Monday, October 20, 2014
In the past months, I have commented on school finance litigation in New York, Colorado, New Mexico, Kansas, Texas, Connecticut, New Jersey, and Mississippi; reports decrying the state of funding in Georgia and Wisconsin; and steps by the Alabama Department of Education to propose constitutional changes to education funding in the state. For those wondering whether suing the state is just what education advocates do or if there is some underlying fundamental problem, a new report by the Center on Budget and Policy Priorities offers a simple explanation (although the report is about data, not school finance litigation). The title of the report, Most States Still Funding Schools Less Than Before the Recession, belies the conclusion. The analysis found that:
- At least 30 states are providing less funding per student for the 2014-15 school year than they did before the recession hit. Fourteen of these states have cut per-student funding by more than 10 percent. (These figures, like all the comparisons in this paper, are in inflation-adjusted dollars and focus on the primary form of state aid to local schools.)
- Most states are providing more funding per student in the new school year than they did a year ago, but funding has generally not increased enough to make up for cuts in past years. For example, Alabama is increasing school funding by $16 per pupil this year. But that is far less than is needed to offset the state’s $1,144 per-pupil cut over the previous six years.
The report pointed out four major consequencies of this underfunding:
- State-level K-12 cuts have large consequences for local school districts. Some 46 percent of total education spending in the United States comes from state funds (the share varies by state).
- Local school districts are hard pressed to replace large reductions in state aid on their own. Property values fell sharply after the recession hit, making it difficult for local school districts to raise significant additional revenue through the property tax without raising rates, a politically challenging task even in good times.
- The cuts have slowed the economy’s recovery from the recession. Federal employment data show that school districts began cutting teachers and other employees in mid-2008, when the first round of budget cuts began taking effect. By 2012, local school districts had cut about 330,000 jobs. Since then they’ve added back a portion of the jobs, but still are down 260,000 jobs compared with 2008.
- The cuts undermine education reform and hinder school districts’ ability to deliver high-quality education, with long-term negative effects on the nation’s economic competitiveness. Many states and school districts have undertaken important school reform initiatives to prepare children better for the future, but deep funding cuts hamper their ability to implement many of these reforms.
In real dollar terms, funding is down around a thousand dollars or more per pupil in Alabama, Wisconsion, Idaho, Kansas, Oklahoma, and North Carolina. Those numbers are simply mind boggling, particularly if one allows that some of those states may not have even been delivering an adequate education prior to the recession. It is no wonder that the Alabama Department of Education is contemplating changes to its state constitution. There is bad precedent in Alabama, but one wonders whether litigants will wait.
Thursday, October 16, 2014
Alabama's Department of Education is considering changing the way funds are distributed to schools throughout the state. The current approach does not take need into consideration. Rather, all students and districts are treated the same, with each receiving an equal per pupil allotment. The new formula under consideration would distribute the money based on need, meaning "both poor districts and districts seeking to teach special classes of students, including English Language Learners, at-risk students and those in special education." Since "such a change would require a major political effort that would almost certainly require a constitutional amendment," the Department is proceeding cautiously and not pushing the formula change yet. These first steps, however, are generating significant discussion and research within the department.
Tuesday, October 14, 2014
A report by the Georgia Budget & Policy Institute, 2014 Schoolhouse Squeeze, finds that cuts in state aid to public school have totaled $8.4 billion in recent years. In inflation-adjusted dollars, this has amounted to a 12% reduction between 2002-2015. Local funding, which provides 41% of school district revenues, has not made up the difference. In 89 districts that enroll 80% of the state’s students, school tax revenues have actual dipped an average of 20% in inflation-adjusted dollars, due to continued low property values resulting from the effects of the 2007 recession. Compounding the problem, the proportion of economically disadvantaged students in Georgia has increased 17% percent since 2002, and now represents 62% of the state’s student population. This growth means schools need more money, not less.
Friday, October 3, 2014
In 2012, in McCleary v. State, the Washington Supreme Court responded to the state's claim that federal education funds should be included in the analysis of whether the state was providing ample and dependable funds for education. The court balked:
[W]e find it difficult to characterize federal funding of certain education programs as a “regular and dependable tax source [ ],” id. at 523, 585 P.2d 71, for purposes of satisfying the State's obligation. Because federal dollars generally come with strings attached, the State may have little or no say on whether federal resources go toward the basic education program or some other program. Moreover, while federal funding is routed to school districts through the State's Office of Superintendent of Public Instruction (OSPI), it is in a sense pass-through money for local school districts. Still, the State maintains that, to the extent federal funding defrays the cost of certain offerings in the basic education program, the State may rely on that funding in discharging its duty under article IX, section 1. This argument is tenable, though we emphasize that the State retains the ultimate responsibility for fully funding its basic education program.
Wednesday, October 1, 2014
The Office for Civil Rights released a lengthy Dear Colleague letter today that emphasizes the extent of resource inequalities in schools and its legal framework for evaluating whether those inequalities violate Title VI of the Civil Rights Act.
Many States, school districts, and schools across the Nation have faced shrinking budgets that
have made it increasingly difficult to provide the resources necessary to ensure a quality
education for every student. Chronic and widespread racial disparities in access to rigorous
courses, academic programs, and extracurricular activities; stable workforces of effective
teachers, leaders, and support staff; safe and appropriate school buildings and facilities; and
modern technology and high-quality instructional materials further hinder the education of
students of color today.
I would add middle income students to the list of "resources" to which students must have equal access. Half a century of research confirms that the most important school level determinate of an individual student's academic outcomes is the socio-economic status of the students with whom the student attends school. Middle income students and families bring social capital and other important resources to schools that heavily affect climate, motivation, and the other tangible resources that the Department references in its letter. In other words, student assignment policies cause resource inequalities. Thus, at the local level, student assignment cannot be separated from the conversation of resources, school quality, and academic outcomes.
Wednesday, September 24, 2014
David Boies is making headlines again. This time it is by becoming the chairman of the Partnership for Educational Justice, a group founded by former CNN anchor Campbell Brown to challenge teacher tenure laws. These lawsuits seek to use the precedent and constitutional right to education developed in school finance litigation. David Sciarra, Executive Director of the Education Law Center, has helped establish and develop these educational rights in a number of cases. His response is that if David Boies really wants to help education, he should join school funding lawsuits in New York, Colorado, New Mexico, Kansas, Texas, Connecticut, New Jersey, and Mississippi. Sciarra's comments strike at the irony of the new and impending upsurge in education litigation. Boies purports to be viewing education through a civil rights lens now, but to focus solely in on teacher tenure is to ignore any number of fundamental inequalities that stem from funding and segregation, not tenure. Even if tenure is a problem, eliminating it will do nothing to touch the underlying fundamental inequalities and segregation in schools that purportedly want to get rid of ineffective teachers but cannot.
Tuesday, September 23, 2014
Similar Lawsuits Expected in Other States
On September 15, 2014, the Northeast Charter Schools Network (NECSN) and charter parents filed a lawsuit against the State of New York, seeking more taxpayer support for charter schools, specifically for facilities.
The lawsuit, Brown v. New York, which was filed in Buffalo, claims the funding system used by the State to allocate money to charter schools violates the state constitution. The plaintiffs argue that the state funding formula denies children enrolled in charter schools access to a "sound basic education," as required by the New York State Constitution. Additionally, they allege that the funding scheme has a disproportionate and discriminatory impact on minority students.
The parent plaintiffs are from Buffalo and Rochester and are represented by Herrick, Feinstein LLP, Park Avenue, New York, NY.
As reported in the Rochester City Newspaper, the Alliance for Quality Education, a statewide group that advocates for high quality public education for all New York students, issued a statement calling the suit a "deceptive PR stunt." "Despite the fact that public schools are severely underfunded, Wall Street-backed charter school groups continue to use aggressive propaganda to win more public school dollars," the statement asserts.
Tuesday, September 16, 2014
On September 8, 2014, the Forward Institute released a study that examines the Wisconsin school funding formula and finds that it does not fulfill its mandate to provide a sound, basic education as guaranteed by the state constitution and state statute.
The Association for Equity in Funding, a group of Wisconsin school districts, commissioned the study, which is entitled "Segregation of Opportunity: Education Funding."
The goal of the study was to answer the question, "Is the education tax and funding system in Wisconsin fulfilling its constitutionally and statutorily mandated function to provide a sound, basic education for all students regardless of need, without an excessive reliance on local property taxes?"
Monday, September 15, 2014
Bruce Baker's new study, Evaluating the Recession's Impact on State School Finance Systems, is now available. The abstract offers the following summary:
The Great Recession's effect on state school finance systems was unlike previous downturns in the early 1990s and early 2000s in that it a) involved a greater loss of taxable income in many states, thus great loss to state general fund revenues, b) also involved a substantial collapse of housing markets and related reduction or at least leveling of growth of taxable property wealthy, c) but also involved a substantive infusion of federal "fiscal stabilization" aid to be used to fill holes in state general aid formulas. The goal of this study is to evaluate the effects of the recession on equity of state school funding systems with respect to child poverty concentrations. Using school district level panel data from 1993 to 2011, we evaluate the interplay between local, state and federal source revenues through the course of the recent recession by comparison with the less severe economic downturn of the early 200s. Then using stat level estimates of elasticities between revenue and spending measures and district poverty rates, we estimate whether changes in the distribution of state, local or federal revenue contribute most to changes in overall equity of current spending and whether those contributions changed during the recent recession.
Among several conclusions was that increases in state increase spending fairness, as do increases in federal aid. The inverse is also generally true. Of course, it is far more complicated than that and warrants a close read.
Yesterday, the Washington Post ran a story on the filth in Chicago's public schools. One principal charges that ever since the school system turned over its janitorial services to private contractors (a $340 million contract), his school has been inundated with roaches, rats, and garbage. Nearly half of the district's principals reported the same in a recent survey. Things may very well get worse. One of the contractors is set to lay off approximately 20% of the custodians currently on the project.
The story closely intersects with a point I made in a recent paper on what makes education public and how private markets fit into education. I distinguished between publicly funded education and public education. I also distinguished the various services that the government delivers, positing that some services entailed public missions and value judgments, and others did not. I noted, for instance, that garbage pickup involves relatively little value judgment and mission development, whereas education does. Thus, one might be less concerned about the outsourcing of the former, and more concerned about the latter.
Thursday, September 11, 2014
In late August, a group of 14 school districts filed suit against the state of Mississippi, alleging that its failure to fully fund the Mississippi Adequate Eduction Program since 2010 is unconstitutional. The suit seeks to recover past funds and to enjoin the state to fully fund the program in the future. According to the litigants, the state has underfunded education by $1.5 billion since 2010.
The litigants are giving other districts 30 days to join the suit, and former Governor Ronnie Musgrove is crisscrossing the state trying to encourage them. “School districts cannot live without this funding, and local districts are being forced to raise local taxes to try to make up for the money that is being held hostage in Jackson,” said Musgrove. “We hope to get as much money back as possible for every school district. We hope to make education a top priority in Mississippi again. We hope to create opportunity for everyone in Mississippi. The only way to do that is to legally force the state to fully fund education.”
Monday, September 8, 2014
Last year brought a spate of North Carolina cases involving charter schools claiming that local districts were denying them appropriate access to the districts' rainy day funds. The charters won and were able to immediately tap into funds that the districts had set aside for long term emergency. Apparently, the response of some districts was to reclassify funds to exempt them from the fund sharing statute implicated in prior cases. That reclassification of funds lead to another new case, Thomas Jefferson Classical Academy Charter School v. Cleveland County Board of Education, 2014 WL 4290557 (N.C. Ct. App. Sept. 2, 2014), in which the Thomas Jefferson charter school alleged that the school board "wrongfully moved approximately $4.9 million from the local current expense fund, which must be shared with the charter schools, to a 'special revenue fund,' which is not shared."
Friday, September 5, 2014
In 2012, the Washington Supreme Court held that the state was failing in its constitutional duty to make ample provision for education. It gave the state until 2018 to fix the problem. Such a long time line did not portend well when it was issued, as lawmakers tend to drag their feet unless pushed on these issues. Due to the state's failure to make significant progress over the past two years, the plaintiffs asked the court to hold the state in contempt and the court is waking up to general realities. In a hearing before the court on Wednesday, several members of the court seemed prepared to hold the state in contempt if it does not act quickly to pass new funding legislation in its upcoming legislative session. One justice went so far as to suggest the court should go ahead and hold the state in contempt now, remarking of the state's failure to act over the past two years: "Why should we think that you're going to do something different?" Unfortunately, it has taken standoffs and this level of aggressiveness by plaintiffs and courts to spur reform in several other states in the past. For instance, in Arizona, the state was held in contempt for about a month with enormous fines each day before it acted to address inadequate funding for English Language Learners. Signally its seriousness through oral argument may be a good way of getting the state to act without formally escalating the problem.
More on the oral argument and case here.
Tuesday, September 2, 2014
MALDEF secured a major victory in its long running school finance litigation in Texas. For those who have not followed the litigation, this is just one in a long line of victories. Unfortunately, plaintiffs must continually return to the courts in Texas, as its funding system perpetually backslides or fails to afford a full remedy. Below is MALDEF's press release and a link to the opinion.
TRAVIS COUNTY DISTRICT COURT DECLARES CURRENT TEXAS SCHOOL FINANCE SYSTEM UNCONSTITUTIONAL--AGAIN
Current Finance System Violates Students’ Rights to an Adequate and Equitable Education
AUSTIN, TX – Today, Travis County District Court Judge John K. Dietz issued his final judgment, declaring the current Texas school finance system inadequate, unsuitable, and inequitable for Texas school children under Article VII, Section 1 of the Texas Constitution, and in violation of the prohibition on a state ad valorem tax under Article VIII, Section 1-e. “Rather than attempt to solve the problem, the State has buried its head in the sand, making no effort to determine the cost of providing all students with a meaningful opportunity to acquire the essential knowledge and skills reflected in the state curriculum and to graduate at a college- and career-ready level,” Judge Dietz stated in his scathing rebuke of the school system. This long-anticipated ruling follows a three-week hearing earlier this year after Judge Dietz reopened the evidence in the wake of statutory changes made to the public education system during the 2013 Legislative session. On February 4, 2013, he issued a similar ruling from the bench following a three-month trial.
Wednesday, August 20, 2014
Education Law Center Calls on New Jersey to Assess Effect of Charters on Segregation and School Funding
The following is a repost of an Eduction Law Center press release:
In comments filed today, Education Law Center is calling on the NJ Department of Education (DOE) to issue rules requiring the State Education Commissioner to assess the impact of NJ charter schools on both student segregation and local school district budgets.
"The New Jersey Supreme Court has made clear the Commissioner's obligation to assess whether a proposed or operating charter school is causing student segregation or depriving district schools of necessary funding, both of which would violate the right of district students to a thorough and efficient education under our State Constitution, " said David Sciarra, ELC Executive Director.
"The State's failure to properly codify this obligation in the rules governing New Jersey's charter school program is a violation of constitutional law," Mr. Sciarra added.
In several rulings, most recently in December 2013, the NJ Supreme Court firmly established the responsibility of the State Commissioner to determine whether a proposed charter school would exacerbate racial segregation and/or deprive students in district-run schools of essential funding.
Tuesday, August 19, 2014
At the surface level, California's new funding formula is impressive in its structure. It sets a base per pupil grant for all students, adds 20 percent to that base for each disadvantaged student a school enrolls, and allots a 50 percent bump per pupil for schools enrolling more than 55 percent high needs students. In other words, it ensures that all schools receive some supplemental resources for every disadvantaged student, but focuses the most resources on high poverty schools, where research shows that concentrated poverty depresses academic outcomes. Implicit in this framework is the notion that low-poverty schools do not need significant funds to support low-income students. Hence, the basic 20 percent bump is below the additional funding that most research says high needs students need. Conversely, high poverty schools need an exponential bump, which this formula aims toward. This type of formula is generally consistent with the formula that I have argued Congress should adopt for federal funds (see here for more). If a critique of California's formula is to be had, it may be in regard to the base amount itself.
Wednesday, August 13, 2014
An extremely troubling movement is brewing in Ohio. The Ohio Constitutional Modernization Commission is considering changes to the state constitution's education clause. In particular, it is considering eliminating the language that requires the state to provide a "thorough and efficient" system of public schools. According to Chad Readler, the chairman of the education committee at the Commission, his intent is not to undermine education or reduce services, but to eliminate the courts' ability to intervene and enforce the education provision. He claims that the current education clause has been used by advocates to get their way in court when they cannot get it through the legislature. He is, of course, referencing the DeRolph v. State of Ohio line of cases, in which the state supreme court found the state's financing system unconsitutional based on its irrational distrubution of funds and the wildly unequal results it produced.
For those who have not read the DeRolph cases, I recall--without rereading--state policies that forced school districts to take out loans to cover the budget shortfalls they incurred every year and repay the loan the following year, which caused a vicious cycle of underfunded and debt-strapped school districts. The court identified, at least, five other irrationalities and flaws in the
Monday, July 21, 2014
How the Kansas Courts Have Permitted and May Remedy Racial Funding Disparities in the Aftermath of Brown
Preston Green, Bruce Baker, and Joseph Oluwole's new article, How the Kansas Courts Have Permitted and May Remedy Racial Funding Disparities in the Aftermath of Brown, is now available on westlaw at 53 Washburn L.J. 439 (2014). The introduction summarizes it as follows:
After the Brown v. Board of Education decision, black students have primarily used school desegregation and school finance litigation to attain equal educational opportunity. School desegregation litigation has focused primarily on breaking down the official barriers that prevented black students from attending public schools with white students. School finance litigation has sought “to increase the amount and equalize the distribution of educational resources and, in so doing, to improve the academic opportunities and performance of students disadvantaged by existing finance schemes.” This Article explains how the failure of the two legal strategies to address racial funding disparities in the aftermath of Brown enabled the Kansas legislature to create a school finance formula that disadvantaged the school districts affected by that famous decision. This Article also explains how Kansas's recent school finance litigation may provide insight as to how state education clauses might be used to enable students in high-black-concentration school districts to obtain equal educational opportunity.
Thursday, July 17, 2014
The Oklahoma Board of Education brought suit claiming that the legislative repeal of Common Core in the state violated the Board's constitutional authority over the "supervision of instruction in the public schools." On Tuesday, the state supreme court heard oral arguments in the case. Four hours later, they issued their decision, Pack v. State, remarkable in its brevity. It stated the issue in one sentence, declared jurisdiction over the case in two sentences, and reached its holding in one sentence: "HB 3399 does not violate art. 13, §5 or art. 4, §1 of the Oklahoma Constitution."
Wednesday, July 16, 2014
The Times Union ran this commentary by David Sciarra and Billy Easton yesterday. Thanks to David for sharing.
Sound Education Child's Right
With much fanfare, a novel lawsuit filed in Staten Island alleges teacher tenure, due process and lay-off procedures violate the constitutional right of New York school children to a "sound basic education."
Without offering specifics, the complaint baldly asserts that these procedures result in classrooms filled with "incompetent" teachers, especially in schools serving at-risk students.
The complaint also presents no evidence to suggest that ending tenure or altering due process protections for teachers will somehow improve student outcomes. Nor could it because there is none.