • setting goals for school leaders and metrics for measuring progress toward those goals, which includes all students reading at grade level by 3rd grade, individualized graduation plans for all 9th graders, and college and career readiness by the end of the 12th grade
  • intensive, immediate, and differentiated assistance for school districts labeled as "at-risk" or "below average"
  • efficiency and effectiveness studies of "at-risk" or "below average" districts
  • developing more expertise in Department of Education to assist local districts
  • increasing funding for districts with extreme poverty (a .30 growth in the current poverty weighting), with increased accountability for that funding
  • creating an infrastructure bank
  • in districts where students spend long periods on the bus, instituting technology on the buses to allow students to use that time productively.

This year the state is projected to bring in over a billion dollars in additional tax revenues. Last week, Governor Haley proposed allocating $300 million of those new revenues to education.  Over half of those education funds would go toward increasing the "base student cost" by $80.  Unfortunately, that amount would still leave the state well short of fully funding its 1977 formula adjusted annually for inflation. According to SCnow, fully funding the formula would cost $520 million more than Haley is proposing.  The rest of her education proposal includes $20 million for leasing or buying new school buses, $13.5 million for attracting and retaining teachers in impoverished districts, $29 million for technology, and $11 million in targeted technology spending in poor schools.

 Get the House's full report here.

January 20, 2016 in School Funding | Permalink | Comments (0)

Friday, January 15, 2016

Reconstituting the Right to Education

Joshua Weishart's forthcoming article, Reconstituting the Right to Education, is now available on ssrn here.  Consistent with his first article, it is very thoughtful.  I have already found it useful in three of my forthcoming projects.  His abstract indicates:

Confronting persistent and widening inequality in educational opportunity, advocates have regarded the right to education as a linchpin for reform. In the forty years since the Supreme Court relegated that right to the domain of state constitutional law, its power has surged and faded in litigation challenging state school finance systems. Like so many of the students it is meant to protect, however, the right to education has generally underachieved, in part because those wielding it have not always appreciated its distinctive forms and function.

Deconstructed, the right to education held by children has been formulated doctrinally as both a claim-right, imposing affirmative duties on the state to act, and an immunity, disabling certain state action. These two strands — oft-manifested as the claim-right to educational “adequacy” and an immunity entailing “equality” of educational opportunity — once considered irreconcilable are actually interlocked by the right’s core, historical function to protect children’s liberty and equality interests.

And yet the right to education is ill-equipped to fulfill its protection function. Education clauses in state constitutions do not fix the standards for mutually enforcing equality and adequacy. This encumbers already-reluctant courts in addressing educational disparities and emboldens legislative resistance when they do. Appreciating that the right to education has a protection function entailing equality and liberty interests nevertheless suggests that it can be adjudicated in a way that unifies the demands and guarantees of substantive due process and equal protection. That union holds the potential to ameliorate the enforcement standards thereby reconstituting the right to education as a mainstay of reform.

January 15, 2016 in School Funding | Permalink | Comments (0)

Tuesday, January 12, 2016

The Every Student Succeeds Act: Eliminating Accountability, Handcuffing the Department of Education, and a Few Good But Optional Ideas

After having finally digested the new version of the Elementary and Secondary Education Act—the Every Student Succeeds Act—my overall appraisal is that the Act represents two steps back and half a step forward.  The steps backward are in regard to federal leadership, high expectations, and accountability.  The half steps forward are on various points that civil rights and other advocates have pressed for a decade or more.  But they are only half-steps because these civil rights “advances” are optional rather than mandatory.  Thus, they are more accurately “ideas” for states to consider, not actual advances students can expect to see.  Nonetheless, being ever the optimist, the very act of raising the ideas has the potential to prove important a decade for now when the Elementary and Secondary Education Act is again due for reauthorization.  It was, after all, the soft version of testing in the 1994 reauthorization (Improving America’s School Act) that paved the way for the 2002 reauthorization’s (No Child Left Behind Act) aggressive testing and accountability systems.

