Thursday, April 14, 2016

A Constitutional Analysis of New York's Education Budget by The Campaign for Educational Equity

This from The Campaign for Educational Equity:

The 2016-17 New York State budget has now been enacted by the legislature and signed into law by the governor. This budget increases state aid to education by approximately $1.35 billion, which will provide an average increase of 4% in foundation aid and a 5.9% increase in overall school aid for the state's school districts. Although Governor Andrew Cuomo has boasted that "this is the best [budget] plan the state has decades literally," in percentage terms the increase is basically the same as last year's. Moreover, this budget does not rival the 14% increase in foundation aid and 9% increase in overall education aid that the legislature enacted for 2007-08, immediately following the final court decision in the Campaign for Fiscal Equity (CFE) case.

Bright spots in the budget include a substantial commitment to converting struggling schools into community schools that provide important health, academic, and social supports to students and their families. The foundation-aid increase includes $100 million earmarked for school districts to spend on community schools, and, there is an additional categorical allocation of $75 million for expanding community schools in districts with struggling or persistently struggling schools. The budget also finally does away with the notorious "gap elimination adjustment" that, since 2010, has provided a rhetorical justification for the state to reduce educational spending below constitutionally required amounts. Plaintiffs in the pending NYSER v. State of New York litigation are continuing to press for a court ruling that would prohibit the state from ever reinstating the GEA or any similar device in the future.

This year's increase is well below the $2.4 billion in additional state aid that the Regents had recommended. And it is not sufficient to remedy the state's ongoing violation of the requirements of Article XI, §1 (the education article of the state constitution), and does not fulfill the clear directives of the state's highest court in the CFE litigation. The state's on-going noncompliance means that the fundamental educational resource deficiencies created by years of budget cuts, the pressures of additional unfunded state mandates, the escalation of health, pension, and other costs will continue to undermine the educational opportunities of vast numbers of the state's three million public school students. The state's ongoing underfunding of its constitutional requirement disproportionately affects students from low-income households and communities and students of color.[1]

The state also continues to maintain a "supermajority" tax cap that prohibits school districts outside of New York City from increasing local property tax rates by more than 2% or the last year's increase in the consumer price index, whichever is less, without the approval of 60% of the district's voters. This year the cap allowed increases of essentially 0%. The foundation formula is premised on an expectation that local property taxes will be funding a share of the school district's budget, in accordance with local property wealth. Since, in many cases, the property tax cap will prohibit the district from raising a fair share of needed revenues from local taxes, the shortfall between the available resources and the amounts needed to provide students the opportunity for a sound basic education will be even greater than is indicated by the continuing shortfall in state aid. It should be noted that an attempt to extend the property tax cap to New York City this year was defeated.

Major Violations of Constitutional Requirements

Among the major violations of constitutional requirements that the 2016-17 state budget perpetuates are (1) a continuing deferral of full funding of the amounts needed to meet constitutional sound basic education requirements; (2) a revival of the infamous "shares agreement" that was banned by the courts in CFE; and (3) a failure to provide full funding for universal prekindergarten services.

  1. Continued Deferral of Full Foundation Funding

In CFE v. State of New York, the Court of Appeals directed the state to create a system to provide full funding for the "actual cost" of ensuring all students the opportunity for a sound basic education by the 2010-11 school year. Six years past this deadline, the state continues to flout this requirement. In 2007, the legislature adopted a foundation funding formula that was based on the amount that the state education department had calculated to be the actual cost of a sound basic education. Although the state has never denied that the validity of this formula for calculating the amounts that are needed to provide the constitutionally required opportunity for a sound basic education, each year since 2009-10, the state has deferred the date for full implementation of the foundation funding amounts.

For 2016-17, even with the $1.35 billion in additional funding that the state appropriated, total foundation funding will still be approximately $4 billion below the amount the state legislature itself had determined to be necessary to provide all students the opportunity for a sound basic education


Reversion to the Infamous "Shares Agreement"

In its CFE decisions, the Court of Appeals repeatedly specified that the state's funding system must "align funding with need" (CFE II, 100 N.Y. 2d. at 929), that resources must be "calibrated to student need" (id. at 929), and that the amount of state aid provided must "bear a perceptible relation to the needs of City students" (Id. at 930; CFE III, 8 N.Y.3d at 21 (2006)). Instead of adhering to the foundation formula, the state has reverted to the infamous "three men in the room" decision-making process in which the governor and the two legislative leaders determine how much funding each school district will receive behind closed doors and on the basis of political deals, rather than student need. 

