Monday, February 6, 2017
Lotteries Then Pot: The Continuing Evolution of States' Attempts to Fund Education through Anything Other Than General Revenues
The Washington Supreme Court has hammered the state legislature hard in recent years over its failure to rationally fund public education. Most recently, it imposed daily fines on the state for its failure to come up with a plan to comply with the court's prior decisions declaring the financing system unconstitutional. The court also struck down the state's attempt to set up a new charter school system, again reminding it that the state constitution obligates to to fund its traditional public schools. The Seattle Times now reports that the state is looking to fill its education funding gap with taxes on marijuana. The Seattle Times offers this report:
It’s a question that Republican senators have asked during state budget battles from time to time: Why can’t Washington, flush with marijuana tax revenue far outpacing old projections, use that money to help solve the state’s school-funding crisis?
Well, it can. To a small extent it already does. And there is at least surface-level bipartisan agreement that maybe the state should look at pot money as a partial solution to the education-funding gap that the Supreme Court has ordered the Legislature to fill.
But, Democrats are quick to point out, there’s not a big pile of marijuana tax money just sitting around — it’s already being spent in other ways.
Gov. Jay Inslee, a Democrat, thinks it will cost $2.75 billion above current funding levels, over the next two-year budget period, for the state to fully fund the public schools.
Legislative Democrats would bump current levels by $1.6 billion.
Legislative Republicans won’t say what they think it will cost. So far, they won’t say when they’ll release a proposal, although they promise it will be soon.
Sen. Ann Rivers, R-La Center, served on that task force, and at a news conference earlier this month was more strident on rededicating marijuana tax money than on when her party would present a full education funding plan.
“Marijuana revenue needs to go to education, I think it should be devoted,” Rivers said. “I think it’s absolutely appropriate to take the money, set it aside, and say this is only education.”
Using marijuana revenues seems far more human than past legislative schemes to use lottery revenues. It is likely far more lucrative as well. But the optics and the inference that the state lacks a serious commitment to education give me pause.
Get the full story here.
Wednesday, February 1, 2017
New Jersey Supreme Court Denies Gov. Christie's Bid to Change Teachers' Rights by The Education Law Center
This from the Education Law Center:
The NJ Supreme Court issued an order yesterday denying Governor Christie's motion to reopen the landmark Abbott v. Burke litigation. ELC, counsel to the plaintiff school children, vigorously opposed the Governor's action.
In the September filing, Governor Christie asked the Court to modify prior Abbott rulings by giving the Commissioner of Education unlimited authority to over-ride terms of teacher collective bargaining agreements and the law requiring teacher layoffs by seniority. The Governor also asked the Court to "freeze" state aid at current levels under the funding formula - the School Funding Reform Act (SFRA) which was upheld and enforced by the Court in the 2009 and 2011 Abbott XX and XXI - while the Executive and Legislature developed a new wholly undefined formula to be adopted at some indeterminate future date.
In denying the Governor's motion, the Court noted the challenges to collective bargaining and seniority in layoffs "have not been subject to prior litigation in the Abbott line of cases."
The Court, in its order, "declines to exercise original jurisdiction" to hear the motion "in the first instance," thus deciding not to consider the merits of the Governor's request.
"We are pleased the Court has turned down the Governor's request. Issues related to collective bargaining and teacher layoffs were never in the Abbott case, which has been singularly focused on ensuring adequate funding and resources for students in New Jersey's poorest schools," said David Sciarra, ELC Executive Director and lead Abbott counsel.
Denying the Governor's request to freeze school funding means that the Court's directives in the Abbott XX (2009) and Abbott XXI (2011) rulings requiring the State to continue to use the SFRA formula to fund New Jersey's public schools remain in full force and effect.
"With this ruling, we anticipate the Governor will follow the Abbott rulings and SFRA statute by using the formula to determine state aid for school districts in the FY18 State Budget," Mr. Sciarra added. "We're prepared to work with the Governor and Legislature to ensure the budget includes a long overdue increase in state aid, targeted to districts most in need."
Tuesday, January 31, 2017
In his proposed 2017-18 budget, Governor Andrew Cuomo is calling for repeal of New York's Foundation Aid Formula, the 2007 law responding to the landmark case, Campaign for Fiscal Equity v. State (CFE).
The Formula was carefully designed to deliver funding for the essential resources all New York school children need to achieve the state's academic standards, including additional resources needed for students in poverty, English language learners and students with disabilities. The Formula was also designed to drive increases in state aid to high need schools across the state, addressing New York's longstanding disparities between high poverty, low wealth and low poverty, high wealth school districts.
In the 2003 CFE ruling, New York's highest court declared the state's method of funding schools violated New York City students' constitutional right to a "sound basic education." The Court of Appeals sharply criticized the funding system, calling it a "political process" that allocates funds to schools in a way that "does not bear a perceptible relation to the needs of" public school children.
In the wake of CFE, the Legislature enacted the Formula to move the state from funding schools based on available dollars and raw politics to year-to-year determinations based on student and school need. The Formula also allocated school aid based on district fiscal capacity to raise local revenue from property taxes. To accomplish this objective, the Formula provided for a four-year phase-in of increases in state aid, or $5.5 billion statewide, the vast majority targeted to the poorest urban and rural districts.
In 2009, the state froze and then subsequently cut Formula aid. Since taking office, Governor Cuomo has staunchly resisted increasing aid to move districts towards full Formula funding. The Formula remains underfunded by over $4 billion.
The result of the state's failure has fallen hard on students, especially those in high need schools. Many districts have reduced or eliminated teachers, support staff and other programs deemed essential in CFE for a constitutional education. Yet support for full Formula funding remains strong. Parents, teachers, board members and legislators have stood behind the Formula, demanding Governor Cuomo re-commit to a multi-year phase- in of full Formula aid.
The Governor's announcement that he wants to eliminate the Formula is a stunning reversal of his 2010 campaign position when he made clear the state's responsibility for full Formula funding. The Governor recognized the state "is supposed to equalize or come close to equalizing" school funding, declaring that "the state has yet to fully fund" CFE.
Governor Cuomo is following the playbook of Governors in Mississippi and Georgia, states where the existing funding formulas are, like New York, chronically and substantially underfunded. Rather than fully funding the Formula, the Governor wants to wipe it off the books, and with it the current $4 billion shortfall in state foundation aid. By dumping the Formula, the Governor is attempting to avoid accountability for meeting the needs of New York's school children, needs that the Governor, no matter how hard he tries, cannot pretend don't exist.
Even worse, repeal of the Formula would be a major step backwards. The Governor wants to turn the clock back to the days when school funding was decided by "three men in a room," a crass political process soundly rejected by the CFE rulings. We're confident that legislators will continue to stand behind the Formula and demand that it be fully funded to ensure the needs of school children remain prominent, paramount and fully effectuated in the annual state budget.
David G. Sciarra is Executive Director of Education Law Center. ELC advocates for fair and adequate school funding for New York school children.
Monday, January 30, 2017
The Sixth Edition of the School Funding Fairness Report is now available. The report is a joint effort of the Education Law Center and the Rutgers University School of Education, with Bruce Baker serving as lead author. To no surprise, the report "finds that public school funding in most states continues to be unfair and inequitable, depriving millions of U.S. students of the opportunity for success in school." It retains the same methodology of the past, analyzing "Funding Level, Funding Distribution, Effort and Coverage." The report also highlights a major trend that I emphasized in Averting Educational Crisis--the failure of state funding systems to rebound since the Recession. The report "shows almost no improvement since the end of the Great Recession in those states that do not provide additional funding to districts with high student poverty. There is also no change in the vast differences in levels of funding for K-12 education across the states, even after adjusting for cost."
Key findings include:
- Funding levels show large disparities, ranging from a high of $18,165 per pupil in New York, to a low of $5,838 in Idaho.
- Many states with low funding levels, such as California, Idaho, Nevada, North Carolina, and Texas, are also low “effort” states, that is, they invest a low percentage of their economic capacity to support their public education systems.
- Fourteen states, including Pennsylvania, North Dakota, New York, and Illinois, have “regressive” school funding. These states provide less funding to school districts with higher concentrations of need as measured by student poverty.
- Students in certain regions of the country face a “double disadvantage” because their states have low funding levels and do not increase funding for concentrated student poverty. These “flat” funding states include Alabama, Mississippi, and Florida in the Southeast, and Colorado, Arizona and New Mexico in the Southwest.
- Only a handful of states – Delaware, Massachusetts, Minnesota and New Jersey – have “progressive” school funding. These states have sufficiently high funding levels and significantly boost funding in their high poverty districts.
- States with unfair school funding perform poorly on key indicators of resources essential for educational opportunity. In these states, access to early childhood education is limited; wages for teachers are not competitive with those of comparable professions; and teacher-to-pupil ratios in schools are unreasonably high.
This year's report also comes with a huge bonus for researchers. They can now download data files on local education agencies, state equity indicators, and basic state fiscal numbers. This is also probably great for Bruce Baker, so that the rest of the world can figure out answers to questions themselves. We really owe a great debt to group for doing this work and making it available. It is the exact type of fundamental analysis and data that I argued over a decade a ago the U.S. Department of Education should be doing as part of its monitoring of federally funded programs.
Monday, January 23, 2017
In 2012, Bruce Baker released a report that surveyed all the literature on the effects of school funding. It was the first singnificant survey of the literature since Greenwald, Hedges and Laine's study from the mid-1990s. Baker has now released a new update to his prior work. The report finds:
- On average, aggregate measures of per-pupil spending are positively associated with improved or higher student outcomes. The size of this effect is larger in some studies than in others, and, in some cases, additional funding appears to matter more for some students than for others. Clearly, there are other factors that may moderate the influence of funding on student outcomes, such as how that money is spent. In other words, money must be spent wisely to yield benefits. But, on balance, in direct tests of the relationship between financial resources and student outcomes, money matters.
- Schooling resources that cost money, including smaller class sizes, additional supports, early childhood programs and more competitive teacher compensation (permitting schools and districts to recruit and retain a higher-quality teacher workforce), are positively associated with student outcomes. Again, in some cases, those effects are larger than in others, and there is also variation by student population and other contextual variables. On the whole, however, the things that cost money benefit students, and there is scarce evidence that there are more cost-effective alternatives.
- Sustained improvements to the level and distribution of funding across local public school districts can lead to improvements in the level and distribution of student outcomes. While money alone may not be the answer, more equitable and adequate allocation of financial inputs to schooling provide a necessary underlying condition for improving the equity and adequacy of outcomes. The available evidence suggests that appropriate combinations of more adequate funding with more accountability for its use may be most promising.
He boils the research on those points down to this:
While there may in fact be better and more efficient ways to leverage the education dollar toward improved student outcomes, we do know the following:
• Many of the ways in which schools currently spend money do improve student outcomes.
• When schools have more money, they have greater opportunity to spend productively. When they don’t, they can’t.
• Arguments that across-the-board budget cuts will not hurt outcomes are completely unfounded.
In short, money matters, resources that cost money matter, and a more equitable distribution of school funding can improve outcomes. Policymakers would be well-advised to rely on high-quality research to guide the critical choices they make regarding school finance.
Get the full report here.
Wednesday, December 14, 2016
New Study Finds That Money Has a Large Effect on Student Achievement, But It Is Not News--It Is a Sad Reminder of What We Must Do
The New York Times took note of a new school funding study Monday, titling the article It Turns Out Spending More Probably Does Improve Education. The study by Julien Lafortune, Jesse Rothstein, and Diane Whitmore Schanzenbach found that school funding "reforms lead to sharp, immediate, and sustained increases in spending in low-income school districts. Using representative samples from the National Assessment of Educational Progress, we find that reforms cause increases in the achievement of students in these districts, phasing in gradually over the years following the reform. The implied effect of school resources on educational achievement is large." To put it in perspective, they write "After desegregation, school finance reform is perhaps the most important education policy change in the United States in the last half century."
Our results thus show that money can and does matter in education . . . School finance reforms are blunt tools, and some critics have argued that they will be offset by changes in district or voter choices over tax rates or that funds will be spent so inefficiently as to be wasted. Our results do not support these claims. Courts and legislatures can evidently force improvements in school quality for students in low-income districts. But there is an important caveat to this conclusion. As we discuss in Section VI, the average low-income student does not live in a particularly low-income district, so is not well targeted by a transfer of resources to the latter. Thus, we find that finance reforms reduced achievement gaps between high- and low-income school districts but did not have detectable effects on resource or achievement gaps between high- and low-income (or white and black) students. Attacking these gaps via school finance policies would require changing the allocation of resources within school districts, something that was not attempted by the reforms that we study.
To be clear, I will be citing and relying on this study in my own work. It is a good one, but those who have studied school funding for years will be a little miffed with the New York Times' framing of the study. This new study, while high in quality and nuance, does not reveal something particular new. It is incorrect to suggest the study's findings are a surprise-- that it "turn[s] out" that money improves education. This has been the consensus of social science for decades. See my discussion of the literature here.
The problem is that the issue has been so poorly reported and debated that the study seems like news to most. Then again, maybe we have just conveniently ignored it. Either way, education budgets have been decimated over the past decade with little more than a whimper from most national and local media. During the Recession, every state cut education. Most cut it with a hatchet, with cuts of twenty percent or more in several states and over ten percent in the largest chunk. Equally disturbing is that most states have still yet to fully replace those funds. The most recent report by the Center on Budget and Policy Priorities indicates that, in real dollar terms, thirty states are still funding education below their pre-recession level.
Things have been so bad that people simply stopped pursuing careers in education, so much so that when states finally began rehiring teachers last year, there were literally no applicants to fill those jobs. School districts actually began using billboards on the highway to beg people to apply. California told prospective applicants they jump right into the classroom if they would just enroll in a teacher preparation program--they could finish their degrees on the weekends. It was only this tailing effect of school funding cuts that finally caught widespread attention.
The overall trend calls for intervention and a new approach by legislatures and courts. For more, see Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education.
Wednesday, November 30, 2016
With the selection of Betsy DeVos as Education Secretary, Donald Trump has made good on his promise to do everything possible to undermine and weaken America's public education system. President-Elect Trump made few promises about his education agenda during the campaign, but what he did promise - $20 billion in federal funding taken from public schools to be used for private and religious school vouchers - foreshadowed his pick of a conservative billionaire who has donated considerable sums to promote charters and vouchers at the expense of the public schools and the children they serve. Ms. DeVos's track record in Michigan provides a clear picture of her priorities as Education Secretary. She and her husband have funded campaigns to increase the number of charter schools, including for-profit charters, especially in high poverty communities such as Detroit and Flint. They have funded this effort despite the fact that Michigan's expansive charter sector is among the least accountable and worst performing in the nation. Ms. DeVos also bankrolled an attempt to bring vouchers to Michigan, but those efforts were stymied due to a constitutional amendment passed in 1971 prohibiting public funding for private schools.
The bottom line is this: the Trump Administration will do nothing to support public education across the country. Instead, federal funding will be used as a carrot, or perhaps a stick, to force states to accelerate the unregulated growth of charters and expand existing voucher programs or enact new ones to facilitate the flow of tax dollars from public schools to private and religious schools and other private providers.
What we can also expect is a wholesale retreat from federal enforcement of civil rights protections for vulnerable student populations, from LGBTQ to ELL students. In short, it is not an exaggeration to call the Trump-DeVos education agenda an all-out assault on our public schools, the centerpiece of which is the diversion of billions of dollars from public education to private spending.
What can the vast majority of Americans who care about public education do?
This is a good time to remind ourselves that public education has always been - and will continue to be - the obligation of the 50 states and the District of Columbia. This obligation is embedded in the guarantee of a public education in state constitutions. It is the states, not the federal government, that control access, quality, governance, student rights and the bulk of funding for their public education systems.
A storm of policy and public relations to promote educational inequity and disparity across the nation will emanate from Washington under the new administration. But if we turn our full attention to the states, we can - and must - energize existing coalitions and campaigns of parents, educators, students and community organizations to protect and defend the public schools. Let's start now to erect state and local firewalls to safeguard our schools.
Here are a few ways we can begin:
1) We must press our congressional delegations to oppose the Trump anti-public education agenda, starting with the DeVos appointment but continuing to block other proposals, from dismantling the Office of Civil Rights (OCR) to diverting Title I funding for vouchers under the guise of "portability."
2) If a state constitution prohibits the use of public funding for other purposes, it's time for advocates and activists to get ready to stand behind it. Some state constitutions contain such prohibitions or have been interpreted by courts to do so. If state law is unclear, it's time to propose a law to "lockbox" and protect public school funding. Most states already underfund their public schools, and what our children don't need is the federal government trying to divert any amount of that funding to private and religious schools.
3) This is the right time to start state-level conversations about rejecting offers of federal funding that come at the price of defunding public education and causing even more inequity and disparity of opportunity for students, especially low-income students, students with disabilities, English language learners and students of color.
4) Legislative campaigns for charter school reform must be reinvigorated. In many states, an overhaul of charter school laws is long overdue to ensure full accountability with regard to student access and school performance, as well as the use of public funds. Segregation of students based on disability, the need to learn English, academic risk or other factors must be fought in statehouses, including moratoriums to prevent funding loss and student segregation resulting from uncontrolled charter growth.
5) We must review state-level student and civil rights protections and develop an agenda to strengthen that critical framework. This must include enhancing anti-discrimination and anti-bullying laws; school discipline reform; open admissions for homeless children, youth in foster care, and un-documented students; and other measures to safeguard the rights of students.
On the one hand, a Trump Administration offers the opportunity to join the many advocates laboring to ensure equal and quality education for all children in their states, often in extremely challenging political environments. On the other hand, Trump's election is a wake-up call about a fundamental, enduring lesson: education equity advances or regresses primarily through state action on funding, essential resources and programs, and students rights. Actions taken by the federal government, even those intended to promote equity in the states, can only go so far. And sometimes those actions impede progress.
Let's not get distracted by "inside the beltway" prognostications or rarefied debates over how bad things may be. Those of us working in the states know what's coming. It's time to renew and redouble efforts to protect public education in our states and communities. Millions of children are depending on us.
David G. Sciarra is Executive Director of the Education Law Center, where he serves as lead counsel in the landmark Abbott v. Burke school funding litigation and directs ELC's advocacy on behalf of the nation's public school children.
Friday, November 4, 2016
In September, Superior Court Justice Brian Tucker granted most of plaintiffs' motion for summary judgment, in City of Dover v. State, holding that the state's statutory cap on State school funds sent to cities and towns denied Dover adequacy funds to which it was entitled under the State constitution and granting a permanent injunction.
The court noted in its ruling that the State did not oppose plaintiffs' motion for declaratory and injunctive relief, but instead the Senate President and Speaker of the House intervened to oppose the motion. The intervenors argued that plaintiffs lacked standing to bring the case. The court did not agree, explaining that because the Dover plaintiffs argued that the loss of funding impaired their ability to furnish a constitutionally adequate education they had standing to challenge the cap.
The court observed that New Hampshire school children have a constitutional right to an adequate education. Citing New Hampshire Supreme Court precedent in Claremont Sch. Dist. v. Governor (1993), the court explained that the State constitution "imposes a duty on the State to provide a constitutionally adequate education to every child in the public schools in New Hampshire and to guarantee adequate funding." The court also stated that the State Legislature must define a constitutionally adequate education and pay for it, citing Londonderry Sch. Dist. v. State (2006).
A New Hampshire statute provides a definition of a constitutionally adequate education and identifies the annual per pupil funding amount based on the cost of providing that education, including upward adjustments for students with various needs. Despite New Hampshire's cost-based calculation, beginning in fiscal year 2010, State law directed the Department of Education to limit State aid distributions by applying a 15% cap on any increase over the 2009 amount. Dover received less than the cost-based calculation in 2010, and subsequent years.
The next question for the court was under what standard to review the challenged statutory language. Because education is a fundamental right in New Hampshire (Claremont 1997), the court used strict scrutiny to determine whether the cap violated the constitution. When governmental action impinges on a fundamental right, strict judicial scrutiny applies, the court noted. The court did not find the cap "necessary to achieve a compelling interest" and "narrowly tailored" to do so, as strict scrutiny requires.
The court declared the cap unconstitutional and issued a permanent injunction against its use. Plaintiffs will recover the funding lost due to the cap from September 15, 2015, and thereafter. This decision also benefits a handful of other school districts and towns that were similarly shortchanged.
"The court in this case correctly upheld the essential right of students to an education," said David Sciarra, Executive Director of the Education Law Center. "This ruling benefits New Hampshire students and the State itself because better educated students today means a stronger economy and civic discourse in the future."
Education Law Center Press Contact:
Molly A. Hunter
Education Justice, Director
Thursday, November 3, 2016
Kandice Sumner, a public school teacher, breaks down racial and socio-economic inequality in our public schools in this straightforward and experiential-based Ted Talk. The webpage offers this introductory summary:
Why should a good education be exclusive to rich kids? Schools in low-income neighborhoods across the US, specifically in communities of color, lack resources that are standard at wealthier schools — things like musical instruments, new books, healthy school lunches and soccer fields — and this has a real impact on the potential of students. Kandice Sumner sees the disparity every day in her classroom in Boston. In this inspiring talk, she asks us to face facts — and change them.
One of the more interesting themes of her talk is the argument that our education system has never been designed to offer equal or quality opportunities to communities of color and that when it does occur it is random or potentially a result of private philanthropy rather than the education system itself. In one snippet of the conversation, she offered:
If we really, as a country, believe that education is the "great equalizer," then it should be just that: equal and equitable. Until then, there's no democracy in our democratic education.
On a mezzo level: historically speaking, the education of the black and brown child has always depended on the philanthropy of others. And unfortunately, today it still does. If your son or daughter or niece or nephew or neighbor or little Timmy down the street goes to an affluent school, challenge your school committee to adopt an impoverished school or an impoverished classroom. Close the divide by engaging in communication and relationships that matter. When resources are shared, they're not divided; they're multiplied.
You can watch her talk here.
Wednesday, October 12, 2016
Last year, advocates filed a lawsuit in Massachusetts that attempted to use the state education clause and school finance precedent to declare a cap on charter schools unconstitutional. The theory was that many current schools were so bad that they deprived students of a quality education. Since quality charter schools were down the road and could be expanded, the remedy was to grant students the access to more charter schools, which would require lifting the statutory cap on them. The theory, in many respects, resembled the strategy of the constitutional challenge to teacher tenure in California.
Last week, the trial court in Massachusetts dismissed the charter case. The court reasoned that the education clause does not create an individual right to education and, thus, does not create an individual right to demand access to other school opportunities and facilities. Rather, the education clause creates a duty on the part of the state to create a constitutionally adequate education system. Exactly how it does that is a matter of legislative policy and discretion, to which courts should defer. Plaintiffs' attempt to have the court insert their legislative preferences for those of the state is misguided.
I would generally agree with this basic rationale and certainly agree that plaintiffs' claims were a misguided use of the education clause. Their claim was really policy advocacy masquerading and constitutional analysis. With that said, I would caution the need for a little more nuance in dismissing such cases.
First, as I outline here, the notion of an education duty with no corresponding education right is highly problematic. If the state has a duty, it should be to someone or some group. While the Massachusetts trial court is correct that this does not mean that each individual student can demand individualized education, the constitution should require that the state create policies that ensure that the educational needs of individual students and students as a whole are met. If a policy is consistently denying students education, they should be able to challenge it and receive some sort of remedy. The duty-right distinction in other cases has been used as subterfuge to release the state from doing anything. Since there is no right, court can reason there is no basis for compelling the state to undertake its duty. The idea that this court might be adding support for that argument is worrying.
Second, the problem is particularly acute in school discipline and school finance cases. In discipline cases, some courts have used the duty-right distinction to flatly reject plaintiffs attempts to rely on their state's education clause to challenge suspension and expulsion. As a result, states can operate discipline systems that I argue here and here are entirely inconsistent with their duty to deliver equal and adequate education opportunities. In addition, in the traditional school finance case, there are numerous examples of states simply refusing to implement the remedies that courts have ordered. South Carolina, Kansas, and Washington immediately come to mind as examples in the past year. James Ryan and I have separately argued that when the state refuses to carry out its duty to implement a remedy to constitutional violations, it is within courts' power and responsibility to grant students immediate relief. This might be in the form of the right to exit their current public school and enroll in another public school. In other words, it should be beyond the state's discretion to force a student to remain in a school that the state refuses to bring up to constitutional standards. To be clear, however, this is not to say that caps on charters or student assignment statutes are unconstitutional or that students or their attorneys have the right to dictate where they should go to school. The point is simply that if the conditions in a particular school are unconstitutional, the state owes the students a remedy. If states, after the opportunity to do so, refuse to implement a remedy, courts can and should exercise injunctive relief on behalf of students.
For those less interested in doctrinal nuances, the trial court holding got it right: the cap on charter schools does not present a constitutional problem. Nonetheless, the initial lawsuit was enough to help get the issue of eliminating the cap on the ballot this November. So voters will get the final say. Recent polls indicate voters are against lifting the cap.
Tuesday, October 11, 2016
My forthcoming article Abandoning the Federal Role in Education: The Every Student Succeeds Act, California Law Review (2017), is available on ssrn. I offer this summary in the abstract:
Congress recently passed the Every Student Succeeds Act (ESSA), redefining the role of the federal government in education. The ESSA attempted to appease popular sentiment against the No Child Left Behind Act’s (NCLB) overreliance on standardized testing and punitive sanctions. But in overturning those aspects of NCLB, Congress failed to devise a system that was any better. Congress simply stripped the federal government of regulatory power and vastly expanded state discretion. For the first time in fifty years, the federal government now lacks the ability to prompt improvements in student achievement or to demand equal resources for low-income students. Thus, the ESSA rests on a bold premise: states will abandon their historical tendencies by voluntarily providing low-income students with equal educational opportunities.
Although the ESSA remains committed to equality on its face, it does the opposite in practice. First, the ESSA affords states wide latitude on student performance, accountability, and school reform. Wide state discretion opens the door to fifty disparate state systems, none of which guarantee equality. Second, the ESSA directly weakens two existing equity standards and leaves untouched a loophole that exempts eighty percent of school expenditures from equity analysis. Third, the ESSA leaves federal funding flat, eliminating the possibility that additional resources will offset the inequalities that the foregoing provisions permit. These changes to federal education law are so out of character that they beg the question of why the federal government is even involved in education at all.
Although Congress is unlikely to repeal the ESSA just months after passing it, it is set to expire by its own terms after four years. This Article proposes that Congress cure the ESSA’s flaws by increasing the federal investment in education to: 1) create the leverage needed for states to accept federal prohibitions on unequal funding practices; and 2) meet the outstanding needs of low-income students.
Tuesday, October 4, 2016
Last fall, teacher shortages swept states across the nation and caught the attention of major media outlets. Linda Darling-Hammond, Leib Sutcher, and Desiree Carver-Thomas's new essay in Huffington Post reminds us that the shortages are far from over. This fall is bringing a spate of stories similar to last year. As they write:
After years of layoffs during the fiscal recession, an upturn in the economy has allowed districts to begin hiring again. The problem is that many districts cannot find qualified teachers to fill the new positions. . . .
Teacher shortages were the topic of a recent gubernatorial debate in Indiana, with the Democratic challenger blaming the policies of the former governor for current shortages, while his Republican opponent pointed to a national crisis as a source of Indiana’s woes. With more than 40 states, plus the District of Columbia, reporting severe shortages in special education, math, and science, and states reporting the hiring of substitutes and individuals without credentials by the thousands, a national shortage seems plausible. Last spring, Indiana Governor Pence (now a vice-presidential candidate) signed into law a major scholarship bill subsidizing the preparation of prospective teachers in an effort to boost supply.
Two weeks ago, the Learning Policy Institute (LPI) released a report on teacher supply and demand that examines the data behind these shortages. We set out to understand the sources of these difficulties and what might be done to resolve them.
They also offer a set of solutions:
- Creating competitive, equitable compensation packages that allow teachers to make a reasonable living across all kinds of communities.
- Enhancing the supply of qualified teachers for high-need fields and locations through targeted training subsidies and high-retention pathways.
- Improving teacher retention, especially in hard-to-staff schools, through improved mentoring, induction, working conditions, and career development.
- Developing a national teacher supply market that can facilitate getting and keeping teachers in the places they are needed over the course of their careers.
To my relief, these solutions are very similar to those I pose in Taking Teacher Quality Seriously. The problem, I point out, is that past reforms have been premised on silver bullet solutions. Courts, moreover, have often encouraged this type of thinking. The needs of our students, teachers, and their learning environments are too complex for singular solutions.
Thursday, September 29, 2016
Wallet Hub recently ranked the best and worst states to be a teacher. The states with the lowest cost adjusted salaries are:
- Hawaii — $34,063
- South Dakota — $41,000
- Maine — $43,792
- West Virginia — $44,337
- Arizona — $46,029
Business Insider pointed out that "the two lowest-paying states happen to be on opposite ends of the cost-of-living spectrum: While Hawaii is notoriously expensive, South Dakota often ranks as one of the cheaper places to live in America."
It is also worth filtering these states through the lens of school finance litigation. New Jersey ranks as the best place to teach and, incidentally, has had the most effective school finance litigation in the nation. Illinois and Virginia, however, rank as the 3rd and 6th best states and yet have had some of the most miserable school finance results, with courts never acting to enforce their constitutions in any respect. The same could be said of Pennsylvania, which ranked 12.
At the bottom of the ranking is a more consistent list of states that have not experienced wins in school finance litigation or where courts have recently refused to enforce earlier decisions. Looking at the bottom and top of the list together, one might posit that the presence of school finance litigation and victories alone do not lead to good teaching environments, but the absence of litigation victories make poor environments more likely. Running that complicated analysis is beyond the scope of this short essay, but another more likely possibility is that most courts have simply mismanaged the issue of teachers in the context of school finance litigation. Thus, winning or loosing a school finance case has relatively little effect on the issues that matter the most in teaching.
In Taking Teacher Quality Seriously, I argue:
Although access to quality teachers is one of the most important aspects of a quality education, explicit concern with teacher quality too often has been conspicuously absent from past [court decisions] over the right to education. Instead, past [court decisions have] focused more on the broader question of funding. Though that litigation has narrowed gross funding gaps between schools in many states, it has not been enough to change what matters most: access to quality teachers.
This Article proposes that courts ensure access to quality teaching rather than the more amorphous right to adequate educational opportunities. The recent constitutional challenge to tenure suggests a theoretical step in this direction, but the focus on teacher tenure alone is misplaced. Eliminating tenure, without addressing more important fundamental challenges for the teaching profession, may just make matters worse. Thus, this Article argues for a broader intervention strategy that focuses on whether states equally distribute existing quality teachers and whether states take the various steps necessary to ensure the supply of quality teachers.
A more detailed discussion of the key issues involved in improving teaching quality is available here.
Wednesday, September 21, 2016
New York Trial Court Dismisses Charges That State Underfunded Small City Schools to the Tune of $1.1 Billion
On Monday, a New York trial court ruled in favor of the state in what has been called the Small Cities School Funding litigation. The plaintiffs’ claim centered on a couple of key facts. First, New York’s highest court previously held that the state was obligated to provide students with a sound basic education and that adequate funding was part of that duty. Thus, the court directed the state to reform its funding system and devise a system reasonably calculated to achieve that end.
Second, one of the ways of doing so was to engage in fact based analysis of the cost of meeting student need. The method the state settled on was a model schools approach that looked at what the most economically efficient and successful schools were spending on education. From this, the state could identify a base cost for education and then apply additional weights to account for variances in local costs and demographics. Third, in in 2007-08, the state adopted a budget based on this method. Fourth, in 2009, the state froze the budget and enacted new cuts. Fifth, since then, glaring deficiencies in educational quality have risen in the district.
The premise behind plaintiffs’ theory, as I see it, is clear. If the 2007-08 budget was adequate, subsequent reductions necessarily raise the possibility of a constitutional violation. If the 2007-08 budget only met the most minimal level of adequacy, a reduction would be a clear constitutional violation. If the 2007-08 budget exceeded minimal adequacy, a reduction, depending on its size, might also violate the constitution. According to plaintiffs’, the reduction in the eight plaintiff districts amounted to 1.1 billion over five years. At that size, it would seem altogether likely that the funding had dipped below adequate. Plaintiffs', of course, introduced weeks of evidence to demonstrate this point at the local level. In particular, they sought to show low outcomes, glaring deficiencies in the essential resources previously outlined by higher courts, and a lack of funding caused both the input and output deficiencies.
The trial court decision, however, frames plaintiffs’ claims differently, indicating that plaintiffs’ position was that the state is prohibited from reducing its budget once it is enacted. I suppose one could state it that way, but this ignores the context in which plaintiffs’ claims arose. The issue was not simply whether the state could reduce or freeze its budget but whether a budget that comes in well under the state’s own estimation of a rational and adequate budget is unconstitutional. In other words, can the state fund education at level that it, in effect, has admitted is below adequacy. Moreover, implicit admissions aside, plaintiffs sought to affirmatively show that educational inputs and outputs were producing a constitutional violations (regardless of what budget the state did or did not adopt in 2007 and beyond).
Another way of viewing the case is through burdens of proof. Generally speaking, the burden of proof is on plaintiffs to demonstrate a constitutional violation. This case, however, offers an excellent example of when the burden of proof might more appropriately rest on the state. As I detail elsewhere, school finance violations appear to have run rampant during and after the recession. Part of the problem is that states believed or knew they could get away with it. They could under-fund education for years and, worse case scenario, plaintiffs would be tasked with a number of difficult evidentiary burdens that would take even more years to sort out. Even when plaintiffs establish their case, courts have not forced states to retroactively fill budget gaps that they create. It is enough to fix them moving forward.
As a result, state legislatures may have little incentive to actually comply with constitutional obligation in regard to education. In my article Averting Educational Crisis, I argue that, among other things, courts should begin adopting bright line prospective rules and obligations so that states clearly know what actions they cannot take. This would also justify courts stepping in sooner and more clearly when states default on their obligations. I also argue that “courts must prompt states to improve the structure of their education decision-making process and planning.” One of those key processes is an empirically informed basis for school budgets. A model schools approach, as in the Smalls Schools litigation, is a good example. The key, however, is that when the state acts contrary to its own processes and knowledge about funding, that action should be prima facie evidence of a constitutional violation. Here, the trial court treated it as functionally irrelevant.
Wednesday, September 14, 2016
On September 7, Superior Court Judge Thomas Moukawser issued his post-trial decision, in Connecticut Coalition for Justice in Education Funding (CCJEF) v. Rell, finding that the state was not fulfilling its duty under the state constitution to provide children with a fair opportunity for a high school education, and ordering the state to submit remedial proposals within 180 days.
The court articulated a constitutional standard that requires the state to provide funding and resources to meet student need. The court wrote that "the state must at least deploy in its schools resources and standards" substantially rational and connected to teaching children and "things known to meet children's needs."
The court concluded that many of the state's education policies are irrational. "For instance," the court observed,
the state spends billions of dollars on schools without any binding principle guaranteeing that education aid goes where it's needed. During the recent budget crisis, this left rich schools robbing millions of dollars from poor schools. ... Instead of the state honoring its promise of adequate schools, [it] has left rich school districts to flourish and poor school districts to flounder ... [and] the system cannot work unless the state sticks to an honest formula that delivers funding according to local need.
Despite these statements, however, the court articulated and followed "a low constitutional threshold," based on its understanding of the plurality plus one (4-3) CCJEF remand order from the Connecticut Supreme Court. But, the court appears to have missed much of the supreme court's instruction and failed to fulfill its expectation that the trial court would flesh out the resources needed to meet the supreme court's broad constitutional resource standards.
Monday, September 12, 2016
A School District on the Brink of Collapse: Educational Opportunity at the Intersection of Race, Poverty, and Geography
For the past few years, Pennsylvania's education system has stood at the brink of disaster in some shape, form, or fashion. First came the state's decision to retreat from its new school funding formula and impose new cuts. Then came stories of completely upside down budgets, with public schools bleeding money to brick and mortar charter schools. Those were followed with rampant corruption and a federal indictment of a virtual charter school operator. Mixed in was the story of a Philadelphia girl who fell ill and died on a day when no nurse was present at school due to funding cuts. This brought national attention on the state's policies. This past school year did not look much better. It started with no state education budget. As late as March, the state was still flirting with finishing the school year in the same position--with no school budget. Along the way, there were stories of unpaid teachers, shuttered pre-kindergarten programs, extended winter breaks to save money, and the potential collapse of entire school districts.
The Erie School District was one of those districts pushed to the brink. Its superintendent indicated that the small district might be forced to dissolve itself and allow its students to be subsumed by the much larger neighboring suburban districts if the state did not pass a budget and adopt a more equitable funding formula. The state passed a budget and tinkered with the funding formula, but neither was substantial enough to change the underlying reality in Erie. According to NPR, it still is far from having the resources it needs and is considering dissolution:
Erie's schools have been pushed to the brink after six years of deep budget cuts, and he believes the children in the city's district — which predominantly serves students of color — are being systematically shortchanged.
That's in part because urban school districts in Pennsylvania face a particularly brutal logic.
They serve the poorest, most needy students. Yet, when it comes to state funding per pupil, most of them don't make the top of the list.
Even though Erie is one of the most impoverished districts in the state, and has one of the highest percentages of English language learners, the district currently receives less per-pupil funding from the state than hundreds of other districts.
Excluding pension costs, per-pupil spending in Erie is less than it was in 2008-09.
. . . .
The issue in Erie is even more complicated because of Pennsylvania's education funding policies. For most of the past 25 years, the state has distributed money without a rational, student-based formula.
So although Erie is one of the state's most challenged districts, the state sends more money per-pupil from its main pot of cash to most other districts in the county — including wealthier ones, with less pressing needs, that already have an easier time raising local funds.
"The differences between the resources we have in the county compared to in here are just shocking," said Brian Polito, chief financial officer for Erie Public Schools."
Polito used to have a similar job in North East, a rural district in Erie County. Drawing a comparison, he says last year Erie spent $6,000 dollars on its 18 libraries.
"In the school district that I came from, we had three libraries and our budget for library resources was almost $40,000."
It's examples like these that has Millcreek parent Genene Mattern completely supporting the stand that superintendent Jay Badams has taken on closing the city's high schools.
"People need to get mad. People need to get loud, because the more you just sit and let it happen, I think the more they figure, 'well, they're okay with that,'" she says.
The Erie district did receive a modicum of relief in the state budget that recently passed, including a $3.4 million boost in basic education funds, and a one-time $4 million dollar emergency supplement.
But the systemic issues will persist, and Erie's finances are slated to be in the same straits by the end of the school year.
Talk of dissolving Erie's district, however, is causing a lot of uneasiness in surrounding districts. They are predominantly middle-income and white, while Erie is predominantly poor and minority. Some of the concerns are more explicitly related to race, while some others hearken back to the facially neutral but coded language that opposed busing during desegregation in the south. The problem, they would say, is not race but the difficulties children will face when they attend something other than a neighborhood school. NPR also asks: "Would Erie's crisis even be happening if it was a majority white district?" This question, however, may be best directed at state policy than just local politics.
The unfortunate situation in which Erie's school children find themselves is the sad story of race, poverty, and geography in American schools. Geography is highly determinate of educational opportunity and probably even more so in most northern locales, where school districts are much smaller. The smaller we draw district lines, the higher the capacity to wall-in or wall-out particular neighborhoods. As a practical matter, districts become far more homogeneous than an overall county's or region's demographic population. In other words, small districts increase racial and socio-economic isolation. When this isolation is coupled with state policy that largely bases education funding on local property taxes, it produces highly unequal resources between districts. In other words, the districts become segregated and unequal. When this occurs, state level funding solutions become politically more difficult. The education world has been divided by race, class, and resources and there is little incentive for the "haves" to agree to plans that would send more resources to the "have-nots." In other words, the suburb votes are stacked against urban school districts.
The only apparent solution for districts like Erie is to cut through the structural morass of inequality and blow up the system--to, in effect, say we reject district lines, we reject inequitable funding systems, we reject a system that leaves inner city children to fend for themselves. We give up, and the state and its suburban school districts must now find a way to integrate us into its flawed system. No wonder those who control the levers of power are so upset in Erie. They should be upset in Harrisburg too.
Thursday, September 8, 2016
Trial Court Declares Connecticut's School Finance System Unconstitutional; Next Question Is Whether Supreme Court Will Agree
A Connecticut trial court has struck down the state's education system as unconstitutional and ordered the state to fix it within six months. The judge announced his opinion from the bench. According to local reports, Judge Thomas Moukawsher indicated that "Beyond a reasonable doubt, Connecticut is defaulting on its constitutional duty to provide adequate public school opportunities because it has no rational, substantial and verifiable plan to distribute money for education aid and school construction." Although the state Attorney General's Office gave no indications as to its next step, one has to guess that it will appeal. It is before state supreme courts that school finance litigation has gotten tricky over the past several years. Trial courts in Texas, North Carolina, and Colorado, to name just a few, have ruled in favor of plaintiffs based on a strong record of inequality and inadequacy. State supreme courts, however, have been more reluctant to uphold those decisions. Even when a supreme court has agreed that the state has failed in its constitutional duties, some have questioned the propriety of the remedy ordered by the trial court, reasoning that the nature of the remedy lies in the discretion of the state. So in North Carolina, the supreme court struck down the trial court's order for the state to expand pre-kindergarten opportunities, even though the state was clearly in violation of the constitution and had yet to devise an effective remedy.
On one hand, the trial court in Connecticut is pushing hard on the remedy by giving the state only six months to come up with a plan, which puts the opinion at risk of being perceived too aggressive on appeal. On the other hand, the court did not specify what that remedy should be. Assuming the trial court is correct on the underlying facts, this could be the way to thread the needle between asking for too much from the state and not asking for anything. This offers the trial court's opinion a better odds of being upheld on appeal, while also keeping the pressure on the state. Unfortunately, it tells us little about whether the state will do anything. Washington's Supreme Court has taken analogous action in recent years and largely been ignored by the state legislature. For more on the recent challenges of winning and defending school finance remedies, see here.
Wednesday, September 7, 2016
A group of public school parents has filed a lawsuit against the New York Education Department and the Budget Division. The challenge relates to the loss of school improvement funds. Each year the state, per federal law, is required to identify schools in need of improvement and those that persistently fail over the course of years get access to supplemental funds for two years. The funds are intended to help those schools improve.
The irony, however, is that nine schools were put on the persistently failing list and received funds for one year and expected to receive them again the second year. But when the New York Education Department updated its list of failing schools this year, nine schools that were on the list last year were not on it any longer. As a result, they lost their supplemental funding. In other words, they improved enough or the money worked well enough that the state terminated the second year of funding.
According to this New York Times story, the state is sympathetic to these schools' plight, but the parties cannot come to an agreement as to how to fix the problem--hence the lawsuit. The plaintiffs are well represented by the Education Law Center, so this is certainly a case to watch.
On another note, this unfortunate story reminds me of some of the past perversities of federal desegregation funding. As long as school remained segregated and under court order to continue efforts to eliminate the vestiges of segregation, it remained eligible to receive federal desegregation funds. But once a district actually integrated or was deemed "unitary" by a court, it lost its funding. This lead to a number of ironic desegregation cases, whereby school districts in the later stages of desegregation would side with plaintiffs and argue that they had not eliminated the vestiges of discrimination. As I discuss here, Title I of the Elementary and Secondary Education Act, to this day, also includes some perverse incentives. If a state undertook interdistrict desegregation to deconcentrate student poverty, it might very well end up receiving a smaller Title I grant from the federal government.
Tuesday, August 30, 2016
New Special Education Funding Settlement Highlights Troubling Differences between Federal and State Rights
The U.S. Department of Education and the South Carolina Department of Education have finally reached a settlement in regard to South Carolina’s failure to properly fund special education services. The U.S. Department of Education’s Office of Special Education and Rehabilitative Services found that that South Carolina was underfunding its special education programs to the tune of $51 million in 2010, with continuing shortfalls in subsequent years. The U.S. Department of Education emphasized that:
Under IDEA, a state must make available at least the same amount of financial support for special education and related services for children with disabilities each year as it did in the prior year. The consequence for failing to maintain financial support is a mandatory reduction in a future year’s IDEA allocation by the amount of the shortfall.
“This settlement is a victory for children with disabilities in South Carolina,” said Sue Swenson, Acting Assistant Secretary for the Office of Special Education and Rehabilitative Services. “Our Administration is committed to ensuring that schools have the resources they need to provide necessary supports and services to children with disabilities to ensure that they can leave school ready for college and career. We look forward to working with the South Carolina Department of Education to fully and effectively implement the terms of this agreement.”
Under the agreement, the U.S. Department will leave South Carolina's federal funding in place in exchange for South Carolina "appropriat[ing] additional state funds, above the amount required to maintain financial support under the IDEA, for special education and related services in the amount of $51,336,578." These funds are to be used over the next four years "to implement programs and initiatives focusing on increasing reading proficiency for children with disabilities." Get the full agreement here.
The settlement is a major victory for special education students in South Carolina, but it also begs questions in regard to South Carolina's overall education budget. Under the Elementary and Secondary Education Act, similar maintenance of effort standard apply to general education funding as well. If the state had failed in regarding to maintaining federal education funds, there is a strong chance it did so in regard to other education funds as well. Based on inflation adjusted calculations, South Carolina's education funding in 2014 was still 10 percent below 2008 levels. In other words, the cuts that were imposed during the recession had not been restored once the economy recovered. General maintenance of effort standards, however, are notoriously difficult to enforce and I do not expect forthcoming action on this front. And in fairness to South Carolina, it is not alone. More than half of the states fall into this category.
To put the matter in even more stark relief, the state supreme court declared the state's education funding system unconstitutional in 2014. Since then, however, the state has not taken any significant action to remedy various deficiencies outlined in the court's opinion. In other words, while the federal government has been able to prod the state into action for statutory violations, the court has been unable to do the same for constitutional violations. But again, South Carolina is not alone. A troubling trend has developed whereby states have flaunted their state constitutional obligations. This reality may signal the need to more seriously consider what role the federal government can and should play in ensuring funding equity and adequacy in the future. I hope to post a new paper on this topic in the next week or so.
Tuesday, August 23, 2016
The Constitutional Challenge to Teacher Tenure Has Failed in California, But Justice Liu Highlights One Problem
The constitutional challenge to tenure in California has ended with a whimper rather than a bang. Vergara v. State captured the national attention when a trial court held two years ago that teacher tenure and seniority statutes violated students constitutional right to education. As detailed here, the opinion was riddle with serious flaws. Thus, it was little surprise that the Court of Appeals overturned the trial court earlier this year. By then, however, the theory had already spread to New York and Minnesota courts and plans were afoot to bring similar claims elsewhere. Given the gravity of the trial court decision and the issues it decided, I was sure the California Supreme Court would have the final word no matter what. Yesterday, proved that theory wrong, as the California Supreme Court denied certiorari and left the Court of Appeals decision in place. Three Justices did dissent, arguing that the Court should have taken the case. To no surprise, Justice Liu--the former law professor and leading education scholar--offered this introductory explanation for why the Court should have taken the case:
This case concerns the constitutionality of California's statutes on teacher tenure, retention, and dismissal. . . . . One of our criteria for review is whether we are being asked "to settle an important question of law." (Cal. Rules of Court, rule 8.500(b)(1).) Under any ordinary understanding of that criterion, our review is warranted in this case. As the trial court observed: "All sides to this litigation agree that competent teachers are a critical, if not the most important, component of success of a child's in-school educational experience. All sides also agree that grossly ineffective teachers substantially undermine the ability of that child to succeed in school." The controversy here is whether the challenged statutes are to blame for the hiring, retention, and placement of grossly ineffective teachers. Because the questions presented have obvious statewide importance, and because they involve a significant legal issue on which the Court of Appeal likely erred, this court should grant review. The trial court found, and the Court of Appeal did not dispute, that the evidence in this case demonstrates serious harms. The nine schoolchildren who brought this action, along with the millions of children whose educational opportunities are affected every day by the challenged statutes, deserve to have their claims heard by this state's highest court.
Justice Liu goes on to distinguish the two different groups of students on whose behalf Vergara was brought: