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:
- To facilitate the discussions and work of the House Task Force and the Senate Special Subcommittee, and to assist this Court, the parties will engage a panel of three experts (the expert panel) by October 15, 2015. The panel will be tasked with the responsibility of identifying the educational needs of students in the Plaintiff Districts by: (1) examining the various defects detailed in the Court's analysis in Abbeville II—including alarmingly-low student and school district performance, insufficient transportation, poor teacher quality, high teacher turnover, local legislation, school district size, and poverty; and (2) proposing remedies which address these educational needs and constitutional defects. The Defendants shall select one of the experts and bear the cost of that expert. The Plaintiff Districts shall select one of the experts and bear the cost of that expert. The third expert shall be the State Superintendent of Education, who has agreed to serve on the panel. These experts will bring their expertise to bear and to serve as facilitators in helping marshal information and obtain proper input from the various stakeholders, including the Plaintiff Districts, the Defendants, the House Task Force, and the Senate Special Subcommittee. The expert panel will be granted access to meetings with such office holders, school districts, and state personnel as is necessary to perform their work.
- By February 1, 2016, the Defendants will present to the expert panel their plan for implementing a constitutionally compliant education system, and will send a copy of the proposed plan to the Plaintiff Districts and the Court. Proposed legislation supporting the plan shall be drafted prior to the meeting and presented at the meeting. Staffing and other critical needs may require time to fully implement the plan, but the plan and proposed legislation shall specifically provide reasonable dates for their full implementation.
- By March 1, 2016, the Plaintiff Districts will present to the expert panel their reaction to the Defendants' proposed plan.
- By March 15, 2016, the expert panel will present a written report that includes its assessment of whether the Defendants have proposed a viable plan for remedying the constitutional violations and provide it to the parties and the Court. The report will include a description of the panel's recommended methodology for assessing constitutional compliance. Should the experts disagree on parts of this report, the experts shall so note their disagreement in the report.
- The Court will conduct a de novo review of the Defendants' plan and the expert panel's report and recommendations on implementing a constitutionally-compliant education system. As the Court assesses whether the plan and the report provide a remedy for the constitutional defects identified in Abbeville II, it should give due consideration to the General Assembly's prerogative to choose the methodology by which the constitutional violation shall be remedied, and give due consideration to the expertise of the panel members chosen.
- The Court will issue an order after conducting its review of the plan and the expert panel's findings stating whether the plan is a rational means of bringing the system of public education in South Carolina into constitutional compliance, and whether the Court's continued maintenance of jurisdiction is necessary.
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.
Thursday, August 20, 2015
As ofAugust 2015, school funding litigations seeking better educational opportunities for underserved students continue in state trial courts and supreme courts across the country, including in Arizona, Colorado, Connecticut, Florida, Kansas, New Jersey, New Mexico, New York, Pennsylvania, South Carolina, Tennessee, Texas and Washington.
In the latest development, the Washington Supreme Court imposed a $100,000 per day sanction on the State, in the ongoing McCleary case.
Both the South Carolina and Washington Supreme Courts declared their states' school funding systems unconstitutional, in Abbeville v. State (S.C. 2014) and McCleary v. State (Wash. 2012). Both supreme courts retained jurisdiction. After the Abbeville decision, the South Carolina Senate and House established task forces to study the situation and recommend remedial measures in time for their 2016 session.
In the face of a huge tax cut, Kansas slashed funding to its schools, which led to the Gannon v. State of Kansas lawsuit. Plaintiffs claimed and state courts have agreed that the cuts made the state's school funding system inadequate and inequitable, in violation of the Kansas Constitution. The state resolved the equity problem in 2014, but made additional changes in the 2015 session. After a hearing, the district court found the state funding system is now violating both the adequacy and equity requirements of the constitution. That decision is on appeal to the Kansas Supreme Court.