The easiest way to digest the new Act is to think specifically about what has changed and what has stayed the same.   A number of major things did remain the same:

  • The federal financial stake in education remained relatively flat. The new bill included a $500 million bump for Title I, but in the larger scheme, the increase is minor.  In 2002, NCLB included a major initial boost for Title I, which is what made the Act happen.  That no significant new funding is in the current Act may be a sign of how little progressive actions it contemplates.
  • The funding formulas through which Congress allocates Title I funds to states remained in place. Senator Burr had managed to get an amendment to the formulas into the final Senate bill, but it did not make it through reconciliation with the House.  More on this later.
  • The major aspects of the federal testing regime remain in place. States must test students in the same subjects (math, English Language Arts, and science) per the same schedule and frequency as was found in NCLB.  States and districts must also stick to the same reporting and demographic disaggregation as before.
  • The highest level articulation of the academic standards that students must meet remains the same: “challenging.” This was somewhat of a surprise given how maligned this phrase had been for its inability to ensure states adopted rigorous standards.  As discussed later, the bill indirectly addresses this issue in a new subsection that pegs “challenging” to career and college readiness.

The Act changed far more than it left the same.  Major changes were made to the substance and mechanisms for Accountability, the regulation of teachers, funding, and the Secretary and Department’s powers. 

Academic Accountability

As to the substance and mechanisms for accountability, the shift is from federal command and control to nearly complete state autonomy:

  • The metrics for whether states are offering quality education and ensuring sufficient student progress are now within the control of states. While the bill pegs “challenging” academic standards and assessment to college and career readiness, states do not have to actually submit the standards to the Department.  They need only give the Department assurances that their standards are challenging.  And as discussed later, the Secretary is extremely limited in objections he can raise to states’ education plans.
  • In terms of assessing student progress on standards, states must still consider test results, but states can afford as little weight to test results as they want and they can include almost any other metrics of academic progress and educational quality as they want (student engagement, teacher engagement, attendance, etc).
  • NCLB required that all students be proficient by 2014-15. That standard is go and is now replaced with anything, which is to say states can set their own progress goals.
  • NCLB also mandated particular interventions when schools failed to make adequate yearly progress toward full proficiency. By 2012, this meant that eighty percent of the nation’s schools were facing some sort of sanction.  Under the new bill, sanctions are few and far between.  Only those schools performing in the bottom 5% of the metrics that the state chooses will be subject to intervention and the particular interventions will be within the discretion of the state.  Equally notable is the fact that the portability of Title I funds for students attending a bottom 5% school did not make the bill.  In fact, the mandatory option of transfer (with or without funds) which was in NCLB is not in the current law.

Teachers

Changes for teachers are simple because there is almost no regulation of teachers at all in the law.

  • The requirement that all teachers of core subjects be high quality is gone.
  • Now states need only ensure that teachers are certified, but this includes alternative certification, which I read as meaning that if the state is willing to give some a piece of paper to teach, the person is certified. This, of course, has been a huge problem with recent teacher shortages.
  • During the waiver process, Secretary Duncan had mandated “effective” teaching, which was largely measure by a teacher’s students’ test scores. No such requirements exist in the new law.

Funding and Fairness

The most interesting developments in the law may be in regard to school funding.  While funding itself remained flat and the formulas went unchanged, the law included a tremendous amout of flexibility in how states spend federal dollars.  It also included a lot of progressive ideas about funding, although the adoption of the best of these ideas is entirely discretionary.  The bureaucratic and technical changes in funding include:

  • The law consolidates a lot of federal funds, issues more in the form of block grants, and lets states determine exactly how much they will devote to particular programs, activities, and schools.
  • The option to be treated as a “whole school,” meaning that Title I funds can be spent on activities that benefit the whole school not just low-income students, became a lot easier. Any school with 40% or more low income students can be a “whole school,” but even those falling below that threshold can apply for a waiver under a relatively lenient standard.
  • The federal requirements that states maintain their financial effort from the prior year and that federal dollars supplement, not supplant, local dollars have long been criticized as ineffective. The new law changes both standards, looking at a 2 year period on maintenance of effort rather than a 1 year period, and requiring states to affirmatively establish they have not supplanted local funds.  Whether either of these will be effective is unclear.  The language reads more specific than prior versions, but is still permissive in its general approach.