Evidence submitted in the CFE trial showed that, for almost all of the decade preceding the trial, New York City had received precisely 38.86% of the annual increase in state aid under a political "shares agreement." Supreme Court Justice Leland DeGrasse denounced this arrangement, stating that it reflected "an array of manipulations" that did not relate to actual student needs (see CFE v. State of New York 187 Misc. 2d 1, 89 (S. Ct., N.Y. Co, 2001)). Significantly, for the past few years, and now again for 2016-17, New York City's share of the state aid increase will be the same 38.86% or the "fixed percentage share" that the court held to be blatantly unconstitutional in CFE.

  1. Failure to Fund Prekindergarten Services Appropriately

Two years ago, the governor and the legislature committed to provide access to universal high-quality full-day pre-K services to all four year olds in New York State within a five-year period. Pre-K is one of the specific services that the CFE court deemed to be constitutionally essential, at least for high-need students. The governor proclaimed that the state would provide school districts sufficient funds for this initiative as soon as school districts were ready to expand their programs.[2] However, for 2016-17, the third year of the proposed five-year implementation period, the state again failed to keep that pledge. 

For the 2014-15 school year, the legislature appropriated $300 million for New York City and only $40 million for all other school districts in the state. Last year, and now for this year, the state appropriated only those same amounts. This means that students in many upstate districts still cannot be served. Estimates of the number of currently unserved children run as high as 100,000.

The legislature did enact a new $22 million competitive grant program for preschool for three year olds, which will expand opportunities for a small number of these younger students. The manner in which this funding has been appropriated, however, further complicates the already complex and fragmented funding mechanisms that New York State now utilizes for pre-K: there are now seven separate programs through which pre-K is funded, many of which are competitive grants that school districts must research and navigate in order to obtain funding for their students. 

Necessary State Action for Achieving Constitutional Compliance

The Campaign for Educational Equity (CEE) will continue to press the governor, the legislature, and the Regents to make significant advances toward constitutional compliance in each of these areas over the coming months, and we will make concrete policy recommendations to help them to do so.

All of these constitutional deficiencies are also being challenged by the plaintiffs in the NYSER litigation that is now pending before the New York State Supreme Court. In that case, the plaintiffs are claiming, based on research and recommendations from CEE, that the governor, the legislature, and the Regents must take the following actions to achieve constitutional compliance: 

  • Identify the essential resources, services, and supports that must be available to all students to comply with the constitution and to meet statutory and regulatory requirements
  • Reduce costs without violating children's constitutional rights by eliminating unnecessary mandates, revamping ineffective requirements, and providing school districts clear guidance on how to maximize cost efficiency and costeffectiveness while safeguarding constitutional educational services;
  • Develop and implement an up-to-date methodology to determine the actual costs of providing all students with the essential resources for a sound basic education in a cost-effective manner that properly weighs student needs and concentration-of-poverty factors;
  • Revise the state funding formulas to ensure that all schools receive sufficient resources; and
  • Create state and local accountability mechanisms for sound basic education and ensure enforcement by the state education department and other entities and the means and capacity to carry out those responsibilities. 

April 14, 2016 in School Funding | Permalink | Comments (0)

Tuesday, April 12, 2016

A Fool's Errand: Reforming Discipline without Also Addressing School Quality

When districts attempt to reduce suspensions and expulsions, the message many teachers hear is "no more suspensions."  Whether that it is the unstated and implied policy in some districts is unclear.  I heard from a reliable source that this was the unwritten but stated policy a few years ago in a major district that had come under investigation by the Office for Civil Rights (given my inability to confirm this, I will keep the district's name to myself). The more likely and prevalent explanation, however, is that school leaders and teachers are missing the all-important aspect of implementing new discipline policies.  No doubt, severely reducing suspensions and expulsions is the goal of discipline reform, but that goal cannot be appropriately and responsibly achieved without changing teachers' and principals' orientation toward discipline.  This, of course, does not happen overnight and does not happen simply by stating a new goal.  It requires resources, training, practice, and a cultural shift.  In the absence of those changes, teachers think they are simply being told to tolerate egregious behavior.  And maybe they are.  Take this story in the NY Post this week:

Under pressure from Obama educrats, public school districts are no longer suspending even violent students; but now, under pressure from Black Lives Matter, they are suspending teachers who complain about not suspending bad kids.

