Wednesday, June 22, 2016
Last week, the Nashville's school board decided join Chattanooga, Memphis, and a handful of other school districts in suing Tennessee over its school funding formula. While the other districts have filed broader complaints that focus on whether the state or local districts should pay for things like the majority of teachers’ salaries, Nashville is specifically suing over the costs to educate English language learners who compromise about 43 percent of the district’s student body. While the state has made some boosts to the education budget recently, such as adding $14 million to ELL spending, the increase do not fully address the global funding problems that the other districts have raised in their lawsuits.
In both the Shelby and Hamilton County Schools suits, the school systems claim all areas of the schools are underfunded and not just ELL funding. The school districts allege that the State is violating its own statutes by not funding the requisite amount of classroom costs and instead making the districts cover the difference. More on the Memphis lawsuit here; More on Hamilton County here.
Earlier in the year, I discussed here the potential difficulties of having more than one school funding lawsuit proceeding in the state at the same time and a trial court's refusal to certify one of the earlier lawsuits as a class action. Now, with three of the state’s larger school districts on board, consolidating the cases into one is even more compelling. A remedy in regard to any one of these districts will significantly impact the entire state's education budget. A remedy in regard to all three would likely require the state to start from scratch in rethinking its formula and budget. With that in mind, other districts are likely to join or intervene at some point. But so long as the cases remain separate, the question would remain as to which lawsuit to join. Then again, maybe the plaintiffs are playing a more complicated strategy, hoping to put more pressure on the state by starting several smaller fires. I have not seen that before, but it is a plausible strategy.
Friday, June 17, 2016
Chalkbeat reports that the Denver school board has voted unanimously for a new bond package and mill levy override that would raise an additional $628 million in taxes for school construction and other education programs. To take effect, it has to be approved by the voters in November. It would "allow Denver Public Schools to build new schools, renovate old ones, install heat mitigation systems such as air conditioning in its hottest schools and increase the number of schools able to provide devices such as computers to every student." In addition, the Board approved the creation of two new charter schools and to allow three others to take over space in current school district facilities. The charter expansion in Denver has been all over the news as of late and raises a whole new host of issues. I won't rehash those here, but rather leave them to the problems outline here and here. The point of this blog is to contrast Denver's package with the one South Carolina just turned down.
South Carolina is currently under order from the state supreme court to comply with its constitutional mandate to ensure minimally adequate public education. Denver is under no such order. To the contrary, the Colorado Supreme Court, albeit under weak reasoning, has recently rejected two different constitutional challenges to the state's failure to fund education. Yet, Denver is poised to come up with $628 million in new funds just for its school district alone. The South Carolina Senate just turned down a $200 million bond package that would have covered the entire state. Denver has approximately 79,000 students. South Carolina has in excess of 700,000. While the South Carolina House already approved the bond package, the South Carolina Senate indicated it needed more time to consider it. It now adjourns for the year, which means it will, at best, consider it in 2017, more than two decades after the lawsuit against the state was first filed.
Wednesday, June 15, 2016
Over the past few years, Pennsylvania schools have experienced what may have been the biggest financial crisis of our lifetime. For those who follow this blog, the schools went almost the entirety of this past school year without a budget. As a result, some closed earlier for the winter break, opened late, eliminated programs, asked teachers to work without paychecks, and a parade of other horribles. Just weeks ago, the Erie School District indicated it might permanently close the doors of its schools, presumably dissolving itself and waiting to be absorbed by another district.
After more than a year of wrangling, the state has finally adopted a new school funding formula that will purportedly address the problems of high need districts. On its face, the formula almost sounds too good to be true. The formula has a heavy weighting system that accounts for poverty, student disabilities, and English Language Learner needs, among other factors. Schools are funded on a per pupil basis and these weightings allow districts to, in effect, double, triple, and quadruple-count some students for purposes of funding. According to Newsworks, this means, for instance, that while York's actual enrollment is 7,737, the "final enrollment figure used to decide how to divide money is adjusted up to 52,449." See here for an interactive map that provides the actual and adjusted enrollment for all the state's districts.
But there is one enormous catch. Newsworks indicates that the money that flows through this new formula "reflect[s] only a tiny fraction of the state's entire basic education subsidy. Lawmakers plan to use the formula to disperse only new increases in aid – which, in the near term, will barely affect the disparities that were created through decades of non-formula-based distributions, when not even shifts in enrollment were tracked. This year, of a $5.6 billion budget, the general assembly sent about $152 million through the formula — under 3 percent."
This surely made the formula palatable to those wealthy districts that benefit from old system, but the state is setting itself up to create an overall funding scheme that is entirely irrational. The federal funding formulas for low income students illustrate this point the best. As it currently stands, there are four separate and complex funding formulas at the federal level, along with a host of other grant programs. Each time Congress came up with a potentially better formula, it added it to the other formulas, rather than replacing older flawed formulas. As demonstrated here, the problem is that these four formulas now counteract one another in myriad ways and the result is an overall funding stream that produces random and irrational results. No relevant constituency is consistent advantaged or disadvantaged.
If Pennsylvania, like Congress, does nothing more than add a good formula on top of other dominant flawed formulas, it is wasting everyone's time and doing nothing to solve the underlying problem. If Pennsylvania plans to phase out the old formulas in future years and drive the lion's share of money through the new formula, it may have come up with something that actually helps students who need it. Unfortunately, Pennsylvania does not have a good enough track record to hold out too much hope on the latter.
Tuesday, June 14, 2016
Two weeks ago, the Kansas Supreme Court struck down the state's school funding scheme again. The Supreme Court also upped the stakes in the long running battle to get a recalcitrant state legislature and governor to comply with the constitutional obligation regarding education: it set a June 30 deadline for action. If the state does not act, the Court indicated it would, in effect, shut down schools. As discussed here, Kansas is one of just two courts that have stood strong against education funding cuts over the past eight years. If Kansas (or Washington) fails, there may be little hope elsewhere. Courts cannot win these battles by cowering away from them. In fact, cowering only undermines courts over the long term. Yet, standing strong comes with its own risk: that states will just ignore courts all together.
For now, at least, the Kansas Supreme Court's willingness to stand its ground is finally paying off. Governor Brownback has called a special session of the legislature to implement a solution and the grandstanding appears to be largely over. The Wichita Eagle reports,
“They’re basically saying $38 million more and you’re set,” Brownback said, referring to the amount it would cost to restore the state’s old formula for equitable funding. Lawmakers discarded that formula when they adopted a block grant form of funding last year.
Brownback signed the proclamation for a special legislative session – the 23rd in the state’s history – on Wednesday afternoon. He noted he does not have the power to tell lawmakers what to do – he can only call them back for a special session.