The eye-popping changes (for me) in funding include:

  • A requirement that states assess and address resource inequity in those bottom 5% schools it identifies. This also includes the ability to use school improvement grants (which is now a bigger pot of money) to address those resource inequities.  Ideologically this is huge line for the federal government to cross and provides a potential stepping stone for later expansions. Unfortunately, it only applies to intra-district resources and only to a small fraction of schools.  In other words, it leaves untouched the much bigger issues that get litigated in school finance cases.  Nonetheless, it does address an important loophole on comparability of resources that I have long criticized.  See here.
  • The law also includes a pilot program to support districts that want to adopt weighted student funding. This would help districts account for the varying costs of different demographic student groups and their needs.  Again, this is what school finance litigation demands.  The problem, however, is also the same: it applies only intra-district and to a small group of districts.  Even more problematic, the program relies on voluntary applications by districts.
  • The law responded to a decade of criticisms of the irrationality of the Title I funding formulas. See my criticisms here.  It does not mandate a change to the formulas, but if funds a professional evidence-based study of the formulas to determine who they advantage and disadvantage.  The study will propose changes to the formula if necessary. Whether those proposals are adopted are anyone’s guess.  Normally I would guess no, but much to my surprise, Senator Burr did manage to get a change to the formulas approved in the Senate bill (although it did not make the reconciliation bill).  Plus, the formulas are so irrational that they do not favor red or blue states, which makes change at least plausible.
  • The law maintained President Obama’s commitment of $250 million for pre-k. Our schools, of course, need far more than that, but it is important that this was not cut out of the bill.
  • Finally, the bill included a teacher pay-for-performance grant. I had thought this issue was going away, but maybe keeping it was part of the deal struck for doing away with teacher evaluation systems.

Secretarial Powers

Finally, the Secretary of Education was reduced to a line worker.  I argued here that Secretary Duncan lacked the statutory authority to impose the various conditions he attached to NCLB waivers and that to give a Secretary the ability to impose those sort of open-ended policy objectives would have been unconstitutional.  Someone must have agreed with me because no such powers exist in the current law.  The problem, however, is that this law overreacts to NCLB waivers, making this as much about Arne Duncan as it is about the proper role of the Secretary.  To say the Secretary should not act beyond his or her statutory and constitutional power is not to say the Secretary should have no power at all.  Yet, that is what this law does.  Under the law now:

  • The statutory bases upon which the Secretary can reject a state plan are very narrow.
  • If the Secretary plans to reject a state plan, the Secretary must specifically articulate the statutory basis and justify it.
  • After this, the state will get an opportunity to respond and resubmit. If the Secretary rejects the plan a second time, the state is entitled to a hearing.
  • In some instances, if the Secretary does not specifically reject a state plan within the required time frame, the law will treat the Secretary as having accepted the plan.
  • The Secretary cannot review or request changes to state’s academic standards. In other words, the whole common core standards/curriculum mess that came from the NCLB waiver is prohibited.
  • The Secretary cannot place conditions on state applications or consider criteria in making decisions that are not within the scope of the conditions and considerations of the Act itself. As I argued here, this was the fatal flaw in the NCLB waivers that render the conditions Duncan imposed beyond his statutory authority.
  • Nor can the Secretary attempt to indirectly achieve any of the forgoing prohibited objectives through policy guidance.

In short, the law sets up a system in which the presumption is that the states will get exactly what they want they want in their state plans and grants.  If somehow the Secretary manages to find a way to say now, a state will get multiple additional bites at the apple.

Size of the Department of Education

In conjunction with implementing the new provisions, the law directs the Secretary to specifically look at the work done and not done, needed and not needed, report on those findings, and reduce the size of the Department accordingly.  A smart Secretary can likely work around this, but this is clearly an attempt by Congress to shrink not just the power but the size of the Department, which presumably would further shrink its power.

Random Developments

Finally, the law includes lots of interesting and important additions that I would term as random rather than structural.  Those changes address charter schools, data, parents, and school discipline.  I will, however, leave those issues for later in the week.

January 12, 2016 in ESEA/NCLB, Federal policy, School Funding | Permalink | Comments (0)

Friday, December 11, 2015

Congress Again Fails to Tackle Equity in Revised Federal Education Law by David Sciarra and Molly Hunter

On December 9, 2016, Congress passed a bill reauthorizing the Elementary and Secondary Education Act (ESEA), and President Obama signed it today. The new "Every Student Succeeds Act" (ESSA) retreats somewhat from excessive high-stakes testing, and eases up on sanctions and labels for schools, teachers and students. Overall, the law moves away from narrow federal mandates on testing and accountability, leaving states to their historic and central role in educating our nation's public school children.

But once again, Congress has failed to confront the central problems that plague most of our 50 separate state school systems.

The new law, like the "No Child Left Behind" Act (NCLB) it replaces, gives the States free reign to continue the vast and debilitating inequities and disparities in their school systems. For our nation's most vulnerable children, ESSA is "same as it ever was."

Most states are shortchanging schools the funding and programs needed to give all children the chance to succeed, especially the growing numbers of children in poverty in districts and states across the country. Millions of children in our state systems attend schools deprived of the teachers, support staff and other resources essential to learning. Only a handful of states have made the effort to overhaul their finance systems to deliver those resources to schools and students most in need.

Congress could have required the states move away from funding schools based on dollars and politics to providing students and schools the resources necessary to achieve academically. Congress could have required states to build capacity to deliver high quality supports to,font help high risk schools and districts to improve. And Congress could have taken bold action to press states to dramatically expand access to high quality early education to give at-risk youngsters the opportunity for school readiness. Congress received these recommendations from the federal Equity Commission in 2013 but chose to ignore them.

Parents and advocates deserve credit for pushing Congress to retreat from NCLB's extreme test and punish provisions. But with the states now firmly in the education driver's seat, parents and advocates must turn their attention to their statehouses. Parents and advocates must now build strong campaigns for education equity in every state, demanding governors and legislators provide fair funding, support high poverty schools, and offer high quality preschool to every vulnerable three- and four-year old.

ESSA, like its NCLB predecessor, will do little to help every student succeed. But every student matters. It's time to let the state lawmakers responsible for our public schools know.

David G. Sciarra is the Executive Director of Education Law Center (ELC). Molly A. Hunter is Director of Education Justice at ELC.

December 11, 2015 in ESEA/NCLB, Federal policy, School Funding | Permalink | Comments (0)

Wednesday, December 9, 2015

Wisconsin Governor Asks Supreme Court to Bring the Superintendent of Education Under His Control

The Wisconsin Supreme Court has taken up an interesting case that questions the powers of the state superintendent of education.  In dispute is a 2011 law that requires all administrative rules to be approved by the governor.  Under that law, the governor is asserting power over the state superintendent.  But a state supreme court case from two decades ago, Thompson v. Craney, 546 N.W.2d 123, 134 (1996), held that the state superintendent is an independent head of the Department of Public Instruction.  The relevant constitution text was amended in 1902 to read:

The supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct; and their qualifications, powers, duties, and compensation shall be prescribed by law. The state superintendent shall be chosen by the qualified electors of the state at the same time and in the same manner as members of the supreme court, and shall hold his office for four years from the succeeding first Monday in July. The state superintendent chosen at the general election in November, 1902, shall hold and continue in his office until the first Monday in July, 1905, and his successor shall be chosen at the time of the judicial election in April, 1905. The term of office, time and manner of electing or appointing all other officers of supervision of public instruction shall be fixed by law.

The court concluded:

Our review of these sources demonstrates beyond a reasonable doubt that the office of state Superintendent of Public Instruction was intended by the framers of the constitution to be a supervisory position, and that the “other officers” mentioned in the provision were intended to be subordinate to the state Superintendent of Public Instruction. Because the education provisions of 1995 Wis.Act 27 give the former powers of the elected state Superintendent of Public Instruction to appointed “other officers” at the state level who are not subordinate to the superintendent, they are unconstitutional beyond a reasonable doubt. If changes such as those proposed in 1995 Wis.Act 27 are to be made in the structure of educational administration—and we express no judgment on the possible merits of the changes—they would require a constitutional amendment.

That the current state law is in direct contradiction of this precedent.  The state attorney general is asking the court to reverse Thompson and, thereby, bring the state superintendent under the control of the governor.  I am guessing the the odds on this are long.  The lower court, in a straightforward decision, has already ruled against the state.  As it remarked in closing,

We reject th[e governor's] argument for reasons that should be obvious by now. The argument's premise, that the Governor's new power conferred by Act 21 gives the Governor “no power to fashion the text of a proposed rule,” is a premise Walker and Huebsch do not attempt to explain or defend. So far as we can tell, it is a premise that ignores reality. It seems beyond reasonable dispute that a Governor at loggerheads with an SPI over the content of a proposed rule, or proposed rule change, could use the threat to withhold approval as a means of affecting the rule content. Moreover, the analogy to the Governor's power to veto legislation is unpersuasive. As here, the threat of a Governor's veto can shape proposed legislation toward the Governor's preference. And, by constitutional design, a Governor's veto can be overridden by the legislature. Here, the Governor's approval authority is not similarly limited.