In St. Paul, Minn., a high school teacher was put on administrative leave last month after Black Lives Matter threatened to shut down the school because the teacher complained about lenient discipline policies that have led to a string of assaults on fellow teachers.

Last month, two students at Como Park Senior High School punched and body slammed a business teacher unconscious, opening a head wound that required staples. And earlier in the year, another student choked a science teacher into a partial coma that left him hospitalized for several days.

In both cases, the teachers were white and the students black.

Theo Olson, a teacher at the school complained on Facebook about new district policies that fail to punish kids for fighting and drug-dealing. Like dozens of cities across the country — including New York — St. Paul adopted the policies in compliance with new discipline guidelines issued by the Obama administration. The Education Department has threatened school districts with lawsuits and funding cuts wherever if finds racial “disparities” in suspensions and expulsions, arguing such disparities have created a “school-to-prison pipeline” for African-Americans children. The agency claims such disparities are the product of racism in schools.

The danger in these conversations is pitting students and teachers against one another. If it is the case that schools are not supporting and training teachers in the transition to new discipline systems, then teachers become victims, of a sort, as well.  I have little doubt that under-supported discipline systems are the norm in many places where the education system is abysmal as a general matter. Take Philadelphia, for instance.  The school district has been woefully underfunded by the state for years, is bleeding students to charter schools, suffers from a problematic reimbursement system by which it must send large amounts of money to charters, and was on the brink of collapse during the recession when the most basic of staff and resources were eliminated.  More recently, the entire state's education system faced shut downs because the state could not/would not pass a budget.  Under these circumstances, one wonders how much serious attention and how many resources are devoted to training school staff on discipline and providing positive behavioral supports for students and teachers. In the absence of these resources, it is no surprise that Philadelphia Teachers' Union was livid about the district's insistence that suspension and expulsion rates drop precipitously.

As the foregoing suggests, the missing link in districts' strategies and teachers' perception is school quality itself. Social science increasingly demonstrates that discipline rates are a function of school quality and vice versa.  In other words, low quality educational opportunities lead to discipline problems, and discipline problems lead to low quality education. Thus, one cannot be fixed without the other.  Equally important, discipline systems matter for more than just the "misbehaving student."  They matter for "innocent bystanders."  When schools fail to invest in pedagogically sound discipline practices, they harm all students, not just the so-called bad apples. And by harm, I mean reduced educational outcomes and achievement.  In this respect, the solution to our discipline problems is the solution to our education quality challenges.  I flesh out a full explanation of this social science and argument here.



April 12, 2016 in Discipline, School Funding | Permalink | Comments (0)

Tuesday, March 29, 2016

Education Law Center Asks State to Comply with Law and Address Lead in Newark Schools


The Education Law Center issued this press release yesterday:

Education Law Center today sent a request to Commissioner of Education David Hespe and Schools Development Authority (SDA) CEO Charles McKenna for their respective agencies to immediately assess the elevated lead levels found in dozens of schools in the State-operated Newark Public Schools (NPS) and to fund and undertake any emergent repair projects to water supply systems necessary to eliminate this hazardous condition.

The ELC letter underscores the elevated levels of lead recently found in drinking water in NPS schools and the fact that this constitutes “a condition that, if not corrected on an expedited basis, would render a building or facility so potentially injurious or hazardous that it causes an imminent peril to the health and safety of students or staff.”

As the letter notes, the NJ Department of Education (DOE) and the SDA are mandated by NJ Supreme Court rulings in the Abbott v. Burke litigation and the state school construction law to fund, undertake and complete all repair projects to school buildings in NPS when faced with conditions that pose an imminent threat to health and safety. Put simply, DOE and SDA have a constitutional and statutory obligation to act to remedy any potential harm to the health and safety of school children discovered in NPS facilities.

ELC’s letter requests that DOE and SDA immediately initiate a Potential Emergent Projects (PEP) program to assess the extent of the lead contamination problem in all Newark schools, the building repairs that are needed, and the cost of such repairs, and to establish a schedule for undertaking and completing all repairs to alleviate the problem.

“Given the serious harm from ingesting lead, the Christie Administration must act, and act now, to protect Newark school children from exposure,” said David Sciarra, ELC Executive Director. “The DOE and SDA are legally obligated to fund and undertake all building repairs, on an emergent basis, to ensure the health and well-being of children attending NPS schools.”

ELC has also notified State District Superintendent Christopher Cerf so that NPS officials can facilitate the SDA and DOE effort. ELC also informed Mayor Ras Baraka and State Legislators representing Newark so that they can assist in holding SDA and DOE accountable for meeting their obligations to NPS children.

Press Contact:

Sharon Krengel
Policy and Outreach Director
973-624-1815, x 24

March 29, 2016 in School Funding | Permalink | Comments (0)

Friday, March 25, 2016

The School Facilities Funding Gap

The 21st Century Schools Fund, U.S. Green Building Council, and the National Council on School Facilities have released their 2016 report on the state of the facilities in our nation's public schools.  The report finds that we should be spending $145 Billion Per Year to meet the maintenance and expansion needs of our schools.
Using industry standards adapted to K–12 public school facilities, we estimate that the nation should be spending about $145 billion per year to maintain, operate, and renew facilities so that they provide healthy and safe 21st century learning environments for all children. Applying a 3 percent of current replacement value (CRV) standard for M&O, districts need to spend $58 billion annually to maintain and operate the 2014 inventory of public school facilities so they are clean and in good working order. On the capital side, the nation should be spending an estimated $77 billion per year (4 percent of CRV) to regularly upgrade existing facilities’ systems, components, fixtures, equipment, and finishes as they reach the end of their anticipated life expectancy; systematically reduce the backlog of deferred maintenance that has accumulated; and alter existing facilities to respond to changing educational requirements. In addition, projections suggest at least another $10 billion per year is needed for new construction to accommodate growing enrollments over the coming decade. That brings the total annual facilities requirements to $145 billion per year.

Unfortunately, states are currently spending $46 billion less per year than these projected requirements.

The nation’s current system of facilities funding leaves school districts unprepared to provide adequate and equitable school facilities. Comparing historic spending against building industry and best-practice standards for responsible facilities stewardship, we estimate that national spending falls short by about $8 billion for M&O and $38 billion for capital construction. In total, the nation is underspending on school facilities by $46 billion — an annual shortfall of 32 percent. Gaps vary by state and local district, depending on investments by local communities and the structure of school facilities funding at the state level. Nevertheless, investment levels in all states but three will not meet the standards.

March 25, 2016 in School Funding | Permalink | Comments (0)

Friday, March 18, 2016

Alabama Fails to Provide Fair Funding to Its Schools

The Southern Poverty Law Center issued this press release earlier this week:

Alabama's funding of public education gets mostly low marks in the recently released fifth edition of Is School Funding Fair? A National Report Card. The state's unfair distribution of funds and failure to fund at a level sufficient to support its public schools earns Alabama poor marks when compared to other states in its region, and beyond.

"If Alabama wants to ensure every child receives a quality education, it must adequately fund its schools," said Rhonda Brownstein, legal director of the Southern Poverty Law Center. "This report card confirms findings from an earlier report commissioned by the Alabama State Department of Education that clearly shows the state is failing its students -- particularly its most vulnerable students living in impoverished communities."

The National Report Card (NRC), issued annually by the Education Law Center (ELC) and Rutgers University, evaluates states on four separate, but interrelated, "fairness indicators" -- funding distribution, funding level, state fiscal "effort," and public school "coverage." The NRC provides the most in-depth analysis to date of state public education finance and school funding fairness.

Alabama receives an F in the important funding distribution indicator, which measures the extent to which a state's funding system is structured to recognize the additional resources required for students in a setting of concentrated student poverty. In Alabama, the pattern is actually regressive with higher poverty districts receiving, on average, only about 90 cents for each dollar their more well-to-do counterparts receive. Such a skewed funding system thwarts efforts to improve achievement and narrow achievement gaps.

Also, the state's overall funding level is well below average, ranking 38 out of 49, even though the National Report Card (NRC) adjusts for regional wages, economies of scale, and other factors. Alabama's average state and local revenue per pupil in 2013 was $7,670, over two thousand dollars below the national average of $9,766 per pupil.

On a brighter note, Alabama receives a B on its effort to invest in its schools. Effort is based on the percentage of the state's Gross Domestic Product (GDP) allocated to education. The state's funding system devotes a good share of its relatively low economic capacity to its public schools. Nonetheless, the state's effort dropped 14% after the 2008 great recession set in and has not recovered.

Finally, Alabama is below average on "coverage," which examines the share of school-aged children who attend public schools and compares the median household income of those children with the income levels of families who do not use public schools. While about 13% of Alabama school children attend nonpublic schools, the income disparity between public and nonpublic school households is high, with nonpublic households earning more than one and a half times the earnings of public school households, on average.

"This report provides policymakers, legislators, and concerned citizens with the information they need to assess their state's commitment to fair school funding and to advocate for improvements in the many states where that is absolutely necessary," said Dr. Bruce Baker of Rutgers University Graduate School of Education, a co-author of the National Report Card.

"The State's continuing failure to fairly fund public education deprives Alabama students of the teachers, support staff and other resources necessary for a high quality education," said David G. Sciarra, Executive Director of the Education Law Center and a co-author of the National Report Card. "We hope the NRC results will serve as a wake-up call for lawmakers to put school funding reform at the top of the education agenda."

First issued in 2010, the National Report Card is built on the principle that predictable, stable and equitable state systems of school funding are the essential precondition for the delivery of a quality educational opportunity. Without this foundation, efforts to improve the nation's schools will be less productive and unsustainable. To improve on the condition and performance of schools, states need to implement systems that provide sufficient funding that is fairly distributed to account for the needs of students, which are higher for low-income students, English language learners, and students with disabilities.

Is School Funding Fair? A National Report Card is coauthored by Dr. Bruce Baker of the Rutgers Graduate School of Education; David Sciarra, Esq., Executive Director of the Education Law Center (ELC); Dr. Danielle Farrie, ELC Research Director; and Theresa Luhm, Esq., ELC Managing Director. Please visit for the complete report.


March 18, 2016 in School Funding | Permalink | Comments (0)

Thursday, March 17, 2016

Education Law Center Releases National School Funding Fairness Report for 2016

Yesterday, the Education Law Center released the fifth edition of its national school funding fairness analysis (authored by Bruce Baker, Danielle Farrie, Theresa Luhm and David G. Sciarra).  Two states jumped out at me in this report: North Carolina and Nevada.  Last year, Nevada's unequal distribution of funding was eye-popping.  Districts serving high need student populations were funded at less than half the level of districts serving wealthier students.  This year, Nevada is still doing a poor job, ranking last in the nation in funding distribution, but significantly decreased the disparity.  It now funds high need districts at 71% of their counterparts.  North Carolina, likewise, was atrocious on several measures and still is this year on some, but the funding distribution in the state is looking much better.  The state is now funding high need districts at 112% of low-poverty districts--not an excellent number but still a progressive one.  

Maybe the most distressing data to me is the continuing low levels of fiscal effort being exerted to fund education.  Based on the last year studied, only seven states increased their fiscal effort over the prior year (from 2012 to 2013).  Only four state were exerting more effort than they were at the beginning of the recession.  In other words, states are still in a hangover from the Recession.  Tax revenues rebounded to pre-recession levels about three or four years ago, but states have not replenished education budgets.  As I argue in Averting Educational Crises, the length and depth of this continuing hangover threatens the quality of education an entire generation of students will receive.  Courts failure to intervene also threatens to undermine the constitutional right to education, which will jeopardize education for future generations as well.

The funding fairness report offers this summary of major findings:

  • School funding levels continue to be characterized by wide disparities among states, ranging from a high of $17,331 per pupil in Alaska to a low of $5,746 in Idaho.
  • Many of the lowest funded states, such as Arizona, California, Idaho, Nevada, North Carolina and Texas, allocate a very low percentage of their states’ economic capacity to fund public education.  
  • Fourteen states, including Nevada, North Dakota and Illinois, are regressive, providing less funding to school districts with higher concentrations of low‐income students.
  • Only a handful of states ‐ Delaware, Massachusetts, Minnesota, New Jersey and Ohio ‐ have generally high funding levels and also provide significantly more funding to districts where student poverty is highest.  
  • Low rankings on school funding fairness correlate to poor state performance on key resource indicators, including less access to early childhood education, non‐ competitive wages for teachers, and higher teacher‐to‐pupil ratios.   

Get the full report here.  

This year the authors also issued a supplementary report that dug beneath the state level figures and identified the nation's most disadvantaged districts.  That report includes these major findings:

  • Almost 1.5 million children are educated in 47 disadvantaged school districts across 16 states.
  • Reading and Allentown, PA face the nation’s most extreme disadvantage,  with nearly 2.5 times area poverty rates and less than 80 percent of the average state and local revenue per pupil.
  • Chicago and Philadelphia are, year after year, the two most fiscally disadvantaged large urban districts in the nation.
  • Many of the most disadvantaged districts are in states with regressive funding systems, such as IL, PA and TX, but they also exist in states with both flat funding systems (CA) and more progressive funding systems, such as CO, MA and NC.

Get that report here.

March 17, 2016 in School Funding | Permalink | Comments (0)

Monday, March 14, 2016

Derek Black On Averting Educational Crisis

Blog co-editor Derek Black (South Carolina) has posted an article on ssrn, Averting Educational Crisis (Washington Law Review, forthcoming). In the article, Prof. Black argues that judges' reluctance to intervene in education disputes, during and after the recession, has devalued the constitutional right to education around the country. From the abstract:

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.

March 14, 2016 in Scholarship, School Funding | Permalink | Comments (0)

Washington Hasn't Implemented the Constitutional Mandate for Educational Adequacy, But Has No Problem Finding a Charter School Fix

In 2012, the Washington Supreme Court declared the state's school funding system constitutionally inadequate.  Since then, the state has be slow to act--slow enough that the Court imposed heft daily fines this summers until the state implements a plan. A week and a half ago, the state finally passed legislation, although some point out that it is no more than a promise to come up with a solution in the next legislation session.  The real irony, however, came late last week when the state passed a new charter school bill.  

The past September, the Washington Supreme Court struck down the state charter law, reasoning that the statute violated the constitutional mandate for a “a general and uniform system of public schools” and that it diverted funds that the constitution reserves for common schools to other schools.  In other words, the state was directing common school funds to schools that are not common.  While the state has drug its feet for four years on a fix for traditional public schools, it only took six months to pass a fix for charter schools--a fix that had already failed once.  Daarel Burnette at Edweek reports,

A bill championed by advocates to revive the [charter school] law was passed by the Republican-controlled Senate in January, but had stalled in the House education committee before Rep. Larry Springer, a Democrat, used a procedural maneuver to resuscitate the bill and bring it to the House floor for a vote on Wednesday.

Democrats control the House, but barely. And the effort to restore the law has met resistance from several groups, including the state's teachers' unions.

Continue reading

March 14, 2016 in Charters and Vouchers, School Funding | Permalink | Comments (0)

Thursday, March 10, 2016

Disdainful of Its Constitutional Duty to Deliver Equal and Adequate Education, Kansas Lawmakers Flirt with Autocratic Rule

Yesterday, LaJuana Davis posted on proposed legislation in Kansas that would expand the grounds for impeaching justices of the Kansas Supreme Court.  The new ground for impeachment would be usurping the power of the legislature or executive.  Such a threat to the Kansas Supreme Court is not new and comes in response to the court's firm stance on the state's obligations under the education clause of the Kansas constitution.  Last year, the legislature threatened to change the judicial appointment process and shrink the judiciary's budget, which got national attention as a threat to separation of powers.

Last year's legislative efforts were  arguably within the bounds of acceptable policy, as the judiciary's budget does fall within the legislature's jurisdiction, as do some procedures for appointment.  It is legislative intent, more than anything, that raises the biggest separation of powers concern.  To add this new ground for impeachment, however, is both a practical and ideological subversion of the rule of law and an independent judiciary.

Continue reading

March 10, 2016 in School Funding | Permalink | Comments (0)

Friday, March 4, 2016

New York City Elementary Schools: A Tale of Two Cities

New York Appleseed has released a new report New York City Elementary Schools: A Tale of Two Cities. The report finds that predominantly poor and minority elementary schools treated  far differently than predominantly middle-income white schools. "This is particularly true when comparing the level of teacher experience and qualifications in each location." Cassie Schwerner, a member of the board of directors for New York Appleseed,  says the report "completes a devastating body of evidence condemning our failure to prioritize reducing school segregation in New York City.”  The report's major findings are as follows:

Continue reading

March 4, 2016 in Racial Integration and Diversity, School Funding | Permalink | Comments (0)

Thursday, March 3, 2016

Washington Finally Responds to Court Order to Remedy Inadequate School Fund; State Superintendent Believes It Is Window-dressing

Earlier this week, the state of Washington finally took its first step to implement the school funding remedy first mandated in McCleary v. Washington in 2012.  According to local news:

[t]he measure would establish a task force to find the state dollars needed to replace some local levy spending and instructs the 2017 Legislature to finish the work. It also instructs the task force to make recommendations on teacher pay and asks for clarification on how local levies are being used today. The measure directs the task force to determine whether more legislation is needed to ensure all-day kindergarten and lower K-3 class sizes are possible in every elementary school in the state.

As discussed here over the past couple of years, the Washington Supreme Court has been steadfast in demanding that the state develop a concrete and long term plan to address inadequate funding in schools, but the legislature has repeatedly ignored the court.  This past summer, the court, growing tired of having its orders ignored, issued a new one holding the state in contempt and fining it $100,000 a day until it acted.

Governor Jay Inslee believes that this new legislation will satisfy the court for the time being, as it shows "a significant recognition by the Legislature that they need to act and have a full intention to act."  He added, "This wasn't easy. The Legislators worked hard on this for months. . .The next step before us is arguably the most complex and I'm confident the Legislature is up to the task."

Others, including the state superintendent of education Rand Dorn, are far more skeptical.  He says the bill is just an attempt to "punt" the issue further down the road.  On its face, the bill suggests the legislature is doing something, but in reality, it really does no more than say the next legislature should do something.  In the meantime, it does nothing to help currently underfunded and unequal schools--the very problem that generated the litigation to begin with.  Dorn says he does not "think the court will buy it."


March 3, 2016 in School Funding | Permalink | Comments (0)

Wednesday, March 2, 2016

Pennsylvania Appellate Court Affirms School Districts' Authority to Raise Revenue by Reassessing Property Values

In 2014, plaintiffs sued Upper Merion Area School District in Pennsylvania, alleging that the district's petition to have certain properties' values reassessed violated the state constitution's uniformity clause.  The uniformity clause provides that “All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” Pa. Const. art. VIII, § 1. State statutes, interestingly, permit school districts to appeal property value assessments in the same way that a homeowner does.  Relying on that statutory provision, Upper Merion Area School District had challenged the value of a few apartment complexities and succeeded.
In Valley Forge Towers Apartments N, LP v. Upper Merion Area Sch. Dist., 124 A.3d 363 (2015), the Pennsylvania Commonwealth Court--Pennyslvania's intermediate appellate court--held that the school district had  a rational basis for appealing these particular assessments: "'sufficient increased revenue to justify the costs of appeals. Judicious use of resources to legally increase revenue is a legitimate governmental purpose.'”  Thus, the individual appeals were not discriminatory and did not violate the uniformity clause.
The decision is of relatively little precedential value outside of this narrow context, but does clear indicate the authority of school districts to raise additional revenues by ensuring that the local real estate tax assessor is not giving unwarranted breaks to new residential developers.

March 2, 2016 in School Funding | Permalink | Comments (0)

Monday, February 22, 2016

Mississippi's Education Chair Introduces Bill That Appears to Limit Teachers' Free Speech; Why?

Mississippi's chairman of the House Committee on Education, John Moore, has renewed his bill to place limits on teacher's activities while at school.  Some call the bill a directive for teachers to "shut up" or to "muzzle teachers." Given the larger context of education budget battles over the past year or two in the state and teachers' role in it, the bill may be aimed at tamping down political activity among teachers while at school. A local reporter offers this summary of the bill:

[The bill levels] $10,000 fines and revok[es] teacher licenses. But without any provision for who can file a complaint, or to whom, it appears the education chairman's bill is reactionary and not well thought out. Snowden's bill, while similar, is not as toxic and is more measured. It only has fines of $100 for the first offense and $250 for each further offense, to be investigated by the secretary of state's office. Complaints can be filed by "any state or federal oversight, enforcement or regulatory governmental entity," which includes those poor, harassed legislators.

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February 22, 2016 in First Amendment, School Funding, Teachers | Permalink | Comments (0)

School Funding Lawsuit in Tennessee Moves Forward, But Efforts to Enlarge Coalition Slow

In the past year, two different school funding lawsuits have been filed against the state of Tennessee--one out of Memphis and another in Nashville.  Last week, the trial court in the Nashville denied the state's motion to dismiss, permitting the lawsuit to move forward. Interestingly, the judge denied plaintiffs' class-certification request.  Without an opinion, it is hard to infer what exactly is going on.  But the denial highlights several important issues.

Given the relatively small number of districts in the state, class-certification is not necessary as a general matter. From that perspective, the denial is not remarkable.  In most school funding lawsuits, cases proceed with interested districts affