Monday, March 31, 2014
As a result of the Abbott v. Burke litigation, New Jersey has consistently had the most progressive funding formula in the nation, meaning that the state drives the highest funding to the neediest school districts. Governor Christie has decided to abandon the progressive funding formula for the 2014-15 school year. Moreover, in the notice of change sent to districts, Christie did not indicate how the state aid would be allocated in the absence of this formula. The Education Law Center, in papers filed with the Supreme Court of New Jersey, assert that the Governer's failure to fund the formula violates 2009 and 2011 rulings by the court:
In the 2009 ruling, the Court allowed the State to implement the SFRA, but only if the State operated the formula from year-to-year at its "optimal level." In 2011, the Court, in ordering the Governor to restore $500 million in funding cut from urban districts, again ordered the State to keep the formula running properly in future years. In both rulings, the Court made crystal clear that the State has a continuing obligation to operate the formula every year to ensure all students the resources they need for a constitutional, "thorough and efficient" education.
Friday, March 21, 2014
The U.S. Department of Education's appointment of the Equity and Excellence Commission in 2010 and the release of its report For Each and Every Child: A Strategy for Education Equity and Excellence last spring would indicate a serious interest in funding fairness. This Commission also fell on the heels of the Department seeking authority to collect far more information on school funding than it ever had before. But if one's seriousness is measured by where one puts its money, the Education Law Center's studies suggest that the Department is anything but serious.
In the past four years, the Department has given out billions of dollars in competitive grants through its Race to the Top initiative. Those grants, ironically, have routinely gone to states ranking the worst in terms of funding fairness. As the Education Law Center pointed out just over a year ago, all of those grants in 2012 went to states that had serious deficiencies in their school funding formulas. One might defend those grants as attempts to help those states that need it the most. After all, I and Goodwin Liu have advocated for federal funding formulas that help needy states or incentivize effort. These grants, however, do not achieve that. The Education Law Center's reports factor in several different aspects of school funding before assigning a state a final grade. For instance, they assess how hard a state is trying to fund education and how equitably a state distributes its funding, even if those funds are meager. In other words, when a state ranks poorly on the Education Law Center's report cards, there is not much positive that can be said for the state. Giving grants to those states begs the question of whether school funding fairness is really a priority for the Department of Education.
Thursday, March 13, 2014
Christine Kiracofe's latest article, Serial and Second Generation School Finance Litigation: 2000-13, 299 Ed. Law Rep. 1 (2014), accomplishes what I have tried to encourage law students to do in seminar and law review articles for the past decade: assess the impact of school finance decisions by comparing the evolution of the precedent and student outcomes in individual states. Prof. Kiracofe's article focuses on two categories of school finance litigation: a) what she calls "serial" litigation, meaning "petitioners repeatedly return to court over a significant period of time … litigation in some of these cases is seemingly endless, and may result in little change … and even then perhaps only in small increments;" and b) "second generation" litigation, which means "plaintiffs secured a victory at court only to have circumstances change over subsequent years that once again render a system of funding public schools unconstitutional."
She then looks at how these states have fared on the Education Law Center's school funding fairness reports. She finds that "[m]any of the states that have experienced second generation and/or serial litigation over the past ten years earn favorable marks on the Education Law Center's recent National Report Card study. While it is impossible to draw a direct correlation between state school finance litigation and funding system health using the National Report Card measure alone, this data is promising for funding change advocates who will undoubtedly be involved in the litigation process for a significant amount of time."
The article is interesting in its own right, but also provides a good starting point for students who may want to dig deeper in terms of their own state or region.
Tuesday, March 11, 2014
The Kansas Supreme Court has ruled in favor of the plaintiffs in the state's long-running finance litigation, Gannon v. State. Last week, the Court upheld the lower court's ruling, writing:
As for the capital outlay funding claims, we hold the panel correctly ruled that the
State created unconstitutional, wealth-based disparities by withholding all capital outlay
state aid payments to which certain school districts were otherwise entitled under K.S.A.
2012 Supp. 72-8814(c). We additionally hold the panel correctly refused to order
payment of capital outlay state aid to which districts were otherwise entitled for fiscal
year 2010. We further hold that the panel correctly ruled that the State created
unconstitutional, wealth-based disparities by prorating the supplemental general state aid
payments to which certain districts were entitled under K.S.A. 2012 Supp. 72-6434 for
their local option budgets.
It did find, however, that the lower court had applied the wrong legal standard in determining whether the state was violating students' rights to an adequate education, and remanded on that point.
Overall, the case reads as a huge victory for the plaintiffs (see the Education Law Center's analysis), although the state is claiming some solace in the flexibility the opinion potentially affords it.
Monday, March 10, 2014
The National Center on Education Statistics has released Condition of America's Public School Facilities: 2012-13. Based on survey responses the report found that
53 percent of public schools needed to spend money on repairs, renovations, and modernizations to put the school’s onsite buildings in good overall condition. The total amount needed was estimated to be approximately $197 billion, and the average dollar amount for schools needing to spend money was about $4.5 million per school. Among schools needing to spend, the cost estimate was based on the best professional judgment of the survey respondent in 57 percent of the schools; on facilities inspection(s)/assessment(s) performed within the last 3 years by licensed professionals in 44 percent of the schools; and on a capital improvement/facilities master plan, schedule, or budget in 42 percent of the schools.
Moreover, 5 to 17 percent of the schools "were rated as unsatisfactory or very unsatisfactory" in terms of environmental factors. As NPR put it, our school buildings are in no better shape than our bridges.
Wednesday, March 5, 2014
Obama's 2015 Equity Initiative: Quality Teachers, Funding Fairness, School Climate, and Concentrated Poverty
Notwithstanding all the claims that the President's budget is dead on arrival, his new budget is important in the policies and values it is putting forward, particularly since this President has shown his ability to push his policies administratively, even when Congress does not act. The 2015 budget includes "a new initiative called Race to the Top-Equity and Opportunity (RTT-Opportunity), which would create incentives for states and school districts to drive comprehensive change in how states and districts identify and close opportunity and achievement gaps." The initiative focuses on the equitable distribution of school funding, hiring quality teachers, and improving school climate. Tagged on at the end is a new message from the President: "identify and carry out strategies that help break up and mitigate the effects of concentrated poverty." It is unclear whether the President intends to promote integration strategies, try to make separate equal, or both. The President's own description of his plan states:
Grantees would enhance their data systems to place a sharp focus on the districts, schools, and student groups with the greatest disparities in opportunity and performance, while also being able to identify the most effective interventions. They would develop thoughtful, comprehensive strategies for addressing these gaps, and use the data to continuously evaluate progress. Grantees would invest in strong teaching and school leadership, using funds to develop, attract, and retain more effective teachers and leaders in high-need schools, through strategies such as individualized professional learning and career ladder opportunities.
States would collect data on school-level expenditures, make that data transparent and easily accessible, and use it to improve the effectiveness of resources and support continuous program improvement. Participating districts would be required to ensure that their state and local funds are distributed fairly by implementing a more meaningful comparability standard based on this school-level expenditure data.
RTT-Opportunity funds also would be used, for example, to provide rigorous coursework; improve school climate and safety; strengthen students’ non-cognitive skills; develop and implement fair and appropriate school discipline policies; expand learning time, provide mental, physical, and social emotional supports; expand college and career counseling; and identify and carry out strategies that help break up and mitigate the effects of concentrated poverty.
The resegregation of public schools over the past two and a half decades is not news to most of the readers of this blog. Numerous reports demonstrate that our public schools are now as racially and socioeconomically segregated as they were when mandatory desegregation began in earnest in the early 1970s. What may be news is the new trend of "school district secession." Historically, many of the most effective school desegregation plans covered large school districts in metropolitan areas. Now that those districts have been released from court ordered desegregation, smaller wealthier neighborhoods are attempting to secede from their districts to form their own independent and isolated schools. Businesweek reports:
In Alabama, which makes it relatively easy to create districts, two Birmingham suburbs have left the countywide system in the past two years. After the majority-black Memphis schools merged last year with the majority-white county district, Tennessee's Republican-dominated legislature lifted a decades-old ban on creating new systems, and six suburbs seceded, approving sales tax increases to pay for their schools. Parent groups in Atlanta and Dallas are considering similar proposals.
A similar move is being pushed in Baton Rouge, Louisiana, where a parent leader of secession comments that "We are tired of basically being a cash cow for the rest of the parish." If secession occurs, per pupil spending in the Baton Rouge district would drop from $9,635 to $8,870. The new affluent district would have per pupil expenditures of $11,686. In other words, secession would create a $2,000 per pupil gap overnight. In an average elementary school, this would be the difference of nearly a $1,000,000 a year.
This trend raises important causal questions. Are these secession movements the lingering effects of school systems that never became substantively unitary? Are they the result of the "invidious value" that Kevin Brown argues segregation fostered and integration never cured? (See Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease?, 78 Cornell L. Rev. 1 (1992)). Or are they the result of bringing market ideas to public schools and fomenting the idea that education, rather than a public good, is consumer resource? I would suspect the trend stems from all three. In so far as it is connected to the third, it also demonstrates my point in Charters Schools, Voucher, and the Public Good, where I argue that charters and vouchers are not inherently good or bad. Rather, they are the policies through which good or bad values can flow (most often bad at the moment). But laws permitting school district secession allow these same bad values to flow through traditional public schools.
For Jan Resseger's analysis of the trend, see here.
Thursday, February 20, 2014
Last year, Kimberly Robinson organized a conference on the 40th anniversary of San Antonio v. Rodriguez. A collected works book arising out of that conference will be published soon with Yale University Press. A few law review articles from the conference were also recently published with the Richmond Journal of Law and the Public Interest. Links to those articles are here. Charles J. Ogletree, Jr. is included among those authors. He wrote The Implications of San Antonio Independent Sch. Dist. v. Rodriguez, 17 Rich. J.L. & Pub. Int. 515 (2014). The article offers a lot of then versus now comparisons, but of particular note, given his criminal justice expertise, is a section on school funding versus prison funding. He writes:
Despite the steps that have been taken to reduce the funding inequalities between poor and wealth school districts, there has yet to be a diminution in one other important funding disparity: that between prison spending and education spending. State criminal corrections spending has outpaced growth in spending on education, transportation, and public assistance, and, after adjusting for inflation, state spending on criminal correction has tripled over the past three decades and has become the fasting-growing budgetary expense after Medicaid. Indeed, according to a review of data from the Department of Justice and the National Education Association, many states spend three to four times more per capita on incarceration than on education. California, the most populous state in the union, spends about $47,000 per inmate while spending approximately $9,000 per student. New York spends roughly $56,000 per prisoner and about $16,000 for its students, while Georgia and Michigan each spend about a third of the amount on their public school students as they do on their prison populations.
The same dichotomy between criminal corrections spending and public school spending can be found between criminal corrections spending and higher education spending. Research has shown that, adjusting for inflation, over the twenty-year period from 1987 to 2007 states' corrections spending grew more than the six times more than spending on higher education. Regionally, the differences between higher education and prison spending were more pronounced. During the same time period, inflation-adjusted prison spending in the Northeast rose sixty-one percent while higher education spending in the region dropped 5.5 percent. In the West, the amount of money allotted to prisons grew 205 percent while money spent on postsecondary education only grew twenty-eight percent. Analysis on the spending disparity between prison and higher education at the state reveals an even more staggering divide. In 2011, California's postsecondary education received thirteen percent less inflation-adjusted dollars than in 1980 while criminal corrections received a 436 percent expansion in funding during the same period.
In all, the growth in state spending on prisons and criminal corrections has outpaced the growth in education spending. However, unlike the push for funding parity between rich school districts and poor school districts that occurred during the aftermath of Rodriguez, there does not seem to be a concerted, serious push to reverse the trend of the growth in prison spending outpacing the growth in education spending. The policy discussion surrounding the growth in funding of incarceration and education presents a zero-sum proposition, because, unlike the federal government, most states have to balance their budgets. As a result, a dollar spent in one area is a dollar that can no longer be spent in another. The effects of this decision could have significant consequences for the future of the children from poor areas whom Rodriguez litigation aimed to benefit and who have benefitted from the education funding cases post-Rodriguez litigation. Children from low-income areas are at a distinct disadvantage when increases in prison spending result in slower growth or a reduction in education spending. Research has shown that significant concentrations of people going to prison came from poor neighborhoods of color, and in these neighborhoods millions of dollars are being spent to incarcerate its residents. As a result, money spent on incarceration is often the predominant public investment in those communities while education opportunities are dwindling with repeated budget cuts. According to researchers, completing school is a critical protective factor for adolescents who come from troubled neighborhoods. Yet, money is diverted from this resource to incarceration, preventing low-income youth in many areas of the country from having quality access to an effective tool for betterment.
Tuesday, February 18, 2014
Erika Wilson's new article, Towards a Theory of Equitable Federated Regionalism in Public Education, is forthcoming in the UCLA Law Review. The article is aimed at addressing the longstanding problem of inequity and segregation across school district lines, which were sanctioned by the Supreme Court in Milliken v. Bradley and San Antonio v. Rodriguez. Wilson says the problems are further exacerbated by the "a strong ideological preference for localism" in state education laws that "do not require or even encourage collaboration between school districts in order to address disparities between neighboring school districts." Thus, she calls for a reconsideration of "the wholesale commitment to localism in public education" and argues that, "in some instances, the dissemination of public education should be made on a regional basis rather than a local basis. [Her article] examines how enacting regionalism — a theoretical framework, which advocates for the installment of regional governance structures — might occur in public education. Borrowing from two specific theories of regionalism, equitable regionalism and federated regionalism, [her article] proposes a framework entitled 'Equitable Federated Regionalism' for disseminating public education on a regional basis."
This new article builds on her prior work, Leveling Localism and Racial Inequality in Education Through the No Child Left Behind Act Public Choice Provision, 44 U. Mich. J. L. Reform 625 (2011). Both works are insightful attempts to push us beyond old ways of thinking. They are fit nicely with both positive and negative developments in a few localities. Consider Omaha, Nebraska's cooperative school district zones, which suggests Wilson's proposals are more than feasible. Or consider the current school transfer provision in Missouri that is wreaking havoc on both accredited and unaccredited school districts. Wilson's proposals might offer a far more orderly means of dealing with the problems there. The same is true of the problems that will follow the rise of parent triggers, school closures, and the like in other localities.
Friday, February 7, 2014
I am a little behind the times on this one, but a group of nine students, represented by Ted Olsen, are challenging the constitutionality of California statutes that grant teachers permanent employment status after 18 months of service, that create several procedural hurdles to dismissing ineffective teachers, and that elevate seniority above teaching effectiveness in layoff decisions. Their theory is that, per school finance precedent, education is a fundamental right in California and students are guaranteed equal educational opportunity, but statutes that keep ineffective teachers in place violates that right by subjecting students to subpar educational opportunity.
Given the malleability of the concepts of education as a fundamental right or a constitutional right to adequate education, there are few inequities or impediments that are beyond constitutional challenge. I myself have made arguments leveraging that precedent beyond just money (student assignments, school discipline, and the like). This suit, however, goes a bit further in that it assumes the problem is the teachers rather than a system that is incapable of attracting, retaining, training, or developing effective teachers. Their facts just as easily lend themselves to a claim on behalf of the districts with ineffective teacher against the state, charging that they lack the resources to hire teachers that are already effective or improve the ones who are not yet effective. This lawsuit assumes that these are inherently bad teachers and that there are others waiting in the wing to take their place. I am not sure either assumption is true. With that said, I am generally sympathetic to the notion that schools and the state should be more interventionist in controlling the placement, hiring and retention of teachers. I am just not sure that this lawsuit is the best way to get us there.
Monday, February 3, 2014
I admit to being ignorant of the backstory, but the Taxpayers United of America suit against an Illinois school district for pushing a referendum to raise additional school funds strikes me as absurd. The referedum failed, so it is unclear to me why the plaintiffs would have continued to press the case, except to teach the district a lesson about raising education revenues.
The Taxpayers United of America alleged that “defendant and its members proceeded with the referendum knowing that it was misleading and understated the amount of the property tax increase, and that they engaged in illegal electioneering to promote an affirmative vote on the referendum.” Peraica v. Riverside-Brookefield High Sch. Dist. No. 208, 999 N.E.2d 399, 403 (Ct. App. Ill. 2013).
The trial court dismissed the plaintiff’s complaint, and the court of appeals affirmed. The court of appeals held that the plaintiffs failed to establish a violation of §1983 of the Civil Rights Act because they failed to recognize any violation of their constitutional rights. Instead, ““the crux of Plaintiffs' constitutional claim appears to be that they ‘were forced to struggle against the public funds' that defendant supposedly spent in support of the referendum.” Id. at 406. The court, relying on Kidwell v. City of Union, 462 F.3d 620,626 (6th Cir. 2006) noted that “The natural outcome of government speech is that some constituents will be displeased by the stance their government has taken. Displeasure does not necessarily equal unconstitutional compulsion, however, and in most cases the electoral process—not First Amendment litigation—is the appropriate recourse for such displeasure.”
Monday, January 27, 2014
Deborah Gerhardt at UNC School of Law has been in the middle of North Carolina's fight over teacher pay, accountability, and tenure. In the Slate article earlier this year, she summarized North Carolina's race to the bottom:
As recently as 2008, North Carolina paid teachers better than half the nation. . . . After six years of no real raises, we have fallen to 46th in teacher pay. North Carolina teachers earn nearly $10,000 less than the national average. And if you look at trends over the past decade, we rank dead last: After adjusting for inflation, North Carolina lowered teacher salaries nearly 16 percent from 2002 to 2012, while other states had a median decline of 1 percent. A first-year teacher in North Carolina makes $30,800. Our school district lost a candidate to a district in Kentucky because its starting salary was close to $40,000. It takes North Carolina teachers more than 15 years to earn $40,000; in Virginia it may take only four. Gap store managers on average make about $56,000.
This decent to the bottom is shocking in a state that was dubbed the education state in the early 1990s and was a model for the authorization of the No Child Left Behind Act. This is coming at the exact same time when Mississippi has introduced legislation to increase its starting teachers' salary from $31,000 to $37,000. Initial reports indicate this increase will pass with bipartisan support. Mississippi has various other progressive measures before the legislature (littered with a few regressive ones) that may pass as well. That moving education forward in North Carolina would be more difficult than Mississippi is hard to comprehend, until one realizes that opponents of traditional public education have turned the nation's education state into the nation's battleground.
Tuesday, January 21, 2014
The trial court judge in Connecticut's pending school finance trial has rejected the state's request for a long postponement. The case raises the question of whether the state is meeting its constitutional obligation to provide a "suitable education" for every child in Connecticut. The plaintiffs, Connecticut Coalition for Justice in Education Funding, allege that the state's recent 2% increase in funding for education is insufficient to meet that obligation. As to the requested delay, the plaintiffs argued that the state's motion to postpone the trial until 2015 was a politically-motivated move to delay the trial until after the 2014 gubernatorial election. The has set the trial to begin on September 9th, 2014, which is in advance of the election. For more details, see here.
Thursday, January 16, 2014
The details are not all in, but South Carolina Governor, Nikki Haley, has unveiled a new budget that is pleasing most of the state's educators. This coming year, South Carolina expects to bring in an additional $200 million in tax revenues, based on economic growth. Gov. Haley is proposing that $160 million of that increase go to education. In education, the key question is more often how the money is spent, not just how much money is spent. As Education Law Center reports have shown, some states spend a lot of money, but it is disproportionately spent in wealthy districts that do not necessarily need it. Initial indications suggest Governor Haley is moving in the right direction on this question as well. The state's current education funding formula is outdated. She proposes to change it and drive an additional 20 percent in state funding toward high need students and districts.
The interesting side note here is that Haley, who has not been particularly popular in the state, is up for reelection. This move on funding could help her pick up education votes, particular those in the political middle, which would tend to go against her. But more important is the pending school finance case before the state supreme court. It ordered rehearing a year and a half ago because, at that time, the case had been on the court's docket for years and the underlying facts had changed so much. If Haley's proposal becomes law, the facts before the court would once again be stale. This portends two significant possibilities. First, the court once again fails to render a decision and all but drops the case, making itself effectively irrelevant in the protection of students' constitutional rights. Or, two, the court could issue a relatively strong decision, based on the old facts, indicating that the state must do more for education, but remand to the trial court for a remedy. At the trial court, the new facts would come in and show that the state had taken steps consistent with the supreme court's holding and, thus, no additional remedy is necessary. In other words, it would be much easier for the supreme court to articulate a meaningful constitutional standard when the state has already complied. This would theoretically make for good doctrinal precedent that could be drawn on later, but, as a practical matter, would beg the question of the supreme court's relevance.
Monday, January 13, 2014
Friday, the Eleventh Circuit affirmed the district court's holding in I.L. v. Alabama that the state's school funding was not discriminatory. The Eleventh Circuit's opinion primarily focuses on issues of jurisdiction and redressibility. In the final pages of the opinion, the court reaches plaintiffs' central claim: that several provisions of and two amendments to the Alabama Constitution were motivated by discrimination. In particular, plaintiffs claimed that the caps on education spending and otherwise generally low commitment to education trace back to Alabama's desire to disinvest in education once it realized it would have no choice but to desegregate its schools and their finances. (Similar claims were also made in a challenge to higher education funding in Knight v. Alabama, 476 F.3d 1219 (11th Cir. 2007)). The court acknowledged Alabama's sordid history, but indicated it could find no clear error in the the trial court's conclusion that these limitations on education "were a reaction to the increases in property appraisals and assessments mandated by [an earlier case], and the accompanying threat of a tremendous increase in the property taxes paid by land owners."
This case is unique in its attempt to explicitly link intentional discrimination with dismal school funding. As of yet, however, no modern plaintiffs have been able to sustain such a claim on a statewide level. The further in time they are removed from the original "deed" the more skeptical courts tend to become of the claim.
The full opinion is available here. Thanks to Scott Bauries for alerting me to the opinion.
Tuesday, January 7, 2014
As discussed here back in the fall (here and here) , the federal sequestration had perversely uneven effects on schools. Most federal money for public education flows through Title I of the Elementary and Secondary Education Act and its funding formulas revolve around the number of poor students a district has. So, the more poor kids a district had the more it lost under the sequestration. As federal negotiators discuss a two-year budget deal, the question is what, if any, funds to restore to education. Initial stories indicate that education would be spared continued cuts and will see some money come back.
According to Alyson Klein of Edweek, education advocates and districts are asking that the funding be restored mostly through Title I, not the competitive grant process that has dominated education spending during the present administration. One can read this a couple of ways: educators are tired of the tough medicine that the Obama administration has been feeding them through the grant process; Title I is effectively an entitlement program and districts want their checks; or Title I, although not perfectly, directs funds to serious student needs and, thus, districts realize they need it most. My take is that there is varying degrees of truth in all three. Districts are tired of the medicine because it tastes bad, but also because there are serious questions about whether it works. Districts also want their checks because everyone likes getting paid, but they also have real student needs that the money will go toward, particularly in the highest poverty districts like Philadelphia, which almost imploded this past fall due to state and federal cuts.
Regardless of the motivations, a return to formulas is great news for those of us who have studied them intently in recent years. The formulas have been entirely ignored by the current administration, as it tried to wield power through the grants. While the grant program certainly spurred a lot of legislative change in the states around expanding charters and policing teachers, it was too random and piecemeal to ensure student need was consistently met. With that said, Title I's formulas are riddled with their own flaws. Those flaws, however, are not fundamental and can be fixed by rebalancing the funding weights. For more on how Title I could meet student need, incentivize changes in state funding formulas, and increase integration, see the solutions section of this article.
Friday, December 20, 2013
Early this summer, teachers, school boards and parents challenged the funding mechanism for Louisiana's voucher program before the state supreme court and won. The court held that the funding mechanism impermissibly diverted funds away from public schools. In a new lawsuit, nineteen school districts are taking their complaints one step further and challenging the sufficiency of their per pupil allotments from the state. Their claim is premised on the fact that the state's formula does not include a growth factor. Currently, the state allots a minimum foundation program. If that amount is the constitutional minimum for year 1, which seems to be the reading of prior courts, it would necessarily need to increase for year 2 if there was any inflation, population growth, etc. The districts are seeking at 2.75 percent growth factor, which would amount to $200 million statewide. Details on the case are short right now. The plaintiff districts appear to be focused on encouraging other districts in the state to join the suit.
Wednesday, December 18, 2013
Decision on the Constitutionality of Washington's Charter Schools: They Do Not Fit Within the Uniform System
Just two weeks after hearing arguments regarding the constitutionality of Washington's Charter Law, the trial court has issued its opinion. The court rejected plaintiffs' claims that legislature had improperly delegated its educational duties and that the funding mechanisms for the charters were unconstitutional. The court, however, agreed with one of the plaintiffs' key theories and issued language making the point that anti-charter advocates have been screaming for over a decade. On the question of whether charter schools are "common schools" and part of the constitutionally required "general and uniform system of education," the court wrote that under existing case law in the state:
the legislature cannot "by any designation or definition" establish a common school that does not meet the minimum constitutional criteria. [That precedent] has not been overruled. . . . A charter school cannot be defined as a common school because it is not under the control of the voters of the school district. The statute places control under a private non-profit organization, a local charter board and/or the Charter Commission.
But the court followed that holding with the conclusion that, on their face, charter schools were not inconsistent with the obligation to provide an adequate education. To make that claim, the plaintiffs will have to show an actual deficiency in the quality of particular charter schools. The court said the same in regard to whether the Act removed the State Superintendent's constitutional supervisory authority. While the Act potentially could remove the Superintendent's authority, the court indicated that the statute on its face was did not require a removal of authority. Thus, plaintiffs would need to demonstrate some specific factual instance where this ocurred.
The Center for Educational Reform, a charter advocacy group, rushed to ward off the notion that the case was a loss for charters. In its press release, it wrote:
Egged on by hyperbolic media headlines, teacher union chiefs and their anti-reform surrogates declared the Washington state charter school law unconstitutional, treating it as the kiss of death to innovative educational solutions in the Evergreen State. However, the ruling actually upholds the law’s constitutionality, albeit not to its fullest, which no doubt sets up an appeal decision in an attempt to satisfy one side or the other.
. . .
According to leading interpretations of the judgment, the law itself is constitutional, allowing for the approval of charter schools to move forward in 2014. But the judge also ruled charter schools don’t fit the definition of a “common school” stipulated in the state constitution, which could present a barrier to receiving facilities funding from the state budget.
At the end of the day, all of this represents the feeble attempt at which the teacher unions and like-minded allies are trying circumvent the democratic process and impose their will on students and families in need of better schooling options. . . .
By "leading interpretations," the Center means a local newspaper, not a legal scholar. My reading is that holding that charters are outside of the definition of common schools is huge because the state has a constitutional obligation to common schools, but none to charters, even if charters might otherwise be legally created. This is key because when budgets are lean the constitution will demand that common schools are first in line. Moreover, the court left open the availability of a factual legal challenge to charters' qualitative adequacy and their supervisory structure.
Does this mean Washington cannot create charters? No. Does it mean that charters lack the unfettered access to funding and freedom from standards that charter advocates want? Yes.
With that said, this case will undoubtably make its way to the state supreme court for the final word.
Friday, December 13, 2013
Last night, LaJuana posted the lawsuit by a group of educators and taxpayers challenging the constitutionality of North Carolina's recently enacted voucher program. I wanted to add a little more commentary on how the case fits into the broader framework of voucher and school finance litigation.
The plaintiffs rely on school finance precedent and specific language in the state constitution to argue that the program is unconstitutional. First, the North Carolina Constitution indicates that state funds deriving from public lands and proceeds that are set aside for education "shall be paid into the State Treasury and, together with so much of the revenue of the State as may be set apart for that purpose, shall be faithfully appropriated and used exclusively for establishing and maintaining a uniform system of free public schools.” Thus, the use of any of these funds for private vouchers is a violation.
Second, the state supreme court has held that, "[u]nder the North Carolina Constitution, the State must provide all students an opportunity to receive a sound basic education." But the state has yet to fulfill that guarantee for all students and, thus, the diversion of resources away from meeting this obligation is a violation of the constitution.
Third, even if one could characterize the voucher program as somehow being part of the delivery of public education, it would still violate the constitutional requirement of a "uniform system of public schools." The voucher program is essentially standardless and makes no attempt to ensure the constitutionally mandated uniformity of opportunity between voucher students and public school students.
In many respects, this lawsuit mirrors Bush v. Holmes, 919 S.. 2d 392 (Fla. 2006), in which the Florida Supreme Court held that the state's voucher program was an unconstitutional diversion of public education funds to private schools. Both cases draw on the same type of explicit
Thursday, December 12, 2013
The superintendent of Schenectady schools in New York, Laurence Spring, plans to file an administrative complaint with the U.S. Department of Education's Office for Civil Rights (OCR) on Friday. He alleges that his district is receiving $62 million less per year than the state had agreeded to in the school finance litigation from 2007. Spring concedes that Schenectady is not alone in its budget shortfall, but that by his calculations predominantly white schools are suffering a smaller per pupil shortfall than predominantly minority schools. In other words, the current funding formula in New York disparately impacts minorities in violation of the Department of Education's Title VI regulations. Spring emphasizes "This is not a school funding case — it’s an issue of discrimination. . . . New York state implements an educational funding structure which discriminates against students of color, English language learners and students with special needs.”
The substance of the claim--racially disparate funding--is not unique, not even in New York. The Campaign for Fiscal Equity made the same claim in regard to New York City schools and alleged a Title VI violation alongside of its state constitutional claims in the late 1990s, only to withdraw it after the Supreme Court in Alexander v. Sandoval held that not private right of action exists to enforce disparate impact regulations. This current claim, however, is distinct in terms of the forum in which it is made and who is making it.
OCR gets thousands of complaints a year. Almost all are lodged against a district, with a few against the state. But individuals and organizations are uniformly (or nearly so) the complainants. In structural terms, this would mean that a party outside of the federal funding agreement, which is the basis for Title VI liability, is asking the federal government to bring a district into compliance with Title VI. While students are certainly the beneficiaries of the federal money, the point of OCR's administrative process is not to secure remedies for individual complaints (although they may often get one). The point is to ensure future compliance by the district. This fact often frustrates complainants.
The instant case, in contrast, involves one federal funding recipient--the district--alleging claims against another--the state. This does not change the underlying substantive issue--discriminatory funding--but it does change the politics and resolution of that issue. In effect, the district is what one might call a "super plaintiff" in that it has actual legal standing in the contractual relationship between the federal government and the state and the district (although standing requirements are not predicates to OCR complaints). The district also has enhanced political standing. Unlike the single student who might ask OCR to terminate an entire school district or state's federal funding (if the district or state doesn't comply) simply because that student has been harmed, this complaint involves a district making a claim against its own system. Thus, it potentially could harm its own financial interests. In that respect, it may have more legitimacy and bargaining power in the eyes of OCR. On the other hand, the district is asking OCR to intervene in an internal state relationship, not simply the relationship between the federal government and the state or district, which raise federalism concerns. Fortunately, when discrimination is at issue, those federalism concerns are trumped.