Friday, August 14, 2015
The Washington Supreme Court has lost its patience with the legislature. In 2012, in McCleary v. State, the court held that the state had failed to comply with its constitutional duty "to make ample provision for the education of all children residing within its borders." The court left it to the legislature to devise a reasonable solution to the flaws in its funding system. Since then, the court has forced to order the state to comply with its duty to act within the deadlines the legislature set for itself. The state has, nonetheless, failed to comply with its own plan. Last year, the court held the state in contempt for its failure. Yesterday, the court took the ultimate measure, imposing a fine of $100,000 a day for each day the state remains in violation of the court's January 9, 2014 order. This step has proven successful in places like Arizona, which drug its feet for years until the court imposed a financial sanction, but then acted within a matter of a couple of weeks. One can only for the same result in Washington.
The court's order is here.
Tuesday, August 4, 2015
Last week, trial judge, William Singletary, ruled that Mississippi is not required to fully fund the state's education budget. The budget, when fully funded, is calculated to distribute enough funds to allow each school district to meet mid-level academic standards. The formula for the education budget was set in the Mississippi Adequate Education Program of 1997. However, the budget has not been fully funded since 2010. Last year, former Governor Ronnie Musgrove, on behalf of 21 school districts, filed suit seeking to enforce the funding law and recoup more than $240 million – the amount the budget was allegedly shortchanged over the past six years.
Friday, July 24, 2015
A new Century Foundation report examines what worked and did not work in those schools that received federal School Improvement Grants (SIGs) starting in 2009. Through funds allocated in the economic stimulus package, the Department of Education has been able to direct about $3.5 billion toward the nation's lowest performing schools. The grant awards for individual schools amounted to as much as $2 million a year for three years. The study finds:
Thursday, July 16, 2015
Sorry for the multiple posts, but ESEA reauthorization is moving in its furious last moments in the Senate with big news. I have commented over the past few days about the enormous political hurdles to changing Title I's funding formulas and the necessity to do so. Apparently, Senator Burr worked some magic an hour or so ago because his amendment to alter the formulas for the first time in decades passed. For those who do not know, Title I funds are the major source of federal funds in public schools and they are the teeth that force or carrots that encourage states to comply with all of the educational policies in the Elementary and Secondary Education Act.
I had assumed the likelihood of a formula change was so small that I had not dug into the details of the new formula. The full reauthorization bill must still pass the Senate, which will vote later today. If it passes, I will dig into the details tomorrow, although it is still highly possible that the formula change will not make it through a reconciliation process with the House.
There is, however, one huge caveat. The only way he got the amendment through was to indirectly delay the implementation of the change. It would only apply to Title I funds in excess of $17 billion. We currently set at $14 billion. So its effect would not be felt for years. But it is a clever solution to the underlying problem of the warring winners and losers.
More on why the funding formulas need reform here.
More on the current vote here.
Thursday, July 9, 2015
This release comes from the Campaign for Educational Equity at Teachers College, Columbia University:
In 2014, New Yorkers for Students' Educational Rights (NYSER) filed a lawsuit on the behalf of New York State's public school students charging that the state is neglecting its constitutional duty to ensure that every student receives a "sound basic education." In NYSER v. State of New York, plaintiffs argue the state has failed to implement the school-funding reforms that it committed to adopt in response to the Campaign for Fiscal Equity (CFE) court decisions.
To move the case ahead more quickly, earlier last week, NYSER plaintiffs filed a "motion for summary judgment" that asks State Supreme Court Justice Manuel J. Mendez to bypass a lengthy trial and declare, based on the state's indisputable actions and inactions in recent years, that the state has violated the Court of Appeals' CFE orders and has failed to achieve constitutional compliance.
Wednesday, July 8, 2015
The final education budget adopted, in June 2015, by the Nevada Legislature for the 2015-2017 biennium does little to improve school funding overall and reduces most districts' general operating budgets for the 2015-2016 school year, an analysis by Educate Nevada Now! (ENN!) shows.
Under the "Nevada Plan," which is the state's 1967 school funding formula still in effect, the general operating budget represents the amount of state and local funding available to each district to support the basic education program for all students. A key component of the general operating budget is the amount of state aid and local revenue allocated by the Legislature to each district, known as the Basic Support Guarantee (BSG). The BSG accounts for 75-80% of districts' operating budgets.
