Monday, September 15, 2014
Yesterday, the Washington Post ran a story on the filth in Chicago's public schools. One principal charges that ever since the school system turned over its janitorial services to private contractors (a $340 million contract), his school has been inundated with roaches, rats, and garbage. Nearly half of the district's principals reported the same in a recent survey. Things may very well get worse. One of the contractors is set to lay off approximately 20% of the custodians currently on the project.
The story closely intersects with a point I made in a recent paper on what makes education public and how private markets fit into education. I distinguished between publicly funded education and public education. I also distinguished the various services that the government delivers, positing that some services entailed public missions and value judgments, and others did not. I noted, for instance, that garbage pickup involves relatively little value judgment and mission development, whereas education does. Thus, one might be less concerned about the outsourcing of the former, and more concerned about the latter.
Thursday, September 11, 2014
In late August, a group of 14 school districts filed suit against the state of Mississippi, alleging that its failure to fully fund the Mississippi Adequate Eduction Program since 2010 is unconstitutional. The suit seeks to recover past funds and to enjoin the state to fully fund the program in the future. According to the litigants, the state has underfunded education by $1.5 billion since 2010.
The litigants are giving other districts 30 days to join the suit, and former Governor Ronnie Musgrove is crisscrossing the state trying to encourage them. “School districts cannot live without this funding, and local districts are being forced to raise local taxes to try to make up for the money that is being held hostage in Jackson,” said Musgrove. “We hope to get as much money back as possible for every school district. We hope to make education a top priority in Mississippi again. We hope to create opportunity for everyone in Mississippi. The only way to do that is to legally force the state to fully fund education.”
Monday, September 8, 2014
Last year brought a spate of North Carolina cases involving charter schools claiming that local districts were denying them appropriate access to the districts' rainy day funds. The charters won and were able to immediately tap into funds that the districts had set aside for long term emergency. Apparently, the response of some districts was to reclassify funds to exempt them from the fund sharing statute implicated in prior cases. That reclassification of funds lead to another new case, Thomas Jefferson Classical Academy Charter School v. Cleveland County Board of Education, 2014 WL 4290557 (N.C. Ct. App. Sept. 2, 2014), in which the Thomas Jefferson charter school alleged that the school board "wrongfully moved approximately $4.9 million from the local current expense fund, which must be shared with the charter schools, to a 'special revenue fund,' which is not shared."
Friday, September 5, 2014
In 2012, the Washington Supreme Court held that the state was failing in its constitutional duty to make ample provision for education. It gave the state until 2018 to fix the problem. Such a long time line did not portend well when it was issued, as lawmakers tend to drag their feet unless pushed on these issues. Due to the state's failure to make significant progress over the past two years, the plaintiffs asked the court to hold the state in contempt and the court is waking up to general realities. In a hearing before the court on Wednesday, several members of the court seemed prepared to hold the state in contempt if it does not act quickly to pass new funding legislation in its upcoming legislative session. One justice went so far as to suggest the court should go ahead and hold the state in contempt now, remarking of the state's failure to act over the past two years: "Why should we think that you're going to do something different?" Unfortunately, it has taken standoffs and this level of aggressiveness by plaintiffs and courts to spur reform in several other states in the past. For instance, in Arizona, the state was held in contempt for about a month with enormous fines each day before it acted to address inadequate funding for English Language Learners. Signally its seriousness through oral argument may be a good way of getting the state to act without formally escalating the problem.
More on the oral argument and case here.
Tuesday, September 2, 2014
MALDEF secured a major victory in its long running school finance litigation in Texas. For those who have not followed the litigation, this is just one in a long line of victories. Unfortunately, plaintiffs must continually return to the courts in Texas, as its funding system perpetually backslides or fails to afford a full remedy. Below is MALDEF's press release and a link to the opinion.
TRAVIS COUNTY DISTRICT COURT DECLARES CURRENT TEXAS SCHOOL FINANCE SYSTEM UNCONSTITUTIONAL--AGAIN
Current Finance System Violates Students’ Rights to an Adequate and Equitable Education
AUSTIN, TX – Today, Travis County District Court Judge John K. Dietz issued his final judgment, declaring the current Texas school finance system inadequate, unsuitable, and inequitable for Texas school children under Article VII, Section 1 of the Texas Constitution, and in violation of the prohibition on a state ad valorem tax under Article VIII, Section 1-e. “Rather than attempt to solve the problem, the State has buried its head in the sand, making no effort to determine the cost of providing all students with a meaningful opportunity to acquire the essential knowledge and skills reflected in the state curriculum and to graduate at a college- and career-ready level,” Judge Dietz stated in his scathing rebuke of the school system. This long-anticipated ruling follows a three-week hearing earlier this year after Judge Dietz reopened the evidence in the wake of statutory changes made to the public education system during the 2013 Legislative session. On February 4, 2013, he issued a similar ruling from the bench following a three-month trial.
Wednesday, August 20, 2014
Education Law Center Calls on New Jersey to Assess Effect of Charters on Segregation and School Funding
The following is a repost of an Eduction Law Center press release:
In comments filed today, Education Law Center is calling on the NJ Department of Education (DOE) to issue rules requiring the State Education Commissioner to assess the impact of NJ charter schools on both student segregation and local school district budgets.
"The New Jersey Supreme Court has made clear the Commissioner's obligation to assess whether a proposed or operating charter school is causing student segregation or depriving district schools of necessary funding, both of which would violate the right of district students to a thorough and efficient education under our State Constitution, " said David Sciarra, ELC Executive Director.
"The State's failure to properly codify this obligation in the rules governing New Jersey's charter school program is a violation of constitutional law," Mr. Sciarra added.
In several rulings, most recently in December 2013, the NJ Supreme Court firmly established the responsibility of the State Commissioner to determine whether a proposed charter school would exacerbate racial segregation and/or deprive students in district-run schools of essential funding.
Tuesday, August 19, 2014
At the surface level, California's new funding formula is impressive in its structure. It sets a base per pupil grant for all students, adds 20 percent to that base for each disadvantaged student a school enrolls, and allots a 50 percent bump per pupil for schools enrolling more than 55 percent high needs students. In other words, it ensures that all schools receive some supplemental resources for every disadvantaged student, but focuses the most resources on high poverty schools, where research shows that concentrated poverty depresses academic outcomes. Implicit in this framework is the notion that low-poverty schools do not need significant funds to support low-income students. Hence, the basic 20 percent bump is below the additional funding that most research says high needs students need. Conversely, high poverty schools need an exponential bump, which this formula aims toward. This type of formula is generally consistent with the formula that I have argued Congress should adopt for federal funds (see here for more). If a critique of California's formula is to be had, it may be in regard to the base amount itself.
Wednesday, August 13, 2014
An extremely troubling movement is brewing in Ohio. The Ohio Constitutional Modernization Commission is considering changes to the state constitution's education clause. In particular, it is considering eliminating the language that requires the state to provide a "thorough and efficient" system of public schools. According to Chad Readler, the chairman of the education committee at the Commission, his intent is not to undermine education or reduce services, but to eliminate the courts' ability to intervene and enforce the education provision. He claims that the current education clause has been used by advocates to get their way in court when they cannot get it through the legislature. He is, of course, referencing the DeRolph v. State of Ohio line of cases, in which the state supreme court found the state's financing system unconsitutional based on its irrational distrubution of funds and the wildly unequal results it produced.
For those who have not read the DeRolph cases, I recall--without rereading--state policies that forced school districts to take out loans to cover the budget shortfalls they incurred every year and repay the loan the following year, which caused a vicious cycle of underfunded and debt-strapped school districts. The court identified, at least, five other irrationalities and flaws in the
Monday, July 21, 2014
How the Kansas Courts Have Permitted and May Remedy Racial Funding Disparities in the Aftermath of Brown
Preston Green, Bruce Baker, and Joseph Oluwole's new article, How the Kansas Courts Have Permitted and May Remedy Racial Funding Disparities in the Aftermath of Brown, is now available on westlaw at 53 Washburn L.J. 439 (2014). The introduction summarizes it as follows:
After the Brown v. Board of Education decision, black students have primarily used school desegregation and school finance litigation to attain equal educational opportunity. School desegregation litigation has focused primarily on breaking down the official barriers that prevented black students from attending public schools with white students. School finance litigation has sought “to increase the amount and equalize the distribution of educational resources and, in so doing, to improve the academic opportunities and performance of students disadvantaged by existing finance schemes.” This Article explains how the failure of the two legal strategies to address racial funding disparities in the aftermath of Brown enabled the Kansas legislature to create a school finance formula that disadvantaged the school districts affected by that famous decision. This Article also explains how Kansas's recent school finance litigation may provide insight as to how state education clauses might be used to enable students in high-black-concentration school districts to obtain equal educational opportunity.
Thursday, July 17, 2014
The Oklahoma Board of Education brought suit claiming that the legislative repeal of Common Core in the state violated the Board's constitutional authority over the "supervision of instruction in the public schools." On Tuesday, the state supreme court heard oral arguments in the case. Four hours later, they issued their decision, Pack v. State, remarkable in its brevity. It stated the issue in one sentence, declared jurisdiction over the case in two sentences, and reached its holding in one sentence: "HB 3399 does not violate art. 13, §5 or art. 4, §1 of the Oklahoma Constitution."
Wednesday, July 16, 2014
The Times Union ran this commentary by David Sciarra and Billy Easton yesterday. Thanks to David for sharing.
Sound Education Child's Right
With much fanfare, a novel lawsuit filed in Staten Island alleges teacher tenure, due process and lay-off procedures violate the constitutional right of New York school children to a "sound basic education."
Without offering specifics, the complaint baldly asserts that these procedures result in classrooms filled with "incompetent" teachers, especially in schools serving at-risk students.
The complaint also presents no evidence to suggest that ending tenure or altering due process protections for teachers will somehow improve student outcomes. Nor could it because there is none.
Monday, July 14, 2014
An interesting new student note, taking an international comparitive law approach to the right to education, is now available on westlaw. See Yanet Marisol Beniteza, The Right to Education: Comparing Educational Rights in Japan, El Salvador, and the United States, 36 Hous. J. Int'l L. 749 (2014). The introduction states:
Education is fundamental in the developmental stages of children and is generally referred to as “the key which allows people to move up in the world, seek better jobs, and ultimately succeed in their lives.” The subject of education in the United States is one that is widely discussed, and calls for education reform have been made. Not only is this the case in the United States, but also in countries around the world. This is such a high-priority topic in the international community that several international instruments guarantee the right to basic education. The right to education was included in the Universal Declaration of Human Rights, the Convention on the Rights of a Child, and the International Covenant on Economic, Social and Cultural Rights. This Comment will analyze the right to education as found in these three international instruments; the interpretation of the right to education by signatories of these treaties; and the steps that nations have taken in order to ratify the treaties.
Friday, July 11, 2014
This spring and summer, the Illinois legislature has been working to reform the way it funds schools. This move is rather remarkable given that the state has been sued so many times for its inequitable funding, the courts have dismissed the claim as nonjusticiable each time, and, for the past few decades, the state has had one of the most inequitable funding systems in the country.
A bill reforming the funding formula has passed the state senate, but did not make it to the house in time for full consideration prior to the summer recess. A special session may be called to deal with the bill. If not, it will be at the top of the agenda for the next session. Either way, there is significant optimism that it will eventually pass.
The current bill would consolidate the current funding formulas into one that prioritizes funding based on student need. Several districts stand to substantially benefit. The state board of
Wednesday, July 9, 2014
Study Links Funding to Student Achievement, But Also Finds Many Schools Lack Sufficient Funds While Others Misallocate What They Have
The Center for American Progress has released an updated study of school district spending practices. It attempts to measure "bang for buck," assessing the extent to which schools spend money in ways that improve achievement. Accepted is the notion that "money matters," but not all schools know how to best divert their funds. The study, Return on Educational Investment: 2014, makes the following major findings:
• Low educational productivity remains a deeply pressing problem, with billions
of dollars lost in low-capacity districts. . . .
• Some of the nation’s most affluent school systems show a worrying lack of
productivity. Our analysis showed that after accounting for factors outside of
a district’s control, many high-spending districts posted middling productivity
results. For example, only slightly more than one-third of the districts in the top
third in spending were also in the top third in achievement.
• In some districts, spending priorities are clearly misplaced. Texas is one of
the few states that report athletic spending at the district level, and the state’s
data suggest that more than 100 districts in Texas spend upward of $500 per student
on athletics.2 A few districts in Texas spend more than $1,000 per student
annually on athletics. To keep these numbers in perspective, the average unadjusted
per-pupil operating expenditure in the state in 2013 was around $10,000.
• State approaches to improving fiscal effectiveness vary widely. Only a few
states, such as Rhode Island, currently take a weighted-student funding based
approach to education, where money is distributed to schools based on student
need. . . .
• States have failed to make fiscal equity a priority and large funding gaps
exist across school districts. In our analysis, we calculated the expenditure difference
between a district that spends near the top and near the bottom in each
state. . . . [W]e found that gaps among school districts remain high. In New Jersey, the difference between the wealthiest districts and the least wealthy district was $6,200, after
adjusting for cost of living and student demographics.
• State budget practices are often inconsistent and opaque. Key expenditurerelated
definitions vary, and while almost every state now has a common chart of
accounts—a type of budget dictionary—the specifics are not comparable across
Tuesday, July 8, 2014
Seeking to enforce the will of Colorado voters, who amended their state constitution to guarantee reasonable school funding, citizens from around Colorado filed a lawsuit, Dwyer v. State of Colorado, on June 27, 2014.
Amendment 23 was passed by voters in 2000 after the state had fallen increasingly behind other states in funding public education. It required, at a minimum, that the state gradually catch up to its own 1988 spending level and then hold steady. Yet despite this clear mandate for minimal annual increases in education funding, the state violated Amendment 23 starting in 2010 by repeatedly cutting education funding using a mechanism called the "negative factor." Instead of honoring the voters' intent for increased investment in education, the state has cut education funding by over a billion dollars per year.
"Keep the promise of Amendment 23," said Tim Macdonald, of the Arnold & Porter law firm, co-lead attorney on the case. "The voters did not trust the State to maintain funding for K-12 education, so they passed a constitutional amendment to force the State to do so. Although the State complied for a decade, when times got tough, they sacrificed our kids by slashing funding by $1 billion, each year," he explained.
Communities have seen the painful results of these cuts. In places like Kit Carson school district, struggling families have had to dig deep into their pockets in order to fundraise for basic educational necessities as well as "luxuries" like instruments and uniforms so that their children can have a music program. New and updated books are non-existent and administrations have been unable to replace retiring teachers in core classes. For example, schools that were able to provide reading classes to students before the budget cuts are no longer able to provide them to younger students.
All across the state, painful budget cuts have resulted in the loss of educational opportunities for students that are vital to preparing them for citizenship, post secondary education and the workforce.
"The General Assembly's misinterpretation of Amendment 23 has resulted in drastic cuts in educational services and programs in direct contradiction of the voters' intent when they passed Amendment 23," explained co-lead attorney Kathleen Gebhardt, Executive Director of Children's Voices. "This isn't theoretical. The cuts have caused great and lasting harm to schools and children around the state. Jobs have been lost, programs have been cut, and students have lost out on individual attention and critical interventions."
When Colorado's voters approved Amendment 23, they expected the legislature to act in good faith, sharing the voters' commitment to healthy public schools. Because the legislature has failed the voters and failed to uphold the Constitution, it is necessary to turn to the courts. As citizens, we all have a right to expect our government to act responsibly and honorably and to uphold clear constitutional rights.
"As voters, we thought we were approving a positive factor for education, but instead the state gave us a negative factor. Our students are losing opportunities to help prepare them for the workforce. This reality is all too real for students around the state and we cannot wait any longer to keep the promise Colorado made to its kids fourteen years ago," said Lindi Dwyer, lead Plaintiff in the suit, "The state can't just ignore the constitution."
"Colorado is near the bottom of the nation in funding education. The Legislature's continuing failure is depriving the state's children of critical resources needed to succeed in school," said leading education rights attorney David Sciarra of Education Law Center. "Given the Legislature's refusal to act, it's time for the court to step in and safeguard the education rights of Colorado's 1 million public school children."
Plaintiffs include parent/taxpayers, the statewide Colorado Rural Schools Caucus, the Colorado PTA, and several school districts. Defendants include the State, the Commissioner of Education, and the Governor.
Monday, July 7, 2014
The New York lawsuit pitting students rights against teachers, based on the same theory as Vergara in California, has been filed. The plaintiffs claim that N.Y.'s current tenure laws "violate the State Constitution's guarantee of a 'sound basic education' by making it difficult to fire bad teachers and by protecting the most veteran teachers in the event of layoffs, regardless of their quality." Both this case and the recent decision in California are monumental and the road ahead is far from certain. As Michael Rebell remarks, "[i]t is basically unprecedented for a court to get into the weeds of a controversial education policy matter like this." The New York Times article on the case is here.
Tuesday, June 24, 2014
Two weeks ago, a California trial court sent shock waves through the education system by holding that California statutes that limit the removal of ineffective teachers and disproportionately expose poor and minority students to these teachers violate those students' fundamental right to education. This holding raises major issues regarding the identification and measurement of ineffective teachers. We might know that there are ineffective teachers, but reliably identifying them is another matter altogether.
The current position of the federal government and many other education reformers is that ineffective teachers can be identified through value-added modeling (VAM) that statistical measures the impact that particular teachers have on student growth from year to year. Two of the leading proponents of this approach are Professors Raj Chetty and Tom Kane of Harvard. The judge's opinion in Vergara relies heavily on Chetty and Kane for its factual predicates, without directly addressing their underlying assumptions in regard to (VAM) and the identification of ineffective teachers. In pertinent part, the judge writes:
I am one of the most firmly committed individuals to the notion that students' constitutional rights to education are sacrosanct and among the very first obligations of legislatures. I would also tend to agree that disproportionately exposing poor and minority teachers to ineffective teachers and cutting off remedies to this problem violate students' rights. But over time, I become increasingly less certain of exactly how we apply those two legal principles to real world facts. The judge in Vergara identifies the problem, but seems to assume its factual cause and remedy.
Monday, June 23, 2014
Newsworks published this essay last week by David Sciarra:
In March, Philadelphia's state-operated school district filed an extraordinary legal complaint with the Pennsylvania Supreme Court. The lawsuit asks the Court to approve changes in school staffing levels and the way teachers are transferred and laid off, effectively nullifying portions of a collective bargaining agreement between the Philadelphia School District and the teachers union.
Much attention has focused on the district's request for changes in teacher staffing and work rules. But unnoticed is the district's stark admission of the deplorable conditions that Philadelphia's school children must endure after 17 years of direct state control over their education.
In the court filing, the district says it wants to ease lay-off and transfer rules caused by an "unprecedented gap" between available funding and what's needed just to maintain services at "prior year" levels. The district then describes the services it hopes to maintain, levels so palpably inadequate as to fall far below even minimum education standards.
The complaint details the sub-basic education programs and support services now in district-operated schools. The district describes teacher and support staff as "bare bones," at levels "20 percent smaller than the year before and 33 percent than just three years ago." The district concedes it has made "very steep" layoffs, a one-third reduction in employees in just three years, leaving schools with "barely adequate" staffing.
The district goes on to catalogue a parade of resource deficits plaguing the system: over 40 schools with no guidance counselor of its own; three-fourths of schools with no librarian assistant; and "significant cuts" to instructional materials and supplies, enrichment opportunities for students, extracurricular activities, administrative support and school cleaning services. And, of course, as parents of Philadelphia children know all too well: closing 24 neighborhood public schools.
The complaint also acknowledges the "short supply" of school nurses, a fact familiar to Philadelphians in light of the deaths of two young students in schools lacking a full-time nurse in recent months.
Even more remarkable, the district pinpoints the state's $300 million aid cut in 2011-12 as being at the "root" of these serious deficiencies. And the district presents no evidence that the relief it asks for — making teacher layoffs and transfers easier — will generate any real budgetary savings. The district doesn't offer the Court a plan for bringing teacher and support staff back to reasonable levels, reducing class size, providing interventions to struggling students, and keeping neighborhood schools open, safe and clean.
The district's filing is the legal equivalent of asking the Supreme Court for permission to rearrange deck chairs on a fast-sinking ship.
What the district's complaint avoids is stating the obvious: the abject failure to provide city students with the basic resources necessary to achieve Pennsylvania's own academic standards. And the reason why is also obvious: The school district — and the entire state — is engaged in an ongoing and severe violation the right of Philadelphia students to a "thorough and efficient" education under the Pennsylvania Constitution.
Aside from the school district, the state and the teachers union, Philadelphia school children are not represented before the Court. At a minimum, the Court should appoint special counsel to represent their fundamental interest at stake in the case: the opportunity for an education to prepare them for productive employment and engaged citizenship.
It is also imperative that the Court, in considering the lawsuit, direct the District and State Education Department produce a substantive, concrete plan of action to promptly address the severe deprivation of basic resources endemic in Philadelphia's State-operated schools.
The Pennsylvania Supreme Court is the last-resort guarantor of the right of Philadelphia children to a constitutional education. The evidence in the district's complaint is overwhelming: Education in Philadelphia schools is neither thorough nor efficient. The state, through the school district and the Department of Education in Harrisburg, has utterly failed these children. It's now up to the Court to act on their behalf.
David also addressed similar issues in the California school teachers' lawsuit here.
Wednesday, June 18, 2014
A western Pennsylvania newspaper did some number crunching on school funding, disability, and poverty levels in the area. The paper found that "[o]f the 117 school districts in southwestern Pennsylvania, 40 educated a higher-than-average population of both special education and low-income students during the 2012-13 school year." And "that districts that serve low-income families are more likely to have higher percentages of special-education students. All but 12 of the 52 districts that serve communities with more than 41 percent of students identified as low-income also have a higher than average percent of special-education students. Comparatively, of the 65 districts serving fewer low-income families than average, only 21 have more than 15.3 percent of students identified as special education."
The paper turned to experts to help explain the phenomenon. The response "districts serving poor families deal with several issues that can affect whether a student is identified as special education, . . . including inadequate prenatal care, poor nutrition, and a fetal drug and alcohol problems." Lump on top of that the fact that these poor communities tend to have low tax bases, which means their capacity to fund educational in general is limited. In short, these poor communities experience a perfect storm: student poverty, high levels of disability, and underfunded schools regardless of demographics.
The proposed solution was to make a district's socioeconomic status a factor in special education funding, rather than relying on flat amount. At first glance, that sounds like an appropriate response, although countermeasures are likely also necessary so as to ward of perverse incentives in the identification of disability, which may already exist to some extent and explain so overidentification. Regardless, raising these issues in the context of western Pennyslvania is particularly important because, other than Pittsburgh, the area is is largely rural and white, with significant percentages of poverty and undereducation. These demographics take race out of the picture. All too often, issues of poverty are equated with or clouded by issues of race, impeding a fair and objective look at and response to the problem. That does not, however, mean a solution will be forthcoming. My suspicion is that, as poor and rural districts, these Pennsylvania communities still have limited political sway.
As a side note, those interested in poverty and disability should read James Ryan's recent article discussing the relevance of poverty in the identification of individual students' disabilities.
Wednesday, June 11, 2014
Inhibiting Intrastate Inequalities: A Congressional Approach to Ensuring Equal Opportunity to Finance Public Education
Michigan Law Review has published an interesting student note, Inhibiting Intrastate Inequalities: A Congressional Approach to Ensuring Equal Opportunity to Finance Public Education, by Joshua Arocho. It is primarily a policy argument, premised on Congress using its spending legislation to encourage states to adopt a "Guaranteed Tax Base" for all districts. The abstract states:
The United States has exhibited a strong commitment to public education throughout its history. The local control of education long associated with the United States' federal system, however, has led to extreme inequalities in education finance within states. This reality, held constitutionally permissible by the Supreme Court in San Antonio Independent School District v. Rodriguez, is a product of heavy reliance on local property taxation as a means to fund schools. Although levying property taxes is a permissible state action to promote local control of education, its unaltered use is archaic and ultimately detrimental due to the United States' growing income gap and corresponding wealth segregation in the housing markets. Because federal and state court litigation has produced an intractable and inequitable split in education policy that remains unsolved by current federal- and state-led initiatives, this Note argues that a conditional congressional grant of funds would serve as a new, more politically feasible solution to this problem. By making federal funding under the next reauthorization of the No Child Left Behind Act contingent on states' adoption of new school finance systems, particularly the Guaranteed Tax Base, Congress can encourage states to give all communities an equal opportunity to finance a high-quality education for their students, regardless of the value of their taxable property.
Download the full article here.