The case also has implications on a related phenomenon in other states:  charter legislation that divests the state superintendent of educational authority.  The Washington Supreme Court struck down that legislation earlier this year.  What Washington and Wisconsin's legislature and governor fail to appreciate is that in those states where the superintendent of education is a constitutional officer, the state is not free to pass any education legislation that suits its fancy.

December 9, 2015 in Charters and Vouchers, School Funding, State law developments | Permalink | Comments (0)

Monday, November 23, 2015

Is the Deal to End Pennsylvania's Four-Month-Long Education Budget Stand Off Falling Apart?

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.

November 23, 2015 in School Funding | Permalink | Comments (0)

Wednesday, November 18, 2015

Massachusetts Attorney General Debunks Plaintiffs' Constitutional Demand for More Charters

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.

 

November 18, 2015 in Charters and Vouchers, School Funding | Permalink | Comments (0)

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.

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November 18, 2015 in School Funding | Permalink | Comments (0)

Wednesday, November 11, 2015

Virginia Schools in Worse Position Now Than Before the Recession

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.

November 11, 2015 in School Funding, Teachers | Permalink | Comments (0)

Thursday, November 5, 2015

Big Victory for School Funding in Pennsylvania, Maybe

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.

November 5, 2015 in School Funding | Permalink | Comments (0)

Wednesday, November 4, 2015

Rethinking Public Education Litigation Strategy

An interesting new student note, Rebecca I. Yergin, Rethinking Public Education Litigation Strategy: A Duty-Based Approach to Reform, 115 Colum. L. Rev. 1563 (2015), is now available on westlaw.  She offers this abstract:
With a persistent and, in some places, increasing education achievement gap falling along lines of race and class, advocates have often turned to the courts to improve this nation's public schools. Public law litigation has historically helped to remove some of the most invidious barriers to improvement, but traditional desegregation and school-finance lawsuits have not gone far enough to close the gap. This Note thus seeks to propose a new approach to public law litigation directed at reforming school systems. It presents the principle of a “duty of responsible administration,” which has emerged in other public contexts and requires administrators and officials to assess, monitor, and revise practices that appear to violate civil rights values. In order to explore the application of this duty in the public education context, this Note focuses on one state with a large achievement gap: Connecticut. It presents the state's education landscape and hypothesizes a lawsuit, following the approach proposed by the duty of responsible administration. In doing so, the Note argues for a reconceptualization of the role courts could play in reforming and improving this country's education system.

November 4, 2015 in School Funding | Permalink | Comments (0)

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.

 

October 30, 2015 in School Funding | Permalink | Comments (0)

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

Julie Mead's new article, The Right to an Education or the Right to Shop for Schooling: Examining Voucher Programs in Relation to State Constitutional Guarantees, 42 Fordham Urb. L.J. 703 (2015), explores the question of "at what point, if any, does a state's funding of private education subvert its constitutional obligation to provide adequately for public education, thereby converting a child's right to an education to merely the right to shop for one?"  The key issues courts have addressed in answering this question are:
 
First, the cases draw attention to the distinction between a constitutional obligation and a discretionary benefit. Second, the reasoning makes clear the relationship between school funding and legislative fulfillment of constitutional obligations. Third, the cases demonstrate that the source of a school's funding does not define its public-ness or lack thereof. Finally, the cases raise the issue of uniformity in the public sector as one measure of a legislature's execution of its constitutional mandate.
 
Based on her review of the cases, Professor Mead concludes that
The state constitutional obligation of state legislatures to fund and nurture the common public school is paramount and may not be subordinated to a legislative desire to subsidize the private choices of individual parents. Legislatures may enact private school choice provisions, but state constitutions direct that legislaturesmust provide public schools. State constitutions have clearly established that children have a genuine right to a quality public education, not merely the privilege to shop for schooling in the educational marketplace.
 
 
 



 

October 29, 2015 in Charters and Vouchers, School Funding | Permalink | Comments (0)

Tuesday, October 27, 2015

Pre-school to Be the First Victim of Pennsylvania's School Funding Fight

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.

October 27, 2015 in Pre-K Education, School Funding | Permalink | Comments (0)

Friday, October 23, 2015

The Highest and Lowest Funded Schools in America

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.

October 23, 2015 in School Funding | Permalink | Comments (0)

Thursday, October 22, 2015

Will Pennsylvania Schools Close?

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.  

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October 22, 2015 in School Funding | Permalink | Comments (0)