districts that faced large revenue cuts disproportionately reduced spending on non-core operations. However, they still reduced core operational spending to some extent. A 10 percent school spending cut reduced test scores by about 7.8 percent of a standard deviation. Moreover, a 10 percent spending reduction during all four high-school years was associated with 2.6 percentage points lower graduation rates. While our estimates are smaller than some in the literature, spending cuts do matter.
These new findings are a follow-up to an equally important earlier study. In 2014, C. Kirabo Jackson, Rucker Johnson, and Claudia Persico released a comprehensive analysis of the connection between school funding and student outcomes. They "us[ed] a newly compiled database of school finance reforms and a recently available long panel of annual school district data on per-pupil spending that spans 1967–2010." They then used "an event-study analysis of the effects of different types of school finance reforms on per-pupil spending in low- and high-income school districts." They found that school finance reforms played a substantial role in equalizing school funding, or rather shrinking existing inequality.
The big question, however, was whether increases and equalization in school funding had a positive effect on students. Using the same data set, they found
that a 20 percent increase in per-pupil spending each year for all 12 years of public school for children from poor families leads to about 0.9 more completed years of education, 25 percent higher earnings, and a 20 percentage-point reduction in the annual incidence of adult poverty; we find no effects for children from non-poor families. The magnitudes of these effects are sufficiently large to eliminate between two-thirds and all of the gaps in these adult outcomes between those raised in poor families and those raised in non-poor families.
This was the most precise measure of the effect of school funding on student outcomes I had ever seen. In Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education, I used Jackson's work, along with two other analogous studies, to gauge the seriousness of the massive budget cuts that most states enacted following the Recession--much of which still remains in place today, a decade later. Basic state constitutional law demands equal and adequate educational opportunities (in most states). If Jackson and other's initial calculations were correct, there was a strong possibility that state legislature's were violating their state constitutions by imposing new educational harms. The other problem has been that state supreme courts became less aggressive in enforcing education rights during the recession. Thus, violations were going up at the same time that remedies were going down, or disappearing all together.
Jackson’s new study of the Recession-era cuts confirms that my suspicions were correct, and all but a few courts did absolutely nothing about it. The problem with the typical state supreme court school funding decision--even the positive ones--is that it only addresses education violations after the fact. And the decisions almost never articulate standards to avert the next disaster. They assume a world that just does not exist--one in which they explain the constitution to the legislature and it will act accordingly moving forward, even in the face of great challenges. As a practical matter, this allows a vicious cycle of education violations to inevitably occur, and the students who suffer them are left to carry the full burden.
Helen Ladd has followed her poignant charter school segregation study with a new one on the financial impacts of charters on the public school system. Two years ago, she, Charles Clotfelter, and John Holbein released Growing Segmentation of the Charter School Sector in North Carolina. They found that the state's charter schools were becoming increasingly white, while its charters were becoming increasing populated by students of color. It was probably the most precise and impactful study on the topic of charter school segregation to date.
I separately theorized that this particular demographic trend was occurring in North Carolina as a response to relatively high levels of integration in the public schools. In other states, the typical charge is that charters are predominantly minority and more segregated than the traditional public schools. While far from perfect, North Carolina's traditional public schools have tended to be some of the most integrated in the nation. This is partly attributable to the fact that there are 100 counties in the state and only 102 or 103 school districts. So those who object to integration cannot simply flee to a suburban district--at least not easily.
Charters schools potentially change that in North Carolina. The so-to-speak dissenters can simply enroll in a local charter now. This is not to say that all North Carolina charters play this role, but Ladd's work suggests that many do.
Her new study suggests that not only are these charters segregating education, they are draining funds from the regular public schools. Her abstract states:
A significant criticism of the charter school movement is that funding for charter schools diverts money away from traditional public schools. As shown in prior work by Bifulco and Reback (2014) for two urban districts in New York, the magnitude of such adverse fiscal externalities depends in part on the nature of state and local funding policies. In this paper, we build on their approach to examine the fiscal effects of charter schools on both urban and non-urban school districts in North Carolina. We base our analysis on detailed balance sheet information for a sample of school districts that experienced significant charter entry since the statewide cap on charters was raised in 2011. This detailed budgetary information permits us to estimate a range of fiscal impacts using a variety of different assumptions. We find a large and negative fiscal impact from $500-$700 per pupil in our one urban school district and somewhat smaller, but still significant, fiscal externalities on the non-urban districts in our sample.
School funding litigation in Connecticut caught the nation's attention in late 2016 when a trial judge there issued and lengthy and scathing appraisal of the state's school funding practices. The court found that many of the state's education policies were simply irrational. For instance, the court wrote: "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." The judge gave the state 180 days to come up with a remedy.
Interestingly, however, the trial court applied a relatively low threshold of educational adequacy. The case has now made it to the state supreme court, which affirmed that aspect of the case. In short, plaintiffs won on certain counts, but the courts, in applying a low adequacy standard, have ignored other crucial educational failures. Wendy Lecker, Education Law Center, offered this critique of the recent decision in the Stamford Advocate.
Heartless is the best way to describe the Connecticut Supreme Court’s 4-3 decision in the state’s long-running school funding case, CCJEF v. Rell.
The court’s majority acknowledged that at the 2016 trial, the plaintiffs proved that Connecticut’s poorest districts suffered severe deprivations in educational resources, especially those resources designed to help our neediest children. The court conceded that these districts lack reading interventionists, bilingual services, guidance counselors, social workers, psychologists, preschool and more.
The court even admitted that “the lack of such support services makes it extremely difficult for many students in the state’s neediest school districts to take advantage of the state’s educational offerings.”
Yet Connecticut’s highest court ruled that these shocking deprivations do not amount to a constitutional violation. Rather, it ruled that the only things the state must provide under our constitution are: the bare minimum of teachers, facilities, curricula and instrumentalities of learning — such as books, computers and desks.
Our Supreme Court admitted that these four resources are inadequate to enable many of Connecticut’s children, our neediest, to access educational opportunities. Thus, in deciding that only these meager resources need be provided, the court essentially ruled that the state bears no constitutional responsibility to these children — only to those who do not need such support.
This decision represents a monumental step backward. Courts across the United States routinely recognize that since out-of-school factors can hinder some children’s ability to access educational opportunities, it is the state’s responsibility to provide support that mitigates those factors to guarantee the same educational opportunities to these children that others enjoy.
Almost 30 years, ago, the New Jersey Supreme Court understood that a state’s duty to guarantee a constitutionally adequate education addresses not only “reading, writing, and arithmetic” but also “the environment that shapes these students' lives and determines their educational needs.” Similarly, courts in Massachusetts, Wyoming, Kansas, Washington, New York, South Carolina, Tennessee and elsewhere mandate that, as part of the state’s obligation to ensure adequate educational opportunities to all children, it must provide additional services to at-risk children, such as those living in poverty, English Language Learners and students with disabilities.
Social workers, guidance counselors, psychologists, tutoring, bilingual education, special education programs and other supports have long been common features of every school system. To pretend that these supports are not essential components of education is to deny reality.
The court’s decision was not unanimous. Justice Richard Palmer wrote a strongly worded dissent, which is notable not only for its content. It is also striking because it was Justice Palmer’s opinion in CCJEF the last time it was before the Supreme Court, in 2010, that established the standard for determining what kind of education Connecticut owes its children.
In issuing its decision last week, the majority claimed it was merely applying Justice Palmer’s 2010 standard. However, Justice Palmer pointedly disagreed.
“Residents of our poorest communities, even those hungry to learn, may have to overcome a host of obstacles before they are able to attend to fractions and Fitzgerald,” Justice Palmer wrote. He concluded that the state cannot shirk its responsibility to attend to those obstacles.
Justice Palmer maintained that his 2010 decision mandated that the state not only provide teachers, facilities, curricula and instrumentalities, but that it also take into consideration the particular needs of a local school district, including the needs of children living in poverty, children learning English and children with disabilities.
Justice Palmer noted that the majority acknowledged that had the state provided only college level textbooks to elementary school students — well above a level they could comprehend — that would have been a violation of these children’s constitutional rights. He queried why the constitution is “not also offended if, for example, a school fails to provide instruction or instructional materials that are comprehensible to a substantial subpopulation of students whose primary language is not English?”
Connecticut has almost 200,000 students who are economically disadvantaged, more than 36,000 English Language Learners and over 77,000 students with disabilities. Many need additional support to access their opportunity to an education.
As Justice Palmer declared that “(i)t is not enough to seek success in some places, for some children ... the educational system must be reasonably designed to achieve results in every district and neighborhood. Our state constitution simply will not allow us to leave our neediest children behind.”
The court’s majority was willing to leave hundreds of thousands of Connecticut’s children behind. Will we allow Connecticut’s political leaders to do the same?
These bleak numbers beg the question: Don’t students have a constitutional right to something better? Many Americans assume that federal law protects the right to education. Why wouldn’t it? All 50 state constitutions provide for education. The same is true in 170 other countries. Yet, the word “education” does not appear in the United States Constitution, and federal courts have rejected the idea that education is important enough that it should be protected anyway.
After two decades of failed lawsuits in the 1970s and ‘80s, advocates all but gave up on the federal courts. It seemed the only solution was to amend the Constitution itself. But that, of course, is no small undertaking. So in recent decades, the debate over the right to education has mostly been academic.
The summer of 2016 marked a surprising turning point. Two independent groups – Public Counsel and Students Matter – filed lawsuits in Michigan and Connecticut. They argue that federal law requires those states to provide better educational opportunities for students. In May 2017, the Southern Poverty Law Center filed a similar suit in Mississippi.
At first glance, the cases looked like long shots. However, my research shows that these lawsuits, particularly in Mississippi, may be onto something remarkable. I found that the events leading up to the 14th Amendment – which explicitly created rights of citizenship, equal protection and due process – reveal an intent to make education a guarantee of citizenship. Without extending education to former slaves and poor whites, the nation could not become a true democracy.
Why a federal right to education matters
Even today, a federal constitutional right to education remains necessary to ensure all children get a fair shot in life. While students have a state constitutional right to education and it has made a real difference in many states, too many state courts have been ineffective in protecting those rights. Some courts claim they lack the authority to demand reform. Others simply struggle to cajole legislative compliance with court orders.
Without a federal check, education policy tends to reflect politics more than an effort to deliver quality education. In many instances, states have done more to cut taxes than to support needy students.
And a federal right is necessary to prevent random variances between states. For instance, New York spends US$18,100 per pupil, while Idaho spends $5,800. New York is wealthier than Idaho, and its costs are of course higher, but New York still spends a larger percentage on education than Idaho. Tennessee and Kentucky make the point even clearer. Kentucky is a little poorer than Tennessee, but spends far more on education—$8500 per pupil compared to Tennessee’s $7300. In other words, geography and wealth are important factors in school funding, but so is the effort a state is willing to make to support education.
And many states are exerting less and less effort. Recent data show that 31 states spend less on education now than before the recession – as much as 23 percent less.
States often makes things worse by dividing their funds unequally among school districts. In Pennsylvania, the poorest districts have 33 percent less per pupil than wealthy districts. Half of the states follow a similar, although less extreme, pattern.
Studies indicate these inequities deprive students of the basic resources they need, particularly quality teachers. Reviewing decades of data, a 2014 study found that a 20 percent increase in school funding, when maintained, results in low-income students completing nearly a year of additional education. This additional education wipes out the graduation gap between low- and middle-income students. A Kansas legislative study showed that “a 1 percent increase in student performance was associated with a .83 percent increase in spending.”
These findings are just detailed examples of the scholarly consensus: Money matters for educational outcomes.
The new lawsuits
While normally the refuge for civil rights claims, federal courts have refused to address these educational inequalities. In 1973, the Supreme Court explicitly rejected education as a fundamental right. Later cases asked the court to recognize some narrower right in education, but the court again refused.
After a long hiatus, new lawsuits are now offering new theories in federal court. In Michigan, plaintiffs argue that if schools do not ensure students’ literacy, students will be consigned to a permanent underclass. In Connecticut, plaintiffs emphasize that a right to a “minimally adequate education” is strongly suggested in the Supreme Court’s past decisions. In Mississippi, plaintiffs argue that Congress required Mississippi to guarantee education as a condition of its readmission to the Union after the Civil War.
While none of the lawsuits explicitly state it, all three hinge on the notion that education is a basic right of citizenship in a democratic society. Convincing a court, however, requires more than general appeals to the value of education in a democratic society. It requires hard evidence. Key parts of that evidence can be found in the history of the 14th Amendment itself.
The original intent to ensure education
Immediately after the Civil War, Congress needed to transform the slave-holding South into a working democracy and ensure that both freedmen and poor whites could fully participate in it. High illiteracy rates posed a serious barrier. This led Congress to demand that all states guarantee a right to education.
In 1868, two of our nation’s most significant events were occurring: the readmission of southern states to the Union and the ratification of the 14th Amendment. While numerous scholars have examined this history, few, if any, have closely examined the role of public education. The most startling thing is how much persuasive evidence is in plain view. Scholars just haven’t asked the right questions: Did Congress demand that southern states provide public education, and, if so, did that have any effect on the rights guaranteed by the 14th Amendment? The answers are yes.
As I describe in the Constitutional Compromise to Guarantee Education, Congress placed two major conditions on southern states’ readmission to the Union: Southern states had to adopt the 14th Amendment and rewrite their state constitutions to conform to a republican form of government. In rewriting their constitutions, Congress expected states to guarantee education. Anything short was unacceptable.
Southern states got the message. By 1868, nine of 10 southern states seeking admission had guaranteed education in their constitutions. Those that were slow or reluctant were the last to be readmitted. The last three states – Virginia, Mississippi and Texas – saw Congress explicitly condition their readmission on providing education.
The intersection of southern readmissions, rewriting state constitutions and the ratification of the 14th Amendment helps to define the meaning of the 14th Amendment itself. By the time the 14th Amendment was ratified in 1868, state constitutional law and congressional demands had cemented education as a central pillar of citizenship. In other words, for those who passed the 14th Amendment, the explicit right of citizenship in the 14th Amendment included an implicit right to education.
The rest is history. Our country went from one in which fewer than half of states guaranteed education prior to the war to one in which all 50 state constitutions guarantee education today.
The new cases before the federal courts offer an opportunity to finish the work first started during Reconstruction – to ensure that all citizens receive an education that equips them to participate in democracy. The nation has made important progress toward that goal, but I would argue so much more work remains. The time is now for federal courts to finally confirm that the United States Constitution does, in fact, guarantee students the right to quality education.
Every twenty years, a commission meets in Florida to consider changes to its constitution. The last time it met the commission proposed important improvements to the state constitution's education clause, specifically adding that the public school system should be "high quality." This language situated Florida's education clause as one of the most forceful in the country (even thought its courts have not seen fit to enforce the clause). This education clause, however, caused some problems for school choice advocates. In Bush v. Holmes in 2006, the state supreme court struck down the state's school voucher program, finding that the education clause prohibited the state from using public education dollars to fund private vouchers.
Now, the commission is proposing constitutional changes to eliminate that limitation. The old constitutional mandates are left in place, but the commission would add one important sentence: "Nothing herein may be construed to limit the legislature from making provision for other educational services that benefit the children and families of this state that are in addition to the system of free public schools."
This precise language is interesting and somewhat of an odd fit. Appreciating the oddness requires a little background on why Florida and a few other courts have struck down voucher programs. The reason is not that they or the constitutional language are anti-voucher. The reason is that the constitutions are so pro public education. As of today, all fifty state constitutions protect education. The specifics of each differ, but the general thrust is the same in all of them: the state has an absolute duty to provide an equal and/or adequate system of public education. In this respect, education holds a unique place in state constitutions. It is the singular thing that states must do. Unlike roads, health care, parks, and jobs programs, they have no choice in the matter with education. And as such, they cannot put other policy agendas before public education, nor can the rob Peter (with Peter being education) to pay Paul. There are, of course, caveats, but this general idea is rule through which all education conflicts must run. Thus, the Florida Supreme Court held that a voucher program that siphoned public education dollars out of the public education fund was unconstitutional.
At first blush, the Florida commission's new proposal would seemingly allow Florida to do what its Supreme Court previously indicated it could not. If so, it is a dangerous provision indeed. The public education system might loose its first order status. The state could enact any additional education systems it saw fit, so long as they were in addition to rather than in place of public education. Recent events in Florida would suggest that this is exactly what the power brokers in Florida want. But is this what the people of Florida want? I doubt it. They have a public education clause in their constitution for a reason.
A more technical read of this provision, however, might render it pointless unless the state of education in Florida changes substantially in the coming years. This technical reading appreciates that there is a relationship between the "addition" and "the system of free public schools." Logically speaking, an addition can only occur when the system of public education schools is in place. The question then becomes whether the appropriate system is in place. Not just any old system will do.
The constitution still provides that funding the system is "a paramount duty of the state." And the system has to be "uniform, efficient, safe, secure, and high quality."
It stands to reason that if the state is not providing sufficient funds for an efficient and high quality education, this new proposed constitutional language would not allow the state to fund voucher programs. It is not until the state meets its paramount public education duty that it can do something in addition to it.
Current data strongly suggests Florida is not anywhere close to meeting its obligation. Its funding levels are 41st in the nation and its funding mechanisms are regressive--meaning it gives more money to the students and districts who need it the least. Districts serving larger shares of low-income students actually have less money per pupil that their sister districts. And as I detail in Preferencing Choice (forthcoming Cornell Law Review), Florida has been running choice programs at the expense of the public education system for several years now. Its charter and neo-voucher tax credit system have rapidly expanded each of the last several years while the commitment to public education dwindles. At the statewide level, one might dismiss the trend as minor, but these programs do not really operate on a statewide level. They are heavily concentrated in a handful of districts like Broward County. These districts were already struggling and now the effects of choice are heavy concentrated there. The practical result is often to create new constitutional deprivations in educational opportunity, not cure old ones.
If Florida is sincerely interested in updating its constitution, it should save school choice for another day. Its prior commission specifically refrained from addressing the question of whether courts can enforce the education clause against the state legislature. It was, in short, agnostic. This agnosticism, however, has been treated as a negative and courts have refused to require the state to live up to its constitutional obligations. What is the point of a constitution if the state can breach it at will? Recognizing the problem, most state courts have enforced their education clauses. The best thing this commission could do is make clear that Florida's constitution gets with the times. It is twenty years overdue.
In 1999, the S.C. Supreme Court issued a monumental decision in Abbeville v. South Carolina. It held that “the South Carolina Constitution’s education clause requires the General Assembly to provide the opportunity for each child to receive a minimally adequate education.” The trial that followed made national headlines. After reviewing the trial record in 2014, the Supreme Court found that the state had “failed in (its) constitutional duty to ensure that students … receive the requisite educational opportunity” and ordered it to remedy its failures.
By a vote of 3-2 this month, the court terminated this landmark case without even bothering to offer a reasoned explanation.
The majority’s driving motivation appears to be the belief that the court should never have been involved in the first place because it lacks authority to require the state to improve our public schools. This very same argument was rejected by the court in 2014. The only difference now: The justices on the court have changed. The majority also pointed to numerous “good faith efforts” by the state to comply with the 2014 order.
These explanations are inconsistent and flat wrong. If the court lacks authority to rule on the education rights of S.C. school children, the state’s efforts are irrelevant. Either the court can adjudicate the case or it cannot. The court cannot have it both ways, justifying its refusal to further entertain the case with the notion that it does not matter anyway because the state has made what the majority characterizes as “good faith” efforts.
Inconsistencies aside, the belief that an earlier decision in the case was wrong is not enough to justify dismissing the case later. The 2014 Abbeville decision is the settled constitutional law of this state and specifically controls this case.
One need look no further than the roughly 70,000 criminal convictions that are appealed across the nation each year to appreciate how troubling this dismissal is. Appellate judges often disagree with trial court outcomes or change their mind about a case after reviewing it several times over the course of years. But these judges do not simply reverse convictions because they did not like the decision of some earlier judge.
In our court system, the scales are heavily weighted toward respecting settled law and outcomes in prior proceedings. Any divergence from this presumption requires compelling new evidence and fully explained justifications. In ending the Abbeville litigation, the court offers no such evidence or justification.
Our Supreme Court now stands as an outlier. The brief dismissal reads as though courts do not generally get involved in cases regarding inadequate resources and outcomes for public school children. Yet a majority of state courts have affirmed their role in ensuring that states fulfill their education duties under the constitution. Our own court said the same thing twice in the past.
Just a few weeks ago, the Pennsylvania Supreme Court, in stirring language, explained that cases implicating the education rights of children are at the heart of an independent judiciary: “It is fair neither to the people of the Commonwealth nor to the General Assembly itself to expect that body to police its own fulfillment of its constitutional mandate (in education). This is especially so in light of the many competing and not infrequently incompatible demands our legislators face to satisfy non-constitutional needs, appease dissatisfied constituents, and balance a limited budget in a way that will placate a majority of members in both chambers despite innumerable differences regarding policy and priority.”
The only evidence before our Supreme Court since its 2014 order for the state to fix our broken education system was the state’s own progress reports. Those reports have yet to be subjected to rigorous scrutiny. Simply filing a report — any report — appears enough for this Court.
Were these reports tested, the state would have to account for evidence that school funding remains far below prerecession levels, even though tax revenues have rebounded and produced substantial surpluses in recent years. It would also have to explain how little it has done to expand access to high-quality teachers and preschool education.
But this evidence will never see the light of day. Our court has left students’ right to a quality education solely in the hands of the Legislature. As the Pennsylvania Supreme Court makes clear, legislative self-policing is a far more dangerous proposition to our children and South Carolina’s future than the possibility of judicial overreach.
This past Friday was on of the saddest days in a long time for education rights in the state of South Carolina. In a short five-paragraph order, the state supreme court dismissed Abbeville v. State, a school adequacy and funding case first filed in the late 1990s. The case includes two prior victories before the Supreme Court--one in 1999 allowing the case to proceed to trial and another in 2014 order the state to remedy the inadequacies demonstrated in the case. Those two highlights, however, belie a curious history of judicial enforcement, with the court proceeding at a snail's pace in most instances, but all the while proceeding nonetheless. As I describe in Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education--an analysis of national trends in school litigation--
The [South Carolina Supreme Court’s] 2014 decision ordering the state to act came more than two decades after plaintiffs first filed their case. This delay, in large part, was due to the court’s refusal to decide the case. The court took more than two years to decide whether plaintiffs could proceed to trial in 1999. When the case returned to the court in 2008, the court waited nearly six years to issue an opinion on the merits of a potential remedy—so long that at one point it scheduled rehearing to update itself on the case.
At the very least, the case represents a court reluctant to enforce education rights until well after the recession had passed. If justice delayed is justice denied, the decision is surely a loss. Moreover, the long delayed final decision was ambiguous in its mandate, indicating that “the Defendants and the Plaintiff Districts must identify the problems facing students in the Plaintiff Districts, and can solve those problems through cooperatively designing a strategy to address critical concerns and cure the constitutional deficiency . . . .” The court then allowed almost another full year to pass before issuing a timetable for the parties to devise a remedy, which it inexplicably withdrew just weeks later. In September 2016, notwithstanding its original demand that the state “design a strategy to address critical concerns and cure the constitutional deficiency evident in this case,” the court in September 2016 found the state had complied with its order by simply issued an order indicating that the legislature’s efforts to studying educational deficiencies in the state and approving recent minor increases in resources were sufficient to comply with the court’s expectations.
Friday's opinion may ironically be the most definitive in the long running case. In a 3-2 opinion, the Court wrote that "[f]or the following reasons, we vacate the Court's continuing jurisdiction over this matter." The very next sentence explained: "we are convinced Abbeville II was wrongly decided as violative of separation of powers." This, particularly as the first explanation, is troubling as it suggests the case is dictated by a change in court composition rather than reasoned analysis under the controlling law of the cast. The following paragraph offers additional factual justifications, finding that the state had acted in good faith to comply with the Court's prior order.
The Tennessee Court of Appeals has taken up a fascinating issue regarding students' access to teachers. The problem could only arise in the brave new world of computers. In short, a student at a Tennessee high school had fallen behind in algebra and end-of-grade assessments were looming. The school pulled the student out of the class and placed the student in a computer based credit recovery program. Apparently, this occurred with several other students. The student claims that the school did this to help increase its standardized test scores.
The disputed issue in the case seems to be a narrower one: do students have the right to access a teacher? The plaintiff says yes. The school's attorney says no.
Melissa Roberge, a Metro lawyer, argued Tuesday that a student's right to education does not extend to the education's components, such as how classes are delivered or the specific classes themselves.
"Miss Jones does not have a property interest in the most appropriate education as determined by her," she argued. "Stated differently, there's no property interest in remaining in a specific class or being entitled to any particular test."
Roberge noted that Jones was not excluded from Metro Schools nor removed from all of her classes.
@RachelAnne Levy asked for my thoughts on Twitter. First, the case is fascinating on any number of practical and policy levels. Manipulating who shows up for tests is nothing new, but doing it this way and arguing that it is completely above the board, normal, and legitimate is different. Second, using recovery programs as a supplement to regular instruction or as an option for students who have no others is reasonable. Using it as a first option is really bad policy (unless the program is demonstrated to be of exceptional quality and help to the student) and creates obvious perverse incentives.
As to the law, the case is not nearly as interesting because I think the answer is easy. Unless they have some very specific evidence of which I am unaware, schools cannot just do this simply because no statute exist to specifically prohibit it.
While the district is correct that students typically do not have a property right in any particular class, this line of defense misses much larger and more important legal precedent and rights.
The Supreme Court in Tennessee Small School Systems v. McWherter, 851 SW2d 139 (1993), held that students have a constitutional right to "substantially equal educational opportunities." The underlying facts in the case involved disparities in teacher salaries across the state. Consistent with the overwhelming social science consensus, the court indicated that "teachers, obviously, are the most important component of any education plan or system." Because salary disparities resulted in students having unequal access to teachers, the Court ordered the state on more than one occasion to remedy is system of funding teacher salaries across the state.
So while state statutes may not create any specific property interest in access to a teacher, the state constitution creates a right to equal educational opportunities, which teachers are the most important part of. To be clear, however, underlying the discussion of teachers in McWherter and, now this new case, is educational opportunity itself. The basic right is to educational opportunity. Violations of that right occur when students are deprived of the resources and learning necessary to achieve that opportunity. This leads to the factual question of whether the offerings in one class or one school are substantially equal to others across the state.
Just because one district has higher credentialed teachers than another does not automatically mean the students' rights have been violated. The same is true of minor variations in class size. The same line of reasoning could theoretically extend to computer based learning versus human based teaching. If both were "substantial equal," a student would not necessarily have a claim.
But that is a preposterous theory when one considers the real world. I am not aware of any research (although I allow I may have missed it) that suggests that computers are equal to or can replace human instruction. If any research is on point, it would seem to be the research and practical push back against several technologies that undermine learning--particularly the most valuable types of learning that occur through personal interaction, motivation, and feedback. I don't doubt that artificial intelligence may drastically close this gap at some point, but for now it is hard to argue that computer based learning standing alone is equivalent to teacher based instruction. This is even more so for the struggling student who needs to be engaged.
Where does this leave us? The question of computer based learning is new territory and should not be dismissed out of hand. At some point, it may play an incredibly large and legitimate role. Thus, the law should not cut it off. But that is all speculation and remaining open to future possibilities. But in the here and now, we know how important teachers are and we know that students have a right to substantially equal educational opportunities in Tennessee. Thus, schools should carry a very heavy evidentiary burden with any sort of experimentation that would deprive students of substantially equal access to the key competent of education.
A New York appellate court in Maisto v. State has reversed the lower court decision in the "Small Cities" school funding litigation. Litigants had put on extensive evidence of various deprivations in education resources and their connection to student outcomes. In 2016, however, the trial court dismissed the case with rather summary logic. The trial court reasoned that because current funding levels exceeded those previously proposed and sanctioned by the courts in 2006, there was no constitutional violation. As the new appellate decision emphasizes, that logic is extremely misguided. The real question is whether students in the plaintiff districts are receiving a sound basic education, which requires an assessment of inputs and outputs, which the trial court did not do.
This distinction between the validity of the old remedy and the current provision of a sound basic education is key and confirms a curious issue I raise in my casebook, Education Law: Equality, Fairness, and Reform. In the 2006 Campaign for Fiscal Equity decision, New York's highest court had evaluated the differing assessments of the cost of providing an adequate education in New York. A commission had proposed one number, the governor another, and the legislature another. The court ultimately deferred to the state's proposed number, even though it was lower than others, concluding that the state's number was not unreasonable. Readers are often struck by the fact that after all the prior tough decisions in CFE, the court ends the case on a reasonableness standard. In the notes following the case, I try to lead readers to the logic of the reasonableness standard. I ask: "Do the plaintiffs have the right to return to the court if these estimates later prove to be insufficient, or is it enough that the state acted in good faith or within reason?" The logical answer has to be the later.
The reasonable approach in CFE is akin to the approach of school desegregation: the state gets the first shot at a remedy and is permitted to move forward with reasonable remedies, even if the court of experts might prefer others. But this has no bearing at all on plaintiffs ability to bring future cases. Moreover, if those so called "reasonable" remedies do not work, plaintiffs have the right to return to court and establish that fact.
In desegregation, failed prior remedies also provide a basis for less deference toward state remedies in future remedies. In fact, the state's past "good faith" compliance with desegregation is an explicit factor in court's authority to find new violations and enjoin them. The new curious question will be the extent to which New York courts should afford less deference to the state's estimates of an adequate education.
For now, it is worth reviewing what the current court held. It provided a nice overview of the relevant precedent and standards and clear directions to the trial court moving forward:
The Education Article declares that “[t]he [L]egislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated” (N.Y. Const, art XI, § 1). To that end, the Court of Appeals has held that the Education Article “ ‘requires [defendant] to offer all children the opportunity of a sound basic education. Such an education should consist of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury’. The sound basic education guaranteed by the [NY] Constitution requires [defendant] to provide students with the ‘opportunity for a meaningful high school education, one which prepares them to function productively as civic participants' and ‘compete for jobs that enable them to support themselves'.
To establish a violation of the Education Article, a plaintiff must “establish a causal link between the present funding system and any proven failure to provide a sound basic education to [the affected] school children”. This burden may be met by proof regarding the “ ‘inputs' children receive—teaching, facilities and instrumentalities of learning—and their resulting ‘outputs,’ such as test results and graduation and dropout rates”, and, where inputs and outputs are both deficient, a causal link between the two, which may be established by showing that increased funding would provide better teachers, facilities and instrumentalities of learning that improve student performance. With respect to causation, the Court of Appeals specifically rejected the argument that poor socioeconomic conditions excuse poor outputs or results.
. . . .
In response to the [Campaign for Fiscal Equity] cases, Foundation Aid was enacted to increase school aid funding on a statewide basis by approximately $5 .5 billion annually when fully implemented over a four-year period. Foundation Aid was distributed as originally planned in the 2007–2008 and 2008–2009 budget years; however, aid to education was reduced in the 2009–2010 budget in response to the “largest budget gap ever faced by the State,” which was caused by the global financial crisis. Specifically, Foundation Aid was frozen at then-existing levels and the phase-in period was extended from four years to seven years. In addition, the 2010–2011 state budget introduced a “[g]ap [e]limination [a]djustment” (hereinafter GEA), which reduced formula-based school aid by $1.4 billion in that budget year. The GEA was continued in the 2011–2012 through 2015–2016 budgets, but was not continued in the 2016–2017 or 2017–2018 budgets.
Although a claim based solely upon the allegation that Foundation Aid was reduced is insufficient to state a cause of action for violation of the Education Article, plaintiffs did more than simply put forth that conclusory assertion. Plaintiffs' causes of action—grounded in the assertion that the actual funding levels provided following the CFE cases were insufficient to provide the affected students with a sound basic education—were based on detailed, district-specific allegations of insufficient inputs, deficient outputs and causation. More to the point, plaintiffs' proof at trial, which Supreme Court acknowledged established a prima facie case that defendant failed to fulfill its constitutional obligation, was more than sufficient to require analysis under the CFE II framework on a district-by-district basis. Indeed, by noting that changes in educational funding provided by defendant must still “deliver on its obligation to ensure that schoolchildren are provided the opportunity for a sound basic education”, the court acknowledged that any reductions in funding must pass constitutional muster, which is an inquiry that can be answered only through CFE II analysis.
The next key paragraph in the decision provided:
Thus, Supreme Court erred by proceeding directly to the “remedy” stage set forth in CFE III and affording deference to the Legislature without first applying the framework established in CFE II to determine whether plaintiffs had established a constitutional violation. No deference is due the Legislature when applying the CFE II factors to determine whether there is a violation in the first instance.
On that basis, the Court of Appeals remanding the case to the trial court and was clear that the plaintiffs had already presented extensive evidence on the relevant factual issues to be addressed. Thus, the task is merely for the trial court to apply the law. The Court of Appeals closed with a final directive:
For any district where the court finds that inputs were insufficient, it must determine—on a district-by-district basis—whether plaintiffs have established causation by showing that increased funding can provide inputs that yield better student performance.
Zachary Liscow has posted an incredibly informative and complex analysis of the interplay between school finance litigation victories and legislative action. While analysis in this general area is not new, his approach is much deeper. Liscow attempts to measure not just whether school finance decisions affect per pupil expenditures, but how they affect tax policy, the differential burdens of that tax policy, and the redistribution of governmental resources. These inquiries are really aimed at identifying macro-level trends, whereby school finance litigation potentially produces a redistribution of resources or, more bluntly, an overall reduction in inequality. Do legislatures increases taxes on the wealthy while at the same time driving more state resources to the needy through schools?
In his abstract, he writes:
I find that the court orders’ distributional impacts do stick. The education spending is financed by tax increases that do not target the largest beneficiaries of the increased education spending, the poor and those with children. Thus, since the main beneficiaries of the school spending do not pay a disproportionate share of the costs, advocates for school finance reform are effective at transferring resources to poor families. The results suggest that welfare analysis of these legal rules should take into account not only efficiency but also distribution, in a departure from traditional economic analysis of legal rules.
In his more nuanced discussion later, he indicates that states do not typically redistribute existing resources in other areas toward education, they just raise taxes. Those tax increases are pretty evenly felt across all households. He conclude with the following:
This paper’s results are difficult to square with this underlying political economy assumption that that legislatures, even in the long-run, optimize the distribution of taxes and spending. This paper presents evidence of “zombie legislatures”: courts dramatically change the distribution of spending, and the legislature does nothing to offset those acts. Instead, the legislatures drift. Determining how much legislatures optimally should respond is beyond the scope of this paper, but the fact that there is no evidence of any offset at all suggests at least the possibility that a different background assumption about whether legislatures achieve the socially optimal distribution of taxes and spending may be appropriate. Of course, the paper says little about whether taxes and spending redistribute too much or too little and thus little about what that appropriate assumption should be. An important subject of future work is determining the impact of legislative drift on deviations from the optimal distribution of taxes and spending. And, more generally, the implications for policy design without a background assumption of an optimal distribution of taxes and spending are an important subject for future work.
On three prior occasions, the Pennsylvania Supreme Court has been asked to consider the possibility that school funding and other inequities in the state violate the state constitutional provision that the General Assembly "provide for the maintenance and support of a thorough and efficient system of public education.” Each time the Supreme Court has said no. The net result for students is one of the most arcane school funding systems in the nation. For a long time, the state did not even have a school funding formula, instead funding schools randomly, inequitably, and inadequately.
Yesterday, in William Penn School District v. Pennsylvania, the court entered a new era and took the position of most other state supreme courts--that it had the authority and duty to determine whether "the General Assembly imposes a classification whereunder distribution of state funds results in widespread deprivations in economically disadvantaged districts of the resources necessary to attain a constitutionally adequate education." It added: "We cannot avoid our responsibility to monitor the General Assembly’s efforts in service of its mandate and to measure those effects against the constitutional imperative, ensuring that non-constitutional considerations never prevail over that mandate."
As momentous as this step is for the children of Pennsylvania, the logic is over 200 years old. The Pennsylvania constitution sets out a specific legislative duty in education. That basic fact implicates the courts as well.
It is settled beyond peradventure that constitutional promises must be kept. Since Marbury v. Madison, 5 U.S. 137 (1803), it has been well-established that the separation of powers in our tripartite system of government typically depends upon judicial review to check acts or omissions by the other branches in derogation of constitutional requirements. That same separation sometimes demands that courts leave matters exclusively to the political branches. Nonetheless, “[t]he idea that any legislature . . . can conclusively determine for the people and for the courts that what it enacts in the form of law, or what it authorizes its agents to do, is consistent with the fundamental law, is in opposition to the theory of our institutions.” Smyth v. Ames, 169 U.S. 466, 527 (1898). Thus, we must be skeptical of calls to abstain from a given constitutional dispute. We hold that this is not a case that requires such abstention.
The decision also serves as an important counterpoint to recent trends among the courts. As I detail in Averting Educational Crises, the Great Recession may have motivated several state supreme courts to give legislatures a pass for the massive education cuts they have imposed over the past decade. There were no direct reversal of prior precedent but a seeming unwillingness to enforce it. This new decision in Pennsylvania, particularly given the negative precedent in the state, may be reason to hope that the troublesome trend of the past decade is nearing a trend. For now, it is too early to project. Regardless, as I emphasize in the article, the ebb and flow of constitutional enforcement is a dangerous game for the judiciary to play--one that will not serve education or the general institutional authority of the courts well in the long run. As I argue here, courts and constitutional enforcement in education are best served by prompting state legislatures to plan for educational crisis--because they will necessarily occur--not by giving states a pass when they do occur.
The North Carolina Court of Appeals affirmed the dismissal of plaintiffs' complaint in Silver v. Halifax County Board of Commissioners. The case involved a claim that the Board's maintenance and operation of three distinct school districts within the county violated students' right to a sound basic education under the state constitution. The claim focused on the fact that the districts were racially identifiable, unequally funded, and qualitative disparate. Moreover, these facts were attributable to local, not state level, decisions.
Plaintiffs argue that as delegates of the state, the local authorities are obligated to provide a constitutionally appropriate education. To the extent their actions deprive plaintiffs of that education, plaintiffs are entitled to relief. The Court of Appeals read precedent far more narrowly, reasoning that prior state supreme court decisions had only directed the state to comply with the constitution. Thus, if plaintiffs have a gripe with the education in Halifax, they should take it up with the state: "the correct avenue for addressing plaintiffs’ concerns in the present case would appear to be through the ongoing litigation in Leandro I and Leandro II [the longstanding school adequacy suit against the state]."
The court, however, seemingly missed two distinctions. The first is causation. While the harms that plaintiffs in Silver suffer may be the same as the harm in Leandro--inadequate education--plaintiffs allege a different cause. To say plaintiffs must nonetheless sue the state is akin to saying that a victim of a car accident cannot sue the driver of the car that hit him because a manufacturing defect may have also existed and superceded the negligence of the driver. There may very well be a superceding defect, but that possibility does not preclude the negligence suit as a prima facie matter. Rather, the case must be litigated to determine the actual causes of the harms.
Second, the court assumes that prior case law placing the constitutional duty on the state means that the duty exclusively rest there. As the dissent in Silver points out, however, those prior decisions did not raise the question of local duties. Thus, there is no reason to infer those prior cases exclude a local duty. Moreover, as I detail in an article on access to middle income peers, some constitutional duties logically flow to local districts. Certain decisions, such as student assignment, are made at the local level and would be impracticable at the state level. The problem is not with state policy, but local implementation. The state may very well be responsible for those local failures. Often it is, but that does not mean this is always the case.
School discipline makes this point even clearer. The state has a constitutional duty to deliver education to students, but it is often the local principal or district that makes the decision to take that education away. Taken to its extreme, the opinion in Silver might suggest that those students should sue the state rather than their district. The reams of lawsuits against local districts reveal they are appropriate defendants.
Education is special in the eyes of the law. State constitutions rarely require the government to spend money on anything, let alone to spend it well. Yet virtually every state constitution provides for a system of free public schools, and many courts have treated state governments as having a legally enforceable duty of care with respect to education.
But what exactly does this duty of care entail? One might expect this question to be reasonably well settled, as public-interest lawyers have been litigating education rights cases since the early 1970s. It is not. Two competing visions of the duty of care are playing out today in cases across the country. One holds that the state’s primary responsibility is to provide an ample fiscal “pie” for local school districts. Funding arrangements must ensure that all districts can afford to pay for decent facilities and programs. This vision motivates many of the claims that were filed in response to school-funding cutbacks during the Great Recession. The other vision holds that the state’s primary duty is to allocate efficiently whatever funds it appropriates for education. Informed by conservative critiques of public-sector bloat and interest-group politics, this vision calls on courts to redirect wasteful spending and unfetter local school administrators, but without touching the “political” question of how much to spend. The better-allocation vision undergirds a recent and exhaustively detailed trial court ruling in Connecticut, as well as challenges to teacher-tenure and seniority rules now pending in Minnesota, New York, and New Jersey.
Conservative opponents of bigger-pie litigation have long argued that the empirical evidence of the effect of school spending on student outcomes is too shaky to warrant judicial intervention. Liberal critics of the new teacher-tenure lawsuits have started making precisely analogous arguments in better-allocation cases, with no apparent sense of irony. But no one has asked whether states themselves might bear constitutional responsibility for the lack of reliable information about likely effects of plaintiff-sought reforms.
In a forthcoming law review article, we pose and answer this question, developing a new, information-centric vision for education rights litigation. Under our account, the states’ primary responsibility today is to structure their educational systems so that researchers and policymakers can figure out which interventions or reforms would actually improve the constitutional performance of the school system. Courts uniformly agree that the constitutional function of public schools is to prepare children for a lifetime of productive participation in economic, political, and civic life. But researchers know very little about the effects of educational reforms on adult outcomes—and the states bear much of the blame for this.
As our article explains, states exercise enormous control over the production of knowledge about education, especially about long-run effects. This control is wielded through the architecture of administrative data systems; through the rules for assigning students, programs, and funding to schools; through the manner in which educational reforms are implemented; and through the terms on which the state provides access to administrative data.
States already possess constitutionally urgent information about the outcomes that schoolchildren realize as adults. This information is scattered across tax, voting, health, welfare, and criminal justice agencies. But, for the most part, state record-keeping systems have not been designed to enable linkage of educational and other records—and record-linkage is necessary to understand the long-run impact of educational reforms. Some states have actually banned the use of critical administrative datasets for research purposes. Likewise, in rolling out educational reforms, states rarely consider whether the rollout will enable credible tests of the reform’s effects. (Typically this requires well-defined “treatment” and “control” groups, which are similar to one another on average.)
Judicial recognition of a state duty of care with respect to the production of knowledge about education wouldn’t turn children into lab rats. States would still have to protect student records from privacy-compromising disclosures, and state officials, not researchers, would continue to set priorities.
But states would no longer be free to ignore how their own decisions affect what can be learned about the long-run effects of the state’s educational policies and programs. At a minimum, states would have to issue and periodically update a plan that identifies barriers to learning about how the state’s educational objectives can be achieved, and that explains what the state intends to do about it. Arbitrary barriers, such as flat prohibitions on the linkage of educational and other administrative records, would be vulnerable to constitutional attack. And in “bigger pie” and “better allocation” litigation, courts would consider not only whether the plaintiffs’ evidence is strong enough to order statewide reforms, but also whether the difficulty of learning about the effects of spending levels or allocative constraints without the cooperation of the state warrants a test of the plaintiff-sought remedy, which would be implemented temporarily in a randomly selected subset of schools or school districts.
Our informational gloss on the state’s duty of care with respect to education offers a way forward in the many states whose courts have, on separation-of-powers grounds, declined wade into the Stygian swamp of funding and allocative disputes. Courts can address barriers to the production of knowledge about education without touching large-scale questions about how much to spend on education and how to spend it. Whatever else the states may owe to disadvantaged children, at least the states must make it possible to learn whether their efforts to better educate those children are doing any good.
Illinois has long been one of the worst offenders in terms of school funding fairness. It is one of the wealthier states in the nation, yet the effort it exerts to fund education has been among the worst. School funding fairness reports have regularly ranked its effort as a D or low C in comparison to other states. The most troubling feature of Illinois school funding, however, has been how unfairly it distributes the meager school funds that it actually generates.
In the 2010 funding fairness report, Illinois ranked 48th in the nation in terms of funding levels in districts serving moderate numbers of low-income students compared to those with almost no low-income students. Districts serving moderate numbers of low-income students received 22% less funding per student than districts with few to no low-income students. The 2017 report showed the same problem. Illinois ranked 47th on this metric and the funding gap had grown to 23%.
The blame for this gap has rested squarely at the feet of the state legislature, which has chosen to place extraordinarily high burdens on local school districts to fund education themselves. With little state support, this districts are left to sink or swim on their own. Too many tread water or simply sink.
The irony is that Illinois' state constitution includes one of the strong education guarantees in the nation. Article X of the state constitution provides:
A fundamental goal of the People of the State is the educational development of all persons to the limits of their capacities.
The State shall provide for an efficient system of high quality public educational institutions and service.
I will refrain from an exegesis of this clause and its history, but would emphasis that it has two explicit phrases that are missing from most other state constitutions: "fundamental" and "high quality." The crucial question under state and federal constitutional law has been whether education is a fundamental right. Illinois states it as a fundamental goal, which adds a distinction, but the all-important word fundamental is there.
The other crucial question in state courts has been whether the state constitution can be interpreted as some sort of quality mandate and, if so, what is that mandate. Illinois' constitutional language leaves no doubt. The word "shall" indicates a mandate and "high quality" directly answers the other question.
Nonetheless, the Illinois courts have done nothing to hold the state accountable for complying with these constitutional mandates. Unlike the majority of other state court systems, Illinois courts have said school funding raises a political question and, thus, is left to the discretion of the legislature. Aggrieved citizens' only recourse, said the Illinois Supreme Court, is the ballot box. Well, it has taken decades, but the politics in Illinois have finally shifted.
On Tuesday, the state Senate passed a new school funding formula. The bill amended and strengthened the house version and the governor has said he will sign it. According to reports, it will drive far more funds toward needy districts and place less reliance on local property tax. This new formula is said to be "evidence based," meaning that it responds to student and district need rather than geographic politics.
It sounds like the state is about to take a major step forward, but I will wait for someone like Bruce Baker to run the numbers and confirm it. I also cannot help but note that the bill included new money for tax credits for private school, otherwise know as neo-vouchers. I did not follow the politics on this, but imagine the deal was held hostage by an ideological stance on vouchers.
For the third year in a row, public schools will begin the year with too few qualified teachers to cover their classes. Every state in the country has reported a shortage to the U.S. Department of Education. The shortage appears to have eased in some places and intensified in others. Edweek reports
[Oklahoma] issued a record-setting 1,160 emergency certifications in 2016-17 and 855 by the beginning of August for this academic year. These certifications allow people without a teaching certificate to teach for one year, or allow a certified teacher to teach a new subject before getting recertified.
And in Nevada, the fast-growing Clark County district, which includes Las Vegas and is the fifth-largest in the country, is starting its school year with almost 400 teaching vacancies—significant, though a far cry from the more than 900 openings the district had at the start of 2015-16.
Numbers like these, however, vastly understate the problem in some states. Confronting an unmanageable shortfall, states like California, Arizona, and others have simply changed the law regarding the credentials it takes to step foot in the classroom. California developed a program that allowed interns to become full-time teachers so long as they promised to complete their studies on the weekends. And by intern, I mean someone who is just starting their education studies. This summer Arizona passed a law to allow people without any formal teacher training to enter the classroom, so long as they had a bachelor's degree or five years of experience in a relevant field. In other words, those schools that report a fully staffed faculty may have a group of teachers who are far less qualified than they were in past years.
As I explain in a recent article, this shortage is not simply part of the regular ebb and flow of the market. It is of states' own making. During the recession, they over-gouged public education budgets, went to war on teachers themselves, and took money that could have went to traditional public schools and drove it to choice programs. The effect was to scare new and prospective teachers away from the profession. The teacher pipeline was more than cut in half in California. And when states' revenues rebounded following the recession, states refused to undo the damage they had done. Instead, they simply set a new normal, continuing to fund education at levels lower than before the recession. Even today, roughly half of states spend less in real dollar terms on education than they did in 2008. This is to say nothing of the war on teachers that some states are still willing to wage.
So while I bemoan the struggles that individual districts are facing, the real culprit is their state legislatures. And while court have no direct responsibility for education, they have, at least, enabled these legislatures. In prior decades, courts have forcefully intervened to block these types of assaults on public education and insisted on state legislatures adopting rational policies to carry out their constitutional duties regarding education. Over the last decade, however, courts have increasingly looked the other way.
Two-thirds of states are funding education at a lower level today than they did in 2008. Some states are a full twenty percent or more below levels of just a few years earlier. The effect on schools has been dramatic. States have only exacerbated the problem by reducing teachers’ rights and benefits. These attacks on teachers, combined with funding decreases, have scared many prospective teachers away from the profession all together. The net result has been an extreme shortage of teachers nationwide. This past fall, large numbers of public schools opened without enough certified teachers to fill classrooms, relying instead on substitutes and interns on a full-time basis. In other instances, schools simply stopped offering certain classes. Decades of social science demonstrate these funding and teaching policies will have serious academic impacts on students. They will likely widen achievement gaps and impose learning deficits that some students will never overcome.
In the face of analogous threats, courts in the past have regularly intervened to protect educational quality and funding. Yet this time around, courts have almost uniformly refused to intervene and rarely offered a compelling reasoning for the refusal. This judicial passivism regarding education marks a troubling new trend. It suggests that the constitutional right to education may exist only in theory and that students are losing the constitutional leverage to demand that states repair the damage that they have caused. Likewise, nothing will prevent states from pursuing similar retractions again in the future.
This Article offers a doctrinal approach to reverse both educational retractions and judicial disengagement. Current trends, however, cannot be reversed without acknowledging the potential limits of judicial intervention during crisis. In particular, a serious crisis incites fear and political expediency, which can prompt legislatures to ignore court orders that purport to remedy the crisis. This disregard is inherently problematic for both education rights and the basic legitimacy of judicial authority, regardless of the subject matter. In this respect, the solution to the devaluation of education rights is also a step toward strengthening judicial authority. In education, courts must begin to incorporate prospective doctrines and rules that reduce the likelihood of judicial standoffs with legislatures. Simply put, future court orders should seek to avert crises by addressing them before they occur. This Article proposes three specific steps courts can take to achieve this end.
On one level, this may all sound like lofty theorizing, but the point of the paper is far more practical: the immediate crises that schools face are not ones that courts or states can easily fix after-the-fact. Recessions will come no matter what. The risk of shortages will always be present. The solution, then, is to plan ahead.
Schools deliver education not as single year chunks, but as collective thirteen year experiences. States must have processes and plans in place that anticipate problems, allowing them to weather recessions. This is no easy thing to do. The politics are predisposed against it. But I argue in the article that by consistently holding states accountable and adopting a few common sense standards, courts can begin to prompt states toward better decision making. States might protect their teacher pipelines through thick and thin so that they might not need to issue emergency waivers and establish alternative teacher programs every decade or so.
In 2014, plaintiffs filed two different lawsuits challenging New Mexico's education system. The first alleged that ELL and economically disadvantaged students are receiving a substandard education under the state's funding scheme and A-F grading system. The state's education funding formula, the plaintiffs alleged, fails to allocate sufficient supplemental funds for areas were the needs are greatest for at-risk and special needs students. The funding inequity, combined with the teacher evaluation system, results in experienced teachers avoiding lower-ranked schools. The second lawsuit raises similar issues and emphasizes that the outcomes for students in the state have fallen to the bottom of nation.
"These failings are costing students the opportunity to succeed," said Marisa Bono, a lead attorney for the plaintiffs, in opening statements to the court. "The state is pumping hundreds of thousands of students into the state economy who are wholly unprepared for college or career."
Education officials under Republican Gov. Susana Martinez say spending is more than adequate, and that the state has added specialized programs to help struggling students while holding teachers and school leaders more accountable for students' academic progress.
In opening statements Monday, an attorney for the state said high levels of poverty across New Mexico have a major impact on the results of student testing — something that won't be addressed by funneling more money toward public schools.
"The evidence will show that additional spending will have virtually no effect on student test scores," attorney Jeff Wechsler said. "The defendants cannot show that spending more will impact them in any meaningful way."
. . . .
The plaintiffs called on Santa Fe Public Schools Superintendent Veronica Garcia — a former state public education secretary — to testify about what she described as shockingly low levels of proficiency in math and reading among graduating students.
Garcia noted that many schools are not included in new programs that intercede at an early age by expanding pre-school to 4-year-olds and lengthening the school day and school year through third grade. She faulted the overall level of state funding for public schools, as well as limited funds for programs tailored toward the students from low-income households where English is not the primary language.
It will be interesting to see what evidence Wechlsler uses to defend his claim that additional money is inconsequential. Maybe, he hopes to focus on "virtually" no "meaningful" effect, rather than suggest there is no effect. But even then, past research is not on his side. As detailed in Averting Educational Crisis, new research findings shoe a particularly compelling connection. For instance, Kirabo Jackson's study of three decades of data "found that a 20% increase in per-pupil funding, if maintained over the course of a students’ education career, results in low-income students completing almost a full additional year’s worth of education. That additional learning eliminates two-thirds of the gap in outcomes between low- and middle-income students." Likewise, the Kansas Supreme Court emphasized a recent study by the state itself that "concluded, with ‘99% confiden[ce],’ that the relationship between student performance and district spending was positive, i.e., that a 1% increase in student performance was associated with a .83% increase in spending."
A federal district court judge has decided that Gardendale – a predominantly white city in the suburbs of Birmingham, Alabama – can move forward in its effort to secede from the school district that serves the larger county. The district Gardendale is leaving is 48 percent black and 44 percent white. The new district would be almost all white.
The idea that a judge could allow this is unfathomable to most, but the case demonstrates in the most stark terms that school segregation is still with us. While racial segregation in U.S. schools plummeted between the late 1960s and 1980, it has steadily increased ever since – to the the point that schools are about as segregated today as they were 50 years ago.
As a former school desegregation lawyer and now a scholar of educational inequality and law, I have both witnessed and researched an odd shift to a new kind of segregation that somehow seems socially acceptable. So long as it operates with some semblance of furthering educational quality or school choice, even a federal district court is willing to sanction it.
While proponents of the secession claim they just want the best education for their children and opponents decry the secession as old-school racism, the truth is more complex: Race, education and school quality are inextricably intertwined.
The Trump administration has announced its plan to transform education funding as we know it. The new budget proposal takes aim at a host of elementary, secondary and higher education programs that serve needy students, redirecting those funds toward K-12 school choice in the form of vouchers, tax credits and charter schools.
Public schools that enroll a large percentage of low-income students stand to lose significant chunks of their budget, as well as a number of specialized federal programs for their students. At the same time, the Trump budget will incentivize families to leave not only these schools, but public schools in general.
As a scholar of education law and policy, I note that my recent research on state voucher and charter programs shows that the loss of both money and core constituents proposed by this new budget could throw public education into a downward spiral.
Lakewood School District in New Jersey has a budget crisis on its hands--a deficit of $15 million for the coming year. The district is forced to spend about $39 million on non-publication education. Regardless, to make up the shortfall in the public schools, the district plans to lay off over a 100 teachers and staff, eliminate sports programs, and drastically increase class size. In a state where the constitution guarantees students a "thorough and efficient" education and its courts have rigorously enforced this right, these cuts are troubling indeed--so much so that the state department of education has said it will not certify the district's budget as being in compliance with that constitutional mandate. In his recent essay in Asbury Park Press, David Sciarra writes:
Lakewood’s budget crisis is nothing new. The district lurches from year to year, making cuts in essential teachers, support staff, programs and services.
The victims of this tragedy are the 6,000 Lakewood public school children. Virtually all are poor and 95 percent are Latino or black. Twenty-seven percent are limited English proficient and 15 percent require special education.
The cause of Lakewood’s budget crisis is no secret. The district must not only support its public schools but it must pay to transport 30,000 students to private schools and pay for the cost of special education for many of those same private school students.
The drain on Lakewood’s budget from non-public expenditures is enormous. The district is forced to divert nearly $13 million in funds earmarked for public school students to pay for non-public transportation. It also must shoulder $26 million in non-public special education costs.
The state has the power to fix Lakewood’s budget crisis now. It doesn’t need new laws or changes to the school funding formula.
Acting Commissioner Kimberly Harrington has the authority to restructure the budget so it provides Lakewood students a thorough and efficient education. And Lakewood’s state fiscal monitor, Michael Azzara, is empowered to override the board of education if necessary to eliminate the budget deficit.
These state officials must act. First, they must halt the transfer of $13 million in public school funds to subsidize non-public transportation. Keeping those funds in Lakewood’s budget — where they belong — will stop the bleeding and allow the district to maintain essential services to its students.
Second, they must take the operation and cost of special education to non-public school students out of the district’s hands. The state must assume full responsibility to approve and pay for special education in private schools. This would relieve Lakewood of a fiscal and managerial burden it simply can no longer handle.
Let’s face it. The Lakewood budget has become nothing more than a vehicle for funneling vast sums of public school funds to pay for private and religious schools. This must end. Private school students are not constitutionally entitled to a thorough and efficient education. Only Lakewood public school children are.
Last year, advocates for public education in Nevada secured a majority victory. The Nevada Supreme Court found that the state's voucher program violated the state constitution's provisions for supporting public education. The program funded vouchers with money that the constitution mandates to go to public education. The Governor has now cooked up a new plan that he thinks solves the problem, but as David Sciarra points out, the new one, as a practical matter, is not really any different. And if it passes, it threatens to lead the state down the same path as Arizona, which I argued has placed the viability of public education in danger. Here is David Sciarra's essay, first published in the Las Vegas Sun:
Arizona offers glimpse into threat ESA bill poses to Nevada schools
Gov. Brian Sandoval is pressing lawmakers to revive the private school voucher program blocked last September by the Nevada Supreme Court. The court ruled the program was unconstitutional because it would deplete funds earmarked by the Legislature to operate Nevada’s public schools.
The governor’s bill, SB506, carries forward most features of the prior law. Sandoval wants the per-pupil amount spent on public school students, roughly $5,700, to be deposited into education savings accounts to subsidize private and religious school tuition and pay for other private education expenses. The governor also wants vouchers for any household, even the wealthy. And like the prior law, 100 days of public school enrollment is the only eligibility requirement.
To get around the Supreme Court ruling, SB506 changes the way vouchers are funded.
The funding will not come directly out of public school budgets. Instead, Sandoval proposes a separate appropriation of $60 million over the biennium.
At that level, approximately 2,500 vouchers can be awarded each year, not enough for everyone who signed up under the prior law. So the vouchers will be given out on a first-come, first-served basis.
Lawmakers should flatly reject the governor’s bill. And they need look no further than to Arizona for the reasons why.
In 2011, Arizona enacted an ESA voucher program limited to students with disabilities. Once it got rolling, vouchers were expanded to include students in low-performing public schools.
This year, 3,200 vouchers were funded by Arizona taxpayers, totaling $49 million. The vast majority of the voucher funds are used to subsidize tuition, fees and other expenses charged by religious and private schools.
But Arizona voucher proponents weren’t satisfied. Cheered on by U.S. Secretary of Education Betsy DeVos, Gov. Doug Ducey recently signed legislation expanding vouchers again, this time making all 1.1 million public school students eligible. To pass the bill, proponents accepted a cap of 5,500 new students per year and 30,000 students over the next five years. The cost to taxpayers and the public schools could quickly swell to over $100 million or more.
But make no mistake: Voucher proponents are already aiming to lift the caps and throw the program open to everyone.
As in other states, Arizona’s voucher law lacks accountability. Private schools don’t have to administer the same tests as public schools, so there is no way to know if student outcomes are better.
Oversight of voucher accounts is lax. A recent audit uncovered payments for groceries, games and gift cards using voucher funds.
Like those who signed up for Nevada’s vouchers, most Arizona voucher recipients are from affluent neighborhoods, according to an investigation by the Arizona Republic. As a state senator who opposes vouchers noted, the expansion of vouchers will only spur the exodus of affluent white parents from the public schools, leaving those schools to educate students of color, poor students and English language learners with less money.
And public school funding in Arizona, like Nevada, is among the lowest and most inadequate in the country.
So Nevada legislators beware. Gov. Sandoval’s voucher bill is a Trojan horse. His $60 million for vouchers is just the start.
Once voucher proponents get their foot in the door, they will follow the Arizona playbook, demanding expansion in the next biennium session. And, led by DeVos, they will not stop until they achieve their goal of taking down our public schools, without regard to the educational damage inflicted on the children left behind.