An analysis of the budget adopted by the Legislature in June shows a significant decrease in per pupil BSG in the largest district in the state, the Clark County School District (CCSD), which serves about 322,000 children, over 70% of the state's entire student population. CCSD expects to receive $5,512 per pupil, $15 less than the 2014-2015 school year. In Washoe County, the state's second largest school district, funding remains nearly flat. And, some rural districts are also bracing for less per pupil funding in the coming school year.
Monday, July 6, 2015
An article in the Atlantic, drawing on the research of Pamela Cantor, says we can. Cantor frames the problem as one of childhood trauma. She finds that poverty has effects on brain and other development that mirrors that of other types of childhood trauma.
[Poor children] had all experienced loss, violence, neglect, or other adversity. And no matter what traumatic events they had experienced, the results were similar: they showed up distrustful, easily triggered and distractible. I couldn’t make the adversity they faced go away. But I could and did change how they surmounted that adversity.
What I saw in Washington Heights students were the same manifestations of trauma I had seen in my patients. I saw how adversity gets under the skin, into the brains and bodies of children through the mechanisms of stress. And I saw that when lots of kids experience high levels of stress together, it produces a very specific collection of challenges to a school, to a classroom, and to the students themselves.
The solution she says is to develop interventions aimed at the trauma of poverty, rather than chasing the illusive solution to poverty itself. In a separate paper, she proposes
Monday, June 29, 2015
State Court Holds That Pennsylvania Department of Education Must Investigate Curricular Deficiencies in Philadelphia
In September 2013, a group of parents filed a lawsuit in state court against the Pennsylvania Department of Education, alleging the Secretary of Education violated her mandatory regulatory duties by failing to carry out her duty to “receive and investigate allegations of curriculum deficiencies.” 22 Pa. Code § 4.81. Last week, the trial court in Allen v. Dumaresq issued an opinion agreeing in large part.
The lawsuit arises out of parents previous attempts to have the Secretary intervene in Philadelphia's under-resourced schools. Parents had previously filed 825 complaints with the Department regarding the reduction of thousands of staff positions and expenditures in Philadelphia schools. The complaints ranged from overcrowded classrooms, inadequate counselor staffing, numerous reductions in art, foreign languages, and physical education in the curriculum, and unsanitary toilet conditions. Petitioners claim that these conditions impede the delivery of the curriculum and students’ ability to learn it. The lawsuit claims that the Secretary never responded to many of those complaints. Those to which she did respond revealed a failure to carry out her duty. The Secretary simply sent out letters calling the allegations a “local matter” and that their allegations would be forwarded to the District.
The trial court reasoned that complaints regarding facilities and staff were non-curricular and, thus, the Secretary was not bound to investigate them. But allegations of reduced access to art, foreign language courses, and physical education were curricular matters. Thus, the Secretary was obligated to receive, investigate and correct these allegations if necessary.
Wednesday, June 24, 2015
Things are looking up in Pennsylvania. Earlier this year, I posted on the state forming the Basic Education Funding Commission to study how the state might distribute education funds more fairly across school districts. The Commission released its recommendations last Thursday. It proposed a new funding formula that weighs student and community factors such as poverty levels, number of English language learners, charter school enrollment, school district size, average income per household, and a district’s ability to raise funds. The formula would use a three-year average to account for student population to help account for school district growth as well.
This week, the Senate Education Committee voted unanimously to approval the Commission’s formula. The formula will now move to the Senate for consideration and hopefully a vote. The state is still a long way from the finish line, but in a state that distributed education funds without any formula for years, that repealed a short-lived formula when its newest governor took office, and that has allowed Philadelphia schools to languish with huge budget shortfalls and basic resource needs over the past two years, this is a big step forward. Stay tuned.
Wednesday, June 10, 2015
The Education Law Center's annual report on school funding fairness is now available. For those unfamiliar with the past reports, they provide a sophisticated analysis of all 50 states that breaks school funding into four distinct metrics: the adequacy of the actual funding level in each state; the extent to which a state fairly distributes the funds it has, regardless of the adequacy of those funds; the effort a state exerts to fund education (a poor state can try hard and still produce inadequate funds); and the extent to which public schools are educating all of the states students and, if not, how those students differ from those in private school.