As the primary ringleader for defunding schools, Brownback cannot entirely concede and still save face. For instance, he said, “What I find so irritable about this is that the remedy that the court is putting in place, which is to shut the schools down over a $38 million dispute … just seems so completely out of bounds.” But what I find in this and the above statements is a resignation to the fact that the time has come to fund schools, whether he likes it or not. Some rank and file members are predictably grumbling about defying the courts and another is suggesting a constitutional amendment. An amendment is the one legitimate means to avoid funding schools, but at this point, neither an amendment nor outright defiance seems likely. Of course, anything could or could not happen between now and June 30, but my initial read is that Kansas's Supreme Court has run a very dangerous gauntlet to preserve the constitutional right to education in Kansas and lend support to the continued movement in other states. For more on the overall stakes in this battle, see here.
Tuesday, May 31, 2016
Kansas Supreme Strikes Down State's Funding Scheme Again, Setting Important Example for Others to Follow
Back in February, the Kansas Supreme Court ordered the state to remedy its unconstitutional financing system (for the umpteenth time). The state passed responsive legislation, but last week,the Kansas Supreme Court struck it down as well. For those who have not followed the school finance battles in Kansas, this is not the story of a runaway court, but a runaway legislature that has refused to recognize the authority of the court. The earliest of the Kansas Supreme Court's decisions were mild by most accounts. But rather than comply, the legislature has ignored its duty to provide its students with equal educational opportunities. It has even gone so far as to threaten the funding and appointment process of the judiciary itself.
The Kansas Supreme Court, however, has not flinched from its responsibility to adjudicate facts and apply the law. In this respect, the Kansas Supreme Court is becoming an outlier in school funding and quality cases. As detailed here, courts have increasingly shied away from enforcing the constitution and confronting legislatures since the recession. Even once those tax revenues rebounded, the trend continued. For instance, two weeks ago, the Texas Supreme Court overruled a trial court's order in support of low wealth districts, in litigation that has spanned for decades and almost uniformly supported the position of more equity and adequacy. The less than compelling reasoning in the Texas Supreme Court's new opinion suggests the court is setting a new and troubling course.
This is what makes the Kansas Supreme Court's opinions last week and earlier this year so important. They (along with recent opinions from Washington state) may represent the best and last hopes from separation of powers between the legislature and courts, the enforceability of the constitutional right to education, and the rule of law. If the rule of law cannot prevail in Kansas, it likely only spells more bad news for schools in other states.
As I argue in Averting Educational Crisis, there is nothing easy about forcing the state to comply with its duty to deliver equal and adequate education. That difficult job grows exponentially harder during times of economic crisis, so hard that it is nearly impossible at times. That job, however, does not become any easier by running from it. To the contrary, the more courts look the other way, the more they look like political actors and loose the institutional authority and respect necessary to have states concede to the rule of law. In other words, when courts refuse to enforce the constitution today, they jeopardize it for years to come.
The Kansas Supreme Court clearly has a sense of what it is fight for. It wrote:
The political necessities of the legislature are similarly irrelevant to our review. The constitution of the people of Kansas does not change its requirements based on legislators' support, or nonsupport, of proposed legislation. Rather, the Kansas Constitution "is the supreme and paramount law, receiving its force from the express will of the people." Just as the legislature has the power and duty to create a school funding system that complies with Article 6, it is this court's power and duty to determine whether an act of the legislature is invalid under that constitution, i.e., if the legislature has met its duty. A law's political expediency or level of support will not shield it from such review. After considering all of the arguments, we conclude the State has failed to meet its burden on this issue in the remedial phase of this case. Specifically, the hold harmless provision fails to sufficiently mitigate the increased inequities created by applying the capital outlay aid formula to the LOB funding system. At best, H.B. 2655 does no more than take away funds from the districts, then give the funds back, simply to restore the same level of inequity we ruled unconstitutional in Gannon II, 303 Kan. at 720. Additionally, it worsens disparity in accessing LOB funds among aid-qualifying districts.
Get the full opinion here.
Wednesday, May 25, 2016
New Jersey's Failure to Assess Effects of Charter School Expansion on Already Underresourced Newark Schools Moves to Court of Appeals
This from the Education Law Center:
Acting on behalf of Newark school children, Education Law Center has filed an appeal of NJ Commissioner of Education David Hespe’s February 2016 approval of a massive enrollment increase in seven Newark charter schools over the next five years.
At issue in the appeal is the data and research evidence presented by ELC to the Commissioner demonstrating that expanding charter enrollments at this time would exacerbate the budget crisis in the State-operated Newark public schools (NPS) and trigger even deeper cuts to teachers, support staff and programs in already under-resourced NPS schools. ELC also presented evidence to show that expanding charters would further concentrate at-risk students in district schools, especially students with disabilities and English language learners (ELLs). These students require additional programs and interventions that have been reduced and cut in NPS schools over the last several years.
“This appeal is not about the merits of charter schools or district schools, but rather about the State’s overarching obligation to ensure a thorough and efficient education for all public school students in Newark,” said David G. Sciarra, ELC Executive Director. “This appeal raises the abject failure of the Commissioner to perform his mandated constitutional duty to make certain that before charter schools can expand, all Newark children have the resources they need to succeed in school, whether they attend a district or charter school.”
“The Commissioner simply ignored the overwhelming evidence in the record that a further increase in charter enrollment at this time will harm children and schools throughout the city,” Mr. Sciarra added.
In their applications for renewal, seven Newark charter schools submitted requests to Commissioner Hespe that, taken together, would greatly increase overall charter enrollments over the next five years. The Commissioner approved these requests without explanation and without providing reasons. The approved charter increase totals nearly 9,000 additional students over five years, from just under 10,000 to almost 19,000 students.
Several of the charters sought substantial increases. For example, Team charter school, operated by the New York-based KIPP network, secured the green light to increase enrollment from 3196 to almost 8000 students and to add up to six new charter schools. The Commissioner’s approvals will almost double the current enrollment in these seven charters by the 2020-21 school year.
The approved expansion will also increase the seven charters’ share of Newark’s total charter population from 20% to approximately 37%. If enrollment in the district and in the fourteen other charters remains stable, the Commissioner’s decision will mean that by 2020-21, nearly half of all Newark’s school children will be enrolled in the charter sector.
Before the Commissioner, ELC submitted extensive comments on the charters’ requests for expansion, including detailed research documenting how the State’s decision to rapidly expand charter enrollments from 2009 through 2015 has put the NPS budget in crisis. The data shows charter enrollments nearly tripled to 12,885 students during that period, while the percentage of students with disabilities and English language learners (ELLs) in NPS schools increased significantly.
Further, while the NPS budget has been flat since 2011 as a result of the State’s failure to fund New Jersey’s school funding formula, payments from the budget to charter schools have risen dramatically to $225 million, representing 27% of the total NPS budget. ELC also documented that the combination of flat budgets and rising charter payments has triggered severe reductions in spending on regular classroom instruction, guidance and other support services, and special education and bilingual education in NPS schools.
The NJ Supreme Court, in several rulings, has imposed upon the Commissioner an affirmative constitutional obligation to carefully evaluate the impact that opening or expanding charter schools will have on the loss of funding and the segregation of students in districts served by the charters.
“The Commissioner must meet his constitutional obligation to assess and determine the impact that the loss of funding from increased charter payments will have on the ability of the Newark district to provide a thorough and efficient education to all public school children,” said Michael Stein of Pashman Stein in Hackensack, the firm representing ELC on this appeal. “The Commissioner did not evaluate the impact of charter expansion on the NPS budget, even though ELC presented a compelling record that the expansion would mean less funding, more cuts to essential staff and programs, and the further concentration of students based on disability and English language proficiency in NPS schools.”
Public Advocates has released a new study analyzing the reporting practices of school districts in California. The report suggests a potential mismanagement or misuse of school funds intended to provide supplemental resources for high-need students. State law defines high-need students as those who come from low-income families, are English language learners, or in foster care. It requires that schools receiving supplemental funds for high-need student to use the funds to provide new or improved educational services. This report, interestingly, focuses on districts whose overall student population is not necessarily predominantly high-need. These districts are required to disclose how they spend states funds. An executive summary of the finding includes:
- Districts are not properly justifying their use of supplemental and concentration funds as principally directed and effective to serve the high-need students who generate those dollars.
- Many districts fail to clearly explain how they are meeting their obligations to increase and improve services for high-need students in proportion to the additional funds these students generate.
- Some districts appear to significantly underspend supplemental and concentration dollars compared to their LCAP plans without explanation and appear to fail to carry over that obligation to subsequent years.
- LCAPS generally fail to capture how supplemental and concentration dollars are being spent at school sites.
- Charter schools appear to be spending supplemental and/or concentration funds without any oversight whatsoever.
Roxanne Hoegger Alexander, report co-author and volunteer attorney with Public Advocates, further explains: “We have an example of Orange Unified, a district that spends 79% of its supplemental funds districtwide. In this district, one school with only 11% of high-need students appears to be benefitting similarly to a school across town with 96% high-need students. This isn’t what the law intended. Districts need to show that spreading the funds across the entire district is the most effective way to increase or improve services for high-need students but they aren’t doing it.”
Public Advocates is urging the state to pay closer attention to how non-concentrated districts budget and spend its supplemental funds – this is of particular importance with the upcoming Local Control Accountability Plans update. In particular, the report recommends:
- For “local control” to work, the state must invest in building the capacity of school districts and stakeholders to effectively garner community input into resource allocation and the cycle of continuous improvement reflection, including by offering more resources and guidance.
- The State Board of Education should issue guidance to County Offices of Education and Local Educational Agencies that will facilitate fiscal transparency and local accountability by clarifying, among other things, that an LCAP is not acceptable under the Local Control Funding Formula (LCFF) if it does not capture all the district’s actions and expenditures for all students on the eight state priorities and thus reflect nearly all LCFF funds the district receives.
- The State Board of Education and County Offices of Education must take measures to ensure that districts and charters are properly justifying and accounting for the extra dollars they receive to increase and improve services for high-need students.
- The State Board of Education should adopt common sense revisions to the LCAP Template that clarify the obligations of districts and charters while improving the accessibility and transparency of information for community stakeholders.
Thursday, May 19, 2016
New Study Connects the Dots Between School Funding Choices and Student Achievement, Highlighting the Dangers of Retrenchment in Courts
The Educational Testing Service (ETS) released a new study by Bruce D. Baker, Danielle Farrie, and David G. Sciarra, analyzing the connections between improving school finance systems,improving educational outcomes and closing achievement gaps. After working through multiple factors and layers of data, the report zeroes in on the effects of school funding on pupil-teacher ratios and salaries. It them shows how those two factors relate to the achievement gap between low and middle-income students. The findings are rather impressive:
- These higher spending levels translate into higher statewide staffing levels—more teaching staff per pupil.
- These higher spending levels translate into more competitive statewide teacher wages.
- Increased targeted staffing to higher poverty schools within states is associated both with higher measured outcomes of children from low-income families and with smaller achievement gaps between children from low-income and children from non-low-income families.
More specifically, they "show that the level and distribution of pupil-to-teacher ratios are highly and consistently sensitive, both across states and over time, to changes to the level and distribution of school district current spending; that is, more spending, holding other factors constant, drives lower pupil-to-teacher ratios, and fairer spending across districts within states drives fairer pupil-to-teacher ratios. Spending also drives the competitiveness of teacher wages. States with higher spending have more competitive wages, all else being equal. And as one might expect, available spending and the equity of that spending remain contingent on the revenues that support that spending. Increased state support provides the opportunity for improved equity of current spending, whereas the stability of both state and local revenues dictates the overall level of spending."
The point about sensitivity to change "over time" is key to appreciating the significance of the deep cuts in education funding since the recession and the failure to replenish those funds even once state tax revenues rebounded. As I argue in a recent article, courts would normally serve as the check against states' wholesale abandonment of their constitutional duty to deliver equal and adequate educational opportunities. Unfortunately, as the Texas Supreme Court decision from last week shows, courts are increasingly shying away from their duty. As they do so, they place the very right to education in jeopardy both in the short and long term--the effects of which will be far worse than the legislative stand-offs that courts are seeking to avoid now. A full discussion of this new trend is available here.
Monday, May 16, 2016
Texas Supreme Court Finds $3.6 Billion Shortfall in Education Means Nothing: A Sign of the Times or New Wisdom?
On Friday, the Texas Supreme Court rejected plaintiffs' claim that the state's schools funding system is unconstitutional. In doing so, it reversed a trial court that had found in plaintiffs' favor based on extensive evidence of inequality and underfunding in the state's schools. Plaintiffs have lost constitutional challenges to states' school funding systems before, but the Texas decision is truly remarkable.
First, the Texas decision may be but the newest signal of a troubling trend that has been developing since the recession. During the recession, courts began rejecting plaintiffs' substantive claims at a higher rate. Even with state revenues now above pre-recession levels, the new judicial approach lingers on. As analyzed here, this new approach (if it is one) is unjustified and places the future of education rights in serious jeopardy. Texas fits well within this shift. The state supreme court had consistently accepted adequacy and equity challenges in the past. In fact, plaintiffs had been the Texas Supreme Court on at least six prior occasions in the attempt to force the state to comply with both new and previously articulated requirements, winning several times. This last Friday, the Texas Supreme Court seemed to set a new course in the litigation.
Second, the facts in Texas are more egregious than most. In 2005, the Texas Supreme Court in Neely v. W. Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746 (Tex. 2005), acknowledged substantial evidence "that the public education system has reached the point where continued improvement will not be possible without significant change," and that "it remains to be seen whether the system’s predicted drift toward constitutional inadequacy will be avoided by legislative reaction to widespread calls for changes.” The court also held that that the statewide property tax supporting education in the state was unconstitutional. Since that time, education funding in the state has fallen by approximately 11% in real dollar terms, according to a national report by the Center on Budget and Policy Priorities. The trial court tagged this as a $3.6 billion shortfall below what students need.
Third, those students who need the most in Texas get the least. As this newest national Funding Fairness Report shows, Texas funds its high-need districts at only 95% of the rate of its low-need districts. One could slice and dice the trial court's facts and the Texas Supreme Court's assessment of them anyway you want to, but it is hard to understand how a school system that the court said needed improvement a decade ago is now constitutional when it spends 10% less money than before and does not provide extra resources for the students at the highest risk of education failure. Sounds like magic.
Fourth, the court tries to argue away the relevance of inequality and inadequacy in the state. Several other Supreme Court's have rejected funding challenges under the rationale of separation of powers. In short, they have argued that either funding issues are reserved entirely to the discretion of legislatures or courts' lack the standards to evaluation education quality questions. While there is a lot of room to disagree with those rationales, they are not per se unreasonable. More important, those rationales do not attempt to argue away the facts of inequality. They accept them but say courts are powerless or incompetent to deal with them. Texas has never taken that route. Like most other courts, the Texas Supreme Court has traditionally taken the position that it has both the power and competence to deal with this issue. And this newest decision did not dare reverse itself on the past legal doctrines. Instead, it decided to mangle and manipulate the facts, sometimes in the name of a new wiser view of social science. What follows is a sampling.
After acknowledging the trial court's finding of a $3.66 billion budget shortfall in one year, the court wrote
- "We do not question that a school system must spend money to accomplish a general diffusion of knowledge. Common sense says as much, as have we. Our financial efficiency doctrine presupposes that some good comes from equalizing access to funding. But here the trial court went much further, embarking on a quest to calculate the statewide dollar cost of an adequate education, and declaring the system unconstitutional because the Legislature had not provided funds to meet that threshold. What is not clear, given the current state of knowledge in the social sciences, is that spending a specific amount of additional money necessarily correlates to a better education as measured by objective outcomes. Nor is it clear that the specific cost of a constitutionally adequate education for the entire State can reasonably be determined by a court and therefore justifiably imposed on the Legislature as a constitutional mandate."
- "By focusing so heavily on the input of spending, attempting to decide a fundamental question that remains unresolved in the social sciences, relying on a misinterpretation of this Court’s jurisprudence, and relying on what the court deemed 'best practices,' the trial court erred in assigning a minimum dollar figure as constitutionally necessary to achieve a general diffusion of knowledge. This error infected the entire adequacy analysis, influencing the trial court over and over, and rendering its ultimate conclusion that the school system is constitutionally inadequate hopelessly flawed."
- "Plaintiffs argue that the educational system is inadequate because the State has failed to make its own calculations of the funds needed to meet its performance standards or to obtain a general diffusion of knowledge. . . .The State does not deny that the Legislative Budget Board has failed for years to comply with section 42.007. But even assuming that section 42.007 is a statutory mandate for the Legislature to calculate the level of funding needed to provide for a general diffusion of knowledge, this failure does not establish a constitutional violation of the adequacy requirement. . . . To be sure, the better practice might be for the Legislature to regularly calculate the cost of a general diffusion of knowledge, or components thereof, particularly in light of section 42.007. But complaining that the State has not come up with its own dollar figures for meeting legal mandates for public education does not render the system constitutionally inadequate, because the Plaintiffs bear the burden of proving the system does not achieve a general diffusion of knowledge."
What is striking in these above quotes is that the court has recognized a constitutional claim based on inadequate funding can be made, but here the plaintiffs' evidence is apparently misdirected. But how can evidence of a $3.6 billion dollar shortfall and the state's random guesses at adequate funding be misdirected or insufficient? The answer seems to be that those facts do not matter. But if those facts do not matter, which ones would? The court comes close to saying money does not matter, an assertion that social science simply will not support, no matter how much a court might wish it.
The court also engages in what appears to be wishful thinking about how much better educational outcomes have gotten in recent years. It makes much of the fact that the overall 2015 end of course pass rates on Texas standardized exams reached 92%. The numbers were even more "impressive" when looking at individual subjects and subgroups. For instance, white students' pass rate for Biology I was 99.2%. African Americans passed at 98.8%. Unfortunately, students' scores on the National Assessment of Education Progress suggest that Texas is grossly manipulating the cut off scores for passing (so as to comply with NCLB's old mandates or paint a good picture for the court). On NAEP, students' scores did not really budge. "From 2005 to 2011, the results are described as flat except for the eighth grade math score."
The court's biggest idea, however, may be that inequality, as a general matter, does not constitutional concern:
- "[T]his Court has never squarely held that a separate, cognizable adequacy claim can be asserted by a student subpopulation such as economically disadvantaged or ELL students. . . .The State also points out that article VII, 170 section 1 only requires a 'general diffusion of knowledge,' not a diffusion of knowledge to particular groups. We do not today foreclose completely a ruling of constitutional inadequacy as to subgroups, but conclude that the showing necessary for such a ruling would have to be truly exceptional, for several reasons."
The notion that a claim on behave of low-income students would be "truly exceptional" is truly and undeniably exceptional one. That is what five decades of school finance litigation and wins in over half of the states has been all about. If claims on behalf of disadvantaged students in Texas are presumptively invalid, then school finance litigation is presumptively invalid. Again, this is dangerously close to an explicit statement of a new era of school quality and funding, as described here.
Finally, the court attempts to transform additional support for low-income students into class warfare, inequitable funding itself, or reverse discrimination. The court characterizes plaintiffs' claims for additional funding for low-income students as a claim that at, "any level of total funding, certain groups deserve a larger piece of the pie. The Plaintiffs are hard put to justify this result as necessary to improve 'the system as a whole' unless they can show that the achievement gains to the allegedly underfunded subgroup will more than offset the losses that other students will sustain if they receive less funding."
Get the full opinion here.
Tuesday, May 10, 2016
Ohio Supreme Court Holds That State Education Department Can Retroactively Claim Funds From Districts' Budgets
The Ohio Supreme Court recently reversed a trial court ruling and held that the State could retroactively lower school districts' funding without running afoul of the state constitution's retroactivity clause. The case arose when the State Dept. of Education determined that school boards in the Cleveland, Cincinnati, Dayton, and Toledo districts had been overpaid for fiscal year 2005 when it mistakenly counted students as part of district budgets even though the students were attending community schools outside of their home districts. The department recouped the overpayment by deducting the amounts from the boards’ school-foundation funding during fiscal years 2005-2007. The Cincinnati School District sued the department over its fiscal-year-2005 adjustment of Cincinnati’s school-foundation funding but settled before the Ohio Supreme Court could decide the case. In the meantime, the Ohio General Assembly passed legislation that allowed the department to adjust school funding retroactively and immunized the department from liability for any legal claim for reimbursement brought by a school district. The school districts argued and won a claim at trial that the elimination of their funds and of potential state liability violated the constitution's retroactivity clause because it impaired the boards’ substantive right to accrued education funding. The Ohio Supreme Court agreed with the department's position that the retroactivity clause was historically interpreted to protect private parties, not arms of the state, relying on U.S. Supreme Court holdings that political subdivisions do not have the same rights as private corporations or individuals, and authority from other state courts concluding that legislatures may retroactively reclaim money from school district budgets. The case is Toledo City School Dist. Bd. of Edn. v. State Bd. of Edn. (Ohio May 4, 2016).
Monday, May 2, 2016
The past few weeks have included a bevy of data and new resources on school funding, segregation, and academic achievement. NPR developed a multi-week story on school funding, slowly and methodically teasing out its complexities. Last week, Sean Reardon and his colleagues released analysis of a new data set looking at academic achievement, school resources, and segregation. Both go an extremely long way toward documenting educational inequality and making it easily accessible to the average person. They come on top of a slow burning advocacy for integration at the state, local, and federal levels over the past few years. Finally, educational inequality and segregation are back in the mainstream conversation.
Reardon's new research, which is now dominating the most recent news cycles, makes an extremely important nuanced point worth emphasizing--a point the media could easily miss with all the fancy info-graphics and interactive charts showing just how unequal achievement is. Reardon and his colleagues state the following major findings:
- One sixth of all students attend public school in school districts where average test scores are more than a grade level below the national average; one sixth are in districts where test scores are more than a grade level above the national average.
- The most and least socioeconomically advantaged districts have average performance levels more than four grade levels apart.
- Average test scores of black students are, on average, roughly two grade levels lower than those of white students in the same district; the Hispanic-white difference is roughly one- and-a-half grade levels.
- Achievement gaps are larger in districts where black and Hispanic students attend higher poverty schools than their white peers; where parents on average have high levels of educational attainment; and where large racial/ethnic gaps exist in parents’ educational attainment.
- The size of the gaps has little or no association with average class size, a district’s per capita student spending or charter school enrollment.
This very last finding is a bombshell and could be used for good or bad. Some would use it to say money does not matter to educational outcomes. That simplistic conclusion overlooks two major points. First, there is plenty of research to demonstrating that money matters a lot when spent on the right things. Second, Reardon's point is not that money is irrelevant, it is that "racial segregation is inextricably linked to unequal allocation of resources among schools; and that policies that don’t address this will fail to remedy racial inequality. 'In sum, racial integration remains essential for reducing racial disparities in school poverty rates.'” This reminds me of an argument James Ryan made 17 years ago:
Chapel-Hill, North Carolina, has long boasted one of the finest public school systems in the nation. They have a community totally committed to education; they fund their schools at high levels; they pay their teachers a nice supplement; and their students are apparently a pleasure to teach. I was once told that with the number of AP courses offered (and the extra GPA points they offer), the average GPA at Chapel Hill was close to 4.0. What should come as a surprise is that even Orange County-Carrboro (the district in which Chapel hit resides) is struggling to retain teachers. The News and Observer reports:
Orange County’s school districts have asked county commissioners for $8.3 million more next year, in part to slow the tide of teachers leaving for other districts.
The Chapel Hill-Carrboro and Orange County school districts pay supplements of 10 percent to 12 percent on top of state-mandated base salaries for new teachers. But annual turnover has risen to 18.5 percent in the Chapel Hill-Carrboro schools and 18 percent in Orange County, district officials said.
That left Chapel Hill-Carrboro without enough qualified elementary teachers this year and made it difficult to find other teachers, they said. Competition is compounding the problem. Wake, for instance, offers new teachers up to $2,500 more, Chapel Hill-Carrboro officials said, and invested $16 million in teacher salaries in October, the first step in a five-year plan to meet the national average.
That prompted the school board in April to raise next year’s supplement to 16 percent and offer signing bonuses for math, science and exceptional class teachers.
“The recruiting season is now, so there’s certainly no way we could stand at a table next to Wake and say, ‘Hey, come to Chapel Hill-Carrboro, we’ll give you 12 percent, and they’ll give you 18,’” school board member Rani Dasi said. “It really didn’t feel like a choice for us.”
The source of the problem is the overall disinvestment in education since the recession, and North Carolina is one of the nation's worst examples. When one of the state's-if not the nation's finest districts--struggles to hold onto its teachers, one can only imagine how tough things are in disadvantaged communities. More here on funding cuts, teacher shortages, and the dwindling commitment to public education (along with suggestions about how to avert the next educational crisis).
Thursday, April 21, 2016
Can a New Student Loan Forgiveness Program Save the Teaching Profession and the Commitment to Public Education?
Congress is considering a bi-partisan bill to address the national teacher shortage. The bill would extend additional higher education loan forgiveness to teachers who stay in the classroom for a specified number of years. Currently, two different federal programs offer loan forgiveness to teachers. One requires 10 years of service and the other 5 years, but teachers cannot apply for both at the same time, so to take the full benefit, a teacher would need to work 15 years. Under the new bill, teachers could participate in both programs at once, taking full advantage of them and discharging their loans within 10 years.
The million dollar question is whether this change would have a serious effect on those who might consider entering the profession and whether it would improve the quality of teaching over the long-term. It surely will not hurt, but given the depth of the structural problems confronting our teaching workforce, this new program is likely to only tinkering around the edges. As I describe in my forthcoming article Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education,
Extreme teacher shortages swept the nation this past fall, revealing that the education crisis that began during the Great Recession is far from over. From 2008 to 2012, nearly every state in the country imposed budget cuts on education. Cuts of more than one-thousand dollars per-pupil in a single year were routine—the equivalent of a teacher aid in every classroom or the entire science and foreign language departments combined. Some states experienced massive cuts in multiple years. In North Carolina and Florida, per pupil funding fell from over $10,000 to the $7,000 range in just a few years. These funding cuts affected a wide array of educational services, but the most significant were regarding teachers. Lay-offs, pay cuts, and new high-stakes accountability systems dissuaded the next generation of talent from even pursuing a teaching career.
As states finally began to replenish their teaching ranks this past year, they found that teachers were in very short supply. At the same time that states were making cuts to traditional public education, they were enacting huge increases for charter schools and voucher programs. In many instances, districts struggled to hire even the most minimally qualified individuals. Just to ensure warm bodies in the classroom, districts resorted to desperate measures—billboard advertising; hiring substitutes and college interns on a full-time basis; and seeking district-wide exemptions from teacher-certification requirements. In some districts, these drastic measures were not enough to stop class cancelations and teaching overloads. The teaching demand in California, for instance, is forty percent higher than the supply of individuals seeking teaching credentials this year. Current projections indicate the shortage may get worse before it gets better.
As suggested in this quote, this shortage is also having a toxic interaction with the way public schools, charters, and vouchers have been funded over the past several years. While public school funding has dipped tremendously, charter school and voucher funding has doubled and quadrupled in many instances. More here.
 Motoko Rich, Across Country, A Scramble Is on to Find Teachers, N.Y. Times, Aug. 10, 2015, at A1.
 Noelle M. Ellerson, Am. Ass’n of Sch. Admins, A Cliff Hanger: How America’s Public Schools Continue to Feel the Impact of the Economic Downturn 8 (2010) (sixty-six percent of districts reported cuts to state and local revenues between 2008 and 2009 and eighty percent reported cuts between 2009 and 2010).
 Bruce D. Baker et al., Is School Funding Fair?: A National Report Card 12–13 t.2 (3d ed. 2014); Marguerite Roza, Breaking Down School Budgets, 9 Educ. Next (Summer 2009) (specifying programing costs in public schools).
 Bruce D. Baker et al., Is School Funding Fair? A National Report Card 8 (2015).
 Derek W. Black, The Constitutional Challenge to Teacher Tenure, 104 Cal. L. Rev. X (forthcoming 2016) (describing new teacher evaluation systems and changes to hiring, firing, and tenure policies); Exec. Office of the President, Investing in Our Future: Returning Teachers to the Classroom (2012) [hereinafter Investing in Our Future], (reporting a loss of 300,000 teachers); Marjorie A. Suckow & Roxann L. Purdue, Cal. Comm’n on Teacher Credentialing, Teacher Supply in California: A Report to the Legislature Annual Report 2013–2014 16 (2015) (finding a 55% drop in the number of persons pursuing and completing education degrees in California).
 See, e.g., Kristen A. Graham, Looking for a Few Thousand Substitute Teachers, The Inquirer Daily News, Sept. 1, 2015, http://articles.philly.com/2015-09-01/news/66074823_1_retired-teachers-subs-philadelphia-teachers; State of Cal. Comm. on Teacher Credentialing, District Intern Credentials 3 (2015) (permitting interns to teach after 120 hours of training or six credit hours of course work); Andrea Eger & Nour Habib, Crisis Hits Oklahoma Classrooms with Teacher Shortage, Quality Concerns, Tulsa World (Aug. 16, 2015) (in a month and a half, the Oklahoma Department of Education received 526 requests for teacher certification exemptions).
 Eger & Habib, supra note 6; Rebecca Klein, Kansas Underfunded Education and Cut Tenure. Now It Can’t Find Enough Teachers to Fill Classrooms, Huff. Post, July 31, 2015 (reporting school district started year with uncertified teachers and had to use substitutes).
 Rich, supra note 1 (state issued 15,000 teaching credentials, which was 6,500 short of the open teaching positions).
 See Title II Higher Education Act, Data Tools, https://title2.ed.gov/Public/DataTools/Tables.aspx (last visited Nov. 23, 2015) (finding a sharp drop in the number of students pursuing education degrees); Suckow &Purdue, supra note 5.
Wednesday, April 20, 2016
The California Court of Appeals today affirmed the dismissal of a complaint that the state's education finance system violated the state constitution's fundamental right to an education. In Campaign for Quality Education v. California, the plaintiffs argued that article IX of the California constitution required the state to adequately fund education and that the state should be compelled to do so under court supervision. The complaint, brought by a coalition of non-profit organizations and guardians ad litem, alleged that California’s education funding scheme "fail[ed] to ensure that all public school children have the opportunity to become educationally proficient according to current legislatively-mandated academic standards," and that the legislature ignored a constitutional duty to provide an education of "some quality" to public schoolchildren. The appellate court concluded that article IX's text did not impose a judicially enforceable duty to provide an education of “some quality” nor did it require the state to maintain a certain standard of educational quality expressly or implicitly. The court, citing similar litigation in Illinois, also deferred to the the legislature and the political process to resolve educational finance issues. The court also held that the constitution did not provide for a minimal level of education expenditures. A copy of the case is here.
Monday, April 18, 2016
California Court of Appeal Deals Legal Assault on Teacher Tenure a Major Blow, Laying Bare Its Shallow Assumptions
Last week, the California Court of Appeals reversed the trial court that sent shockwaves through the nation when it ruled that California's tenure and seniority statutes were unconstitutional in 2014 in Vergara v. State. As detailed here, the plaintiffs' and trial court's reasoning were riddled with numerous problematic assumptions about the causes of ineffective teaching and the disproportionate number of uncertified and low quality teachers in predominantly poor and minority schools. The Court of Appeals was nicer in its assessment, but reached the same conclusion. It wrote:
NPR is embarking on a three week tour of school funding. The stories will range from social science and policy to first person accounts from schools across the country. This morning was just a primer of the days to come:
Over the next three weeks, the NPR Ed Team will unveil a vast collection of "School Money" stories told in collaboration with station reporters across the country. Our goal: To give voice to this school-funding imbalance and to explain what happens when many of America's poorest students also attend its poorest schools.
Here's one cause for alarm: The achievement gap between this nation's wealthiest and poorest students is growing dramatically, not shrinking.
We'll begin each week with a question to guide our coverage. For this, our first week:
"How do we pay for our schools?"
NPR's has also created a website with loads of data and interactive tools to give the average person a sense of how schools are funding nationally and locally. See here.
Thursday, April 14, 2016
This from The Campaign for Educational Equity:
The 2016-17 New York State budget has now been enacted by the legislature and signed into law by the governor. This budget increases state aid to education by approximately $1.35 billion, which will provide an average increase of 4% in foundation aid and a 5.9% increase in overall school aid for the state's school districts. Although Governor Andrew Cuomo has boasted that "this is the best [budget] plan the state has produced...in decades literally," in percentage terms the increase is basically the same as last year's. Moreover, this budget does not rival the 14% increase in foundation aid and 9% increase in overall education aid that the legislature enacted for 2007-08, immediately following the final court decision in the Campaign for Fiscal Equity (CFE) case.
Bright spots in the budget include a substantial commitment to converting struggling schools into community schools that provide important health, academic, and social supports to students and their families. The foundation-aid increase includes $100 million earmarked for school districts to spend on community schools, and, there is an additional categorical allocation of $75 million for expanding community schools in districts with struggling or persistently struggling schools. The budget also finally does away with the notorious "gap elimination adjustment" that, since 2010, has provided a rhetorical justification for the state to reduce educational spending below constitutionally required amounts. Plaintiffs in the pending NYSER v. State of New York litigation are continuing to press for a court ruling that would prohibit the state from ever reinstating the GEA or any similar device in the future.
This year's increase is well below the $2.4 billion in additional state aid that the Regents had recommended. And it is not sufficient to remedy the state's ongoing violation of the requirements of Article XI, §1 (the education article of the state constitution), and does not fulfill the clear directives of the state's highest court in the CFE litigation. The state's on-going noncompliance means that the fundamental educational resource deficiencies created by years of budget cuts, the pressures of additional unfunded state mandates, the escalation of health, pension, and other costs will continue to undermine the educational opportunities of vast numbers of the state's three million public school students. The state's ongoing underfunding of its constitutional requirement disproportionately affects students from low-income households and communities and students of color.
The state also continues to maintain a "supermajority" tax cap that prohibits school districts outside of New York City from increasing local property tax rates by more than 2% or the last year's increase in the consumer price index, whichever is less, without the approval of 60% of the district's voters. This year the cap allowed increases of essentially 0%. The foundation formula is premised on an expectation that local property taxes will be funding a share of the school district's budget, in accordance with local property wealth. Since, in many cases, the property tax cap will prohibit the district from raising a fair share of needed revenues from local taxes, the shortfall between the available resources and the amounts needed to provide students the opportunity for a sound basic education will be even greater than is indicated by the continuing shortfall in state aid. It should be noted that an attempt to extend the property tax cap to New York City this year was defeated.
Major Violations of Constitutional Requirements
Among the major violations of constitutional requirements that the 2016-17 state budget perpetuates are (1) a continuing deferral of full funding of the amounts needed to meet constitutional sound basic education requirements; (2) a revival of the infamous "shares agreement" that was banned by the courts in CFE; and (3) a failure to provide full funding for universal prekindergarten services.
- Continued Deferral of Full Foundation Funding
In CFE v. State of New York, the Court of Appeals directed the state to create a system to provide full funding for the "actual cost" of ensuring all students the opportunity for a sound basic education by the 2010-11 school year. Six years past this deadline, the state continues to flout this requirement. In 2007, the legislature adopted a foundation funding formula that was based on the amount that the state education department had calculated to be the actual cost of a sound basic education. Although the state has never denied that the validity of this formula for calculating the amounts that are needed to provide the constitutionally required opportunity for a sound basic education, each year since 2009-10, the state has deferred the date for full implementation of the foundation funding amounts.
For 2016-17, even with the $1.35 billion in additional funding that the state appropriated, total foundation funding will still be approximately $4 billion below the amount the state legislature itself had determined to be necessary to provide all students the opportunity for a sound basic education.
Reversion to the Infamous "Shares Agreement"
In its CFE decisions, the Court of Appeals repeatedly specified that the state's funding system must "align funding with need" (CFE II, 100 N.Y. 2d. at 929), that resources must be "calibrated to student need" (id. at 929), and that the amount of state aid provided must "bear a perceptible relation to the needs of City students" (Id. at 930; CFE III, 8 N.Y.3d at 21 (2006)). Instead of adhering to the foundation formula, the state has reverted to the infamous "three men in the room" decision-making process in which the governor and the two legislative leaders determine how much funding each school district will receive behind closed doors and on the basis of political deals, rather than student need.
Evidence submitted in the CFE trial showed that, for almost all of the decade preceding the trial, New York City had received precisely 38.86% of the annual increase in state aid under a political "shares agreement." Supreme Court Justice Leland DeGrasse denounced this arrangement, stating that it reflected "an array of manipulations" that did not relate to actual student needs (see CFE v. State of New York 187 Misc. 2d 1, 89 (S. Ct., N.Y. Co, 2001)). Significantly, for the past few years, and now again for 2016-17, New York City's share of the state aid increase will be the same 38.86% or the "fixed percentage share" that the court held to be blatantly unconstitutional in CFE.
- Failure to Fund Prekindergarten Services Appropriately
Two years ago, the governor and the legislature committed to provide access to universal high-quality full-day pre-K services to all four year olds in New York State within a five-year period. Pre-K is one of the specific services that the CFE court deemed to be constitutionally essential, at least for high-need students. The governor proclaimed that the state would provide school districts sufficient funds for this initiative as soon as school districts were ready to expand their programs. However, for 2016-17, the third year of the proposed five-year implementation period, the state again failed to keep that pledge.
For the 2014-15 school year, the legislature appropriated $300 million for New York City and only $40 million for all other school districts in the state. Last year, and now for this year, the state appropriated only those same amounts. This means that students in many upstate districts still cannot be served. Estimates of the number of currently unserved children run as high as 100,000.
The legislature did enact a new $22 million competitive grant program for preschool for three year olds, which will expand opportunities for a small number of these younger students. The manner in which this funding has been appropriated, however, further complicates the already complex and fragmented funding mechanisms that New York State now utilizes for pre-K: there are now seven separate programs through which pre-K is funded, many of which are competitive grants that school districts must research and navigate in order to obtain funding for their students.
Necessary State Action for Achieving Constitutional Compliance
The Campaign for Educational Equity (CEE) will continue to press the governor, the legislature, and the Regents to make significant advances toward constitutional compliance in each of these areas over the coming months, and we will make concrete policy recommendations to help them to do so.
All of these constitutional deficiencies are also being challenged by the plaintiffs in the NYSER litigation that is now pending before the New York State Supreme Court. In that case, the plaintiffs are claiming, based on research and recommendations from CEE, that the governor, the legislature, and the Regents must take the following actions to achieve constitutional compliance:
- Identify the essential resources, services, and supports that must be available to all students to comply with the constitution and to meet statutory and regulatory requirements
- Reduce costs without violating children's constitutional rights by eliminating unnecessary mandates, revamping ineffective requirements, and providing school districts clear guidance on how to maximize cost efficiency and costeffectiveness while safeguarding constitutional educational services;
- Develop and implement an up-to-date methodology to determine the actual costs of providing all students with the essential resources for a sound basic education in a cost-effective manner that properly weighs student needs and concentration-of-poverty factors;
- Revise the state funding formulas to ensure that all schools receive sufficient resources; and
- Create state and local accountability mechanisms for sound basic education and ensure enforcement by the state education department and other entities and the means and capacity to carry out those responsibilities.
Tuesday, April 12, 2016
When districts attempt to reduce suspensions and expulsions, the message many teachers hear is "no more suspensions." Whether that it is the unstated and implied policy in some districts is unclear. I heard from a reliable source that this was the unwritten but stated policy a few years ago in a major district that had come under investigation by the Office for Civil Rights (given my inability to confirm this, I will keep the district's name to myself). The more likely and prevalent explanation, however, is that school leaders and teachers are missing the all-important aspect of implementing new discipline policies. No doubt, severely reducing suspensions and expulsions is the goal of discipline reform, but that goal cannot be appropriately and responsibly achieved without changing teachers' and principals' orientation toward discipline. This, of course, does not happen overnight and does not happen simply by stating a new goal. It requires resources, training, practice, and a cultural shift. In the absence of those changes, teachers think they are simply being told to tolerate egregious behavior. And maybe they are. Take this story in the NY Post this week:
Under pressure from Obama educrats, public school districts are no longer suspending even violent students; but now, under pressure from Black Lives Matter, they are suspending teachers who complain about not suspending bad kids.
In St. Paul, Minn., a high school teacher was put on administrative leave last month after Black Lives Matter threatened to shut down the school because the teacher complained about lenient discipline policies that have led to a string of assaults on fellow teachers.
Last month, two students at Como Park Senior High School punched and body slammed a business teacher unconscious, opening a head wound that required staples. And earlier in the year, another student choked a science teacher into a partial coma that left him hospitalized for several days.
In both cases, the teachers were white and the students black.
Theo Olson, a teacher at the school complained on Facebook about new district policies that fail to punish kids for fighting and drug-dealing. Like dozens of cities across the country — including New York — St. Paul adopted the policies in compliance with new discipline guidelines issued by the Obama administration. The Education Department has threatened school districts with lawsuits and funding cuts wherever if finds racial “disparities” in suspensions and expulsions, arguing such disparities have created a “school-to-prison pipeline” for African-Americans children. The agency claims such disparities are the product of racism in schools.
The danger in these conversations is pitting students and teachers against one another. If it is the case that schools are not supporting and training teachers in the transition to new discipline systems, then teachers become victims, of a sort, as well. I have little doubt that under-supported discipline systems are the norm in many places where the education system is abysmal as a general matter. Take Philadelphia, for instance. The school district has been woefully underfunded by the state for years, is bleeding students to charter schools, suffers from a problematic reimbursement system by which it must send large amounts of money to charters, and was on the brink of collapse during the recession when the most basic of staff and resources were eliminated. More recently, the entire state's education system faced shut downs because the state could not/would not pass a budget. Under these circumstances, one wonders how much serious attention and how many resources are devoted to training school staff on discipline and providing positive behavioral supports for students and teachers. In the absence of these resources, it is no surprise that Philadelphia Teachers' Union was livid about the district's insistence that suspension and expulsion rates drop precipitously.
As the foregoing suggests, the missing link in districts' strategies and teachers' perception is school quality itself. Social science increasingly demonstrates that discipline rates are a function of school quality and vice versa. In other words, low quality educational opportunities lead to discipline problems, and discipline problems lead to low quality education. Thus, one cannot be fixed without the other. Equally important, discipline systems matter for more than just the "misbehaving student." They matter for "innocent bystanders." When schools fail to invest in pedagogically sound discipline practices, they harm all students, not just the so-called bad apples. And by harm, I mean reduced educational outcomes and achievement. In this respect, the solution to our discipline problems is the solution to our education quality challenges. I flesh out a full explanation of this social science and argument here.
Tuesday, March 29, 2016
The Education Law Center issued this press release yesterday:
Education Law Center today sent a request to Commissioner of Education David Hespe and Schools Development Authority (SDA) CEO Charles McKenna for their respective agencies to immediately assess the elevated lead levels found in dozens of schools in the State-operated Newark Public Schools (NPS) and to fund and undertake any emergent repair projects to water supply systems necessary to eliminate this hazardous condition.
The ELC letter underscores the elevated levels of lead recently found in drinking water in NPS schools and the fact that this constitutes “a condition that, if not corrected on an expedited basis, would render a building or facility so potentially injurious or hazardous that it causes an imminent peril to the health and safety of students or staff.”
As the letter notes, the NJ Department of Education (DOE) and the SDA are mandated by NJ Supreme Court rulings in the Abbott v. Burke litigation and the state school construction law to fund, undertake and complete all repair projects to school buildings in NPS when faced with conditions that pose an imminent threat to health and safety. Put simply, DOE and SDA have a constitutional and statutory obligation to act to remedy any potential harm to the health and safety of school children discovered in NPS facilities.
ELC’s letter requests that DOE and SDA immediately initiate a Potential Emergent Projects (PEP) program to assess the extent of the lead contamination problem in all Newark schools, the building repairs that are needed, and the cost of such repairs, and to establish a schedule for undertaking and completing all repairs to alleviate the problem.
“Given the serious harm from ingesting lead, the Christie Administration must act, and act now, to protect Newark school children from exposure,” said David Sciarra, ELC Executive Director. “The DOE and SDA are legally obligated to fund and undertake all building repairs, on an emergent basis, to ensure the health and well-being of children attending NPS schools.”
ELC has also notified State District Superintendent Christopher Cerf so that NPS officials can facilitate the SDA and DOE effort. ELC also informed Mayor Ras Baraka and State Legislators representing Newark so that they can assist in holding SDA and DOE accountable for meeting their obligations to NPS children.
Policy and Outreach Director
973-624-1815, x 24
Friday, March 25, 2016
The 21st Century Schools Fund, U.S. Green Building Council, and the National Council on School Facilities have released their 2016 report on the state of the facilities in our nation's public schools. The report finds that we should be spending $145 Billion Per Year to meet the maintenance and expansion needs of our schools.
Using industry standards adapted to K–12 public school facilities, we estimate that the nation should be spending about $145 billion per year to maintain, operate, and renew facilities so that they provide healthy and safe 21st century learning environments for all children. Applying a 3 percent of current replacement value (CRV) standard for M&O, districts need to spend $58 billion annually to maintain and operate the 2014 inventory of public school facilities so they are clean and in good working order. On the capital side, the nation should be spending an estimated $77 billion per year (4 percent of CRV) to regularly upgrade existing facilities’ systems, components, ﬁxtures, equipment, and ﬁnishes as they reach the end of their anticipated life expectancy; systematically reduce the backlog of deferred maintenance that has accumulated; and alter existing facilities to respond to changing educational requirements. In addition, projections suggest at least another $10 billion per year is needed for new construction to accommodate growing enrollments over the coming decade. That brings the total annual facilities requirements to $145 billion per year.
Unfortunately, states are currently spending $46 billion less per year than these projected requirements.
The nation’s current system of facilities funding leaves school districts unprepared to provide adequate and equitable school facilities. Comparing historic spending against building industry and best-practice standards for responsible facilities stewardship, we estimate that national spending falls short by about $8 billion for M&O and $38 billion for capital construction. In total, the nation is underspending on school facilities by $46 billion — an annual shortfall of 32 percent. Gaps vary by state and local district, depending on investments by local communities and the structure of school facilities funding at the state level. Nevertheless, investment levels in all states but three will not meet the standards.