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:
Monday, August 22, 2016
What Does the New Public Advertising Battle over Charter Schools Tell Us about Overall Education Debates?
Last week, the story was the potential rift between local minority communities and their national and state leaders. This week, the story may be the amount of money being spent to counteract those those national and state level leaders who oppose charter school expansion. The Boston Globe reports:
A new $2.3 million ad boosting the expansion of charter schools in Massachusetts lists the campaign’s top five donors on screen, in accordance with state law. But the singularly bland names, including Strong Economy for Growth and Education Reform Now Advocacy, give no hint of who is writing the checks.
Four of the five donors to the procharter committee are nonprofit groups that do not, under state law, have to disclose their funders, allowing the individuals backing the effort to remain anonymous.
The cloak of secrecy surrounding the financing of what could be the most expensive ballot campaign in state history has frustrated election officials and underscored the proliferation of untraceable money in political races across the country.
. . . .
The ballot campaign known as Question 2 — which would allow for the creation or expansion of up to 12 charter schools per year in low-performing districts — is expected to smash the $15.5 million that was spent, mostly by gambling interests, to defeat a 2014 ballot question that would have repealed the state’s casino law.
This influx of money could be coincidental, but one has to wonder whether it is a response to the charter lobby's sense that things are slipping away.
Monday, July 25, 2016
It is not altogether clear what Governor Christie was thinking earlier this month/late last month when he offered this radical proposal (as reported by the Washington Post):
Christie is proposing a replacement for the current weighted-student formula that would move a lot of money away from the urban districts to suburban districts. In his proposal, Christie said that he wants to give every school district in the state the same amount of per-student aid per district — $6,599 — in what he said would help lower property taxes in many suburbs. Special education funding and charter schools may be exempt from the new formula, he said.
“It is time to change the failed school funding formula and replace it with one that will force the end of these two crises — the property tax scandal and the disgrace of failed urban education,” Christie said in a speech at a high school on June 21. . . . An analysis of the “Fairness Formula” by Mark Weber and Ajay Srikanth says that it will hurt many districts serving large numbers of at-risk students. . . . It will, the analysis said, reward the wealthiest districts — which are already paying the lowest school tax rates as measured by percentage of income — and will force the poorest districts to cut their budgets, increase local property taxes or both. The authors of the analysis also disputed Christie’s charge that schools enrolling high percentages of at-risk students “have failed,” noting that research shows at-risk students and students with limited English proficiency have made big gains on test scores over the past two decades.
In some respects, this move is not out of character. Christie cut over a billion dollars in funding for low-income districts during the recession, before the New Jersey Supreme Court forced the state to replace a large chunk of the funds--those reserved for the plaintiffs districts in the long running Abbott line of cases. In another respect, the timing is strange. Christie made time during his auditions for vice president and national policy arguments to go after schools at home. From afar, I had almost forgotten that he was still governor of New Jersey. This timing strikes me as odd, save for the fact that his attack on schools may be more about tax policy than school policy. Suburban tax payers would get a huge windfall under his proposal. One can only hope that now that his chance for a vice presidency is gone, so too are his designs for a new funding formula.
Friday, July 8, 2016
Kansas Legislature Meets Court's Equitable Funding Duty Deadline, Allowing Schools to Open in the Fall by Molly Hunter
On June 27, 2016, four days prior to the Kansas Supreme Court's July 1 deadline, the parties in the Gannon educational opportunity lawsuit filed a stipulated agreement with the Court. They documented the Legislature's commitment to distribute funding to low-wealth school districts so as to comply with the state constitution.
The Kansas Supreme Court issued an order the next day indicating that the State -- in adopting Substitute for House Bill 2001 -- had complied with the Court's most recent order and could use the revised system to fund the public schools.
"Plaintiffs are extremely pleased that schools will be opening in the fall," said Alan Rupe, co-counsel for plaintiffs, "and that funding will be distributed in a manner that comports with the Kansas Constitution's equity requirement."
The Legislature's failure to maintain a fair and adequate state school funding system almost led to a constitutional crisis. But in a special session called to address the fair distribution issue, the Legislature found a way to add $38 million to the state aid total and allocate it to the underfunded districts.
Nonetheless, the Gannon case is not resolved because the Kansas Constitution also requires adequate school funding. The three-judge Gannon Trial Court Panel heard the evidence on adequacy and ruled that the State is underfunding its schools. The State appealed to the Kansas Supreme Court, which recently scheduled oral argument on this question for September 21.
Each side will have 60 minutes to present argument to the Court on two issues: (1) whether the Legislature has met its duty under Article 6 of the Kansas Constitution regarding adequacy; and (2) what remedy would be appropriate if the Court affirms the Panel's previous holding that the current funding levels are inadequate.
Education Law Center Press Contact:
Molly A. Hunter
Education Justice, Director
973-624-1815, x 19
Wednesday, June 22, 2016
Last week, the Nashville's school board decided join Chattanooga, Memphis, and a handful of other school districts in suing Tennessee over its school funding formula. While the other districts have filed broader complaints that focus on whether the state or local districts should pay for things like the majority of teachers’ salaries, Nashville is specifically suing over the costs to educate English language learners who compromise about 43 percent of the district’s student body. While the state has made some boosts to the education budget recently, such as adding $14 million to ELL spending, the increase do not fully address the global funding problems that the other districts have raised in their lawsuits.
In both the Shelby and Hamilton County Schools suits, the school systems claim all areas of the schools are underfunded and not just ELL funding. The school districts allege that the State is violating its own statutes by not funding the requisite amount of classroom costs and instead making the districts cover the difference. More on the Memphis lawsuit here; More on Hamilton County here.
Earlier in the year, I discussed here the potential difficulties of having more than one school funding lawsuit proceeding in the state at the same time and a trial court's refusal to certify one of the earlier lawsuits as a class action. Now, with three of the state’s larger school districts on board, consolidating the cases into one is even more compelling. A remedy in regard to any one of these districts will significantly impact the entire state's education budget. A remedy in regard to all three would likely require the state to start from scratch in rethinking its formula and budget. With that in mind, other districts are likely to join or intervene at some point. But so long as the cases remain separate, the question would remain as to which lawsuit to join. Then again, maybe the plaintiffs are playing a more complicated strategy, hoping to put more pressure on the state by starting several smaller fires. I have not seen that before, but it is a plausible strategy.
Friday, June 17, 2016
Chalkbeat reports that the Denver school board has voted unanimously for a new bond package and mill levy override that would raise an additional $628 million in taxes for school construction and other education programs. To take effect, it has to be approved by the voters in November. It would "allow Denver Public Schools to build new schools, renovate old ones, install heat mitigation systems such as air conditioning in its hottest schools and increase the number of schools able to provide devices such as computers to every student." In addition, the Board approved the creation of two new charter schools and to allow three others to take over space in current school district facilities. The charter expansion in Denver has been all over the news as of late and raises a whole new host of issues. I won't rehash those here, but rather leave them to the problems outline here and here. The point of this blog is to contrast Denver's package with the one South Carolina just turned down.
South Carolina is currently under order from the state supreme court to comply with its constitutional mandate to ensure minimally adequate public education. Denver is under no such order. To the contrary, the Colorado Supreme Court, albeit under weak reasoning, has recently rejected two different constitutional challenges to the state's failure to fund education. Yet, Denver is poised to come up with $628 million in new funds just for its school district alone. The South Carolina Senate just turned down a $200 million bond package that would have covered the entire state. Denver has approximately 79,000 students. South Carolina has in excess of 700,000. While the South Carolina House already approved the bond package, the South Carolina Senate indicated it needed more time to consider it. It now adjourns for the year, which means it will, at best, consider it in 2017, more than two decades after the lawsuit against the state was first filed.
Wednesday, June 15, 2016
Over the past few years, Pennsylvania schools have experienced what may have been the biggest financial crisis of our lifetime. For those who follow this blog, the schools went almost the entirety of this past school year without a budget. As a result, some closed earlier for the winter break, opened late, eliminated programs, asked teachers to work without paychecks, and a parade of other horribles. Just weeks ago, the Erie School District indicated it might permanently close the doors of its schools, presumably dissolving itself and waiting to be absorbed by another district.
After more than a year of wrangling, the state has finally adopted a new school funding formula that will purportedly address the problems of high need districts. On its face, the formula almost sounds too good to be true. The formula has a heavy weighting system that accounts for poverty, student disabilities, and English Language Learner needs, among other factors. Schools are funded on a per pupil basis and these weightings allow districts to, in effect, double, triple, and quadruple-count some students for purposes of funding. According to Newsworks, this means, for instance, that while York's actual enrollment is 7,737, the "final enrollment figure used to decide how to divide money is adjusted up to 52,449." See here for an interactive map that provides the actual and adjusted enrollment for all the state's districts.
But there is one enormous catch. Newsworks indicates that the money that flows through this new formula "reflect[s] only a tiny fraction of the state's entire basic education subsidy. Lawmakers plan to use the formula to disperse only new increases in aid – which, in the near term, will barely affect the disparities that were created through decades of non-formula-based distributions, when not even shifts in enrollment were tracked. This year, of a $5.6 billion budget, the general assembly sent about $152 million through the formula — under 3 percent."
This surely made the formula palatable to those wealthy districts that benefit from old system, but the state is setting itself up to create an overall funding scheme that is entirely irrational. The federal funding formulas for low income students illustrate this point the best. As it currently stands, there are four separate and complex funding formulas at the federal level, along with a host of other grant programs. Each time Congress came up with a potentially better formula, it added it to the other formulas, rather than replacing older flawed formulas. As demonstrated here, the problem is that these four formulas now counteract one another in myriad ways and the result is an overall funding stream that produces random and irrational results. No relevant constituency is consistent advantaged or disadvantaged.
If Pennsylvania, like Congress, does nothing more than add a good formula on top of other dominant flawed formulas, it is wasting everyone's time and doing nothing to solve the underlying problem. If Pennsylvania plans to phase out the old formulas in future years and drive the lion's share of money through the new formula, it may have come up with something that actually helps students who need it. Unfortunately, Pennsylvania does not have a good enough track record to hold out too much hope on the latter.
Tuesday, June 14, 2016
Two weeks ago, the Kansas Supreme Court struck down the state's school funding scheme again. The Supreme Court also upped the stakes in the long running battle to get a recalcitrant state legislature and governor to comply with the constitutional obligation regarding education: it set a June 30 deadline for action. If the state does not act, the Court indicated it would, in effect, shut down schools. As discussed here, Kansas is one of just two courts that have stood strong against education funding cuts over the past eight years. If Kansas (or Washington) fails, there may be little hope elsewhere. Courts cannot win these battles by cowering away from them. In fact, cowering only undermines courts over the long term. Yet, standing strong comes with its own risk: that states will just ignore courts all together.
For now, at least, the Kansas Supreme Court's willingness to stand its ground is finally paying off. Governor Brownback has called a special session of the legislature to implement a solution and the grandstanding appears to be largely over. The Wichita Eagle reports,
“They’re basically saying $38 million more and you’re set,” Brownback said, referring to the amount it would cost to restore the state’s old formula for equitable funding. Lawmakers discarded that formula when they adopted a block grant form of funding last year.
Brownback signed the proclamation for a special legislative session – the 23rd in the state’s history – on Wednesday afternoon. He noted he does not have the power to tell lawmakers what to do – he can only call them back for a special session.
As the primary ringleader for defunding schools, Brownback cannot entirely concede and still save face. For instance, he said, “What I find so irritable about this is that the remedy that the court is putting in place, which is to shut the schools down over a $38 million dispute … just seems so completely out of bounds.” But what I find in this and the above statements is a resignation to the fact that the time has come to fund schools, whether he likes it or not. Some rank and file members are predictably grumbling about defying the courts and another is suggesting a constitutional amendment. An amendment is the one legitimate means to avoid funding schools, but at this point, neither an amendment nor outright defiance seems likely. Of course, anything could or could not happen between now and June 30, but my initial read is that Kansas's Supreme Court has run a very dangerous gauntlet to preserve the constitutional right to education in Kansas and lend support to the continued movement in other states. For more on the overall stakes in this battle, see here.
Tuesday, May 31, 2016
Kansas Supreme Strikes Down State's Funding Scheme Again, Setting Important Example for Others to Follow
Back in February, the Kansas Supreme Court ordered the state to remedy its unconstitutional financing system (for the umpteenth time). The state passed responsive legislation, but last week,the Kansas Supreme Court struck it down as well. For those who have not followed the school finance battles in Kansas, this is not the story of a runaway court, but a runaway legislature that has refused to recognize the authority of the court. The earliest of the Kansas Supreme Court's decisions were mild by most accounts. But rather than comply, the legislature has ignored its duty to provide its students with equal educational opportunities. It has even gone so far as to threaten the funding and appointment process of the judiciary itself.
The Kansas Supreme Court, however, has not flinched from its responsibility to adjudicate facts and apply the law. In this respect, the Kansas Supreme Court is becoming an outlier in school funding and quality cases. As detailed here, courts have increasingly shied away from enforcing the constitution and confronting legislatures since the recession. Even once those tax revenues rebounded, the trend continued. For instance, two weeks ago, the Texas Supreme Court overruled a trial court's order in support of low wealth districts, in litigation that has spanned for decades and almost uniformly supported the position of more equity and adequacy. The less than compelling reasoning in the Texas Supreme Court's new opinion suggests the court is setting a new and troubling course.
This is what makes the Kansas Supreme Court's opinions last week and earlier this year so important. They (along with recent opinions from Washington state) may represent the best and last hopes from separation of powers between the legislature and courts, the enforceability of the constitutional right to education, and the rule of law. If the rule of law cannot prevail in Kansas, it likely only spells more bad news for schools in other states.
As I argue in Averting Educational Crisis, there is nothing easy about forcing the state to comply with its duty to deliver equal and adequate education. That difficult job grows exponentially harder during times of economic crisis, so hard that it is nearly impossible at times. That job, however, does not become any easier by running from it. To the contrary, the more courts look the other way, the more they look like political actors and loose the institutional authority and respect necessary to have states concede to the rule of law. In other words, when courts refuse to enforce the constitution today, they jeopardize it for years to come.
The Kansas Supreme Court clearly has a sense of what it is fight for. It wrote:
The political necessities of the legislature are similarly irrelevant to our review. The constitution of the people of Kansas does not change its requirements based on legislators' support, or nonsupport, of proposed legislation. Rather, the Kansas Constitution "is the supreme and paramount law, receiving its force from the express will of the people." Just as the legislature has the power and duty to create a school funding system that complies with Article 6, it is this court's power and duty to determine whether an act of the legislature is invalid under that constitution, i.e., if the legislature has met its duty. A law's political expediency or level of support will not shield it from such review. After considering all of the arguments, we conclude the State has failed to meet its burden on this issue in the remedial phase of this case. Specifically, the hold harmless provision fails to sufficiently mitigate the increased inequities created by applying the capital outlay aid formula to the LOB funding system. At best, H.B. 2655 does no more than take away funds from the districts, then give the funds back, simply to restore the same level of inequity we ruled unconstitutional in Gannon II, 303 Kan. at 720. Additionally, it worsens disparity in accessing LOB funds among aid-qualifying districts.
Get the full opinion here.
Wednesday, May 25, 2016
New Jersey's Failure to Assess Effects of Charter School Expansion on Already Underresourced Newark Schools Moves to Court of Appeals
This from the Education Law Center:
Acting on behalf of Newark school children, Education Law Center has filed an appeal of NJ Commissioner of Education David Hespe’s February 2016 approval of a massive enrollment increase in seven Newark charter schools over the next five years.
At issue in the appeal is the data and research evidence presented by ELC to the Commissioner demonstrating that expanding charter enrollments at this time would exacerbate the budget crisis in the State-operated Newark public schools (NPS) and trigger even deeper cuts to teachers, support staff and programs in already under-resourced NPS schools. ELC also presented evidence to show that expanding charters would further concentrate at-risk students in district schools, especially students with disabilities and English language learners (ELLs). These students require additional programs and interventions that have been reduced and cut in NPS schools over the last several years.
“This appeal is not about the merits of charter schools or district schools, but rather about the State’s overarching obligation to ensure a thorough and efficient education for all public school students in Newark,” said David G. Sciarra, ELC Executive Director. “This appeal raises the abject failure of the Commissioner to perform his mandated constitutional duty to make certain that before charter schools can expand, all Newark children have the resources they need to succeed in school, whether they attend a district or charter school.”
“The Commissioner simply ignored the overwhelming evidence in the record that a further increase in charter enrollment at this time will harm children and schools throughout the city,” Mr. Sciarra added.
In their applications for renewal, seven Newark charter schools submitted requests to Commissioner Hespe that, taken together, would greatly increase overall charter enrollments over the next five years. The Commissioner approved these requests without explanation and without providing reasons. The approved charter increase totals nearly 9,000 additional students over five years, from just under 10,000 to almost 19,000 students.
Several of the charters sought substantial increases. For example, Team charter school, operated by the New York-based KIPP network, secured the green light to increase enrollment from 3196 to almost 8000 students and to add up to six new charter schools. The Commissioner’s approvals will almost double the current enrollment in these seven charters by the 2020-21 school year.
The approved expansion will also increase the seven charters’ share of Newark’s total charter population from 20% to approximately 37%. If enrollment in the district and in the fourteen other charters remains stable, the Commissioner’s decision will mean that by 2020-21, nearly half of all Newark’s school children will be enrolled in the charter sector.
Before the Commissioner, ELC submitted extensive comments on the charters’ requests for expansion, including detailed research documenting how the State’s decision to rapidly expand charter enrollments from 2009 through 2015 has put the NPS budget in crisis. The data shows charter enrollments nearly tripled to 12,885 students during that period, while the percentage of students with disabilities and English language learners (ELLs) in NPS schools increased significantly.
Further, while the NPS budget has been flat since 2011 as a result of the State’s failure to fund New Jersey’s school funding formula, payments from the budget to charter schools have risen dramatically to $225 million, representing 27% of the total NPS budget. ELC also documented that the combination of flat budgets and rising charter payments has triggered severe reductions in spending on regular classroom instruction, guidance and other support services, and special education and bilingual education in NPS schools.
The NJ Supreme Court, in several rulings, has imposed upon the Commissioner an affirmative constitutional obligation to carefully evaluate the impact that opening or expanding charter schools will have on the loss of funding and the segregation of students in districts served by the charters.
“The Commissioner must meet his constitutional obligation to assess and determine the impact that the loss of funding from increased charter payments will have on the ability of the Newark district to provide a thorough and efficient education to all public school children,” said Michael Stein of Pashman Stein in Hackensack, the firm representing ELC on this appeal. “The Commissioner did not evaluate the impact of charter expansion on the NPS budget, even though ELC presented a compelling record that the expansion would mean less funding, more cuts to essential staff and programs, and the further concentration of students based on disability and English language proficiency in NPS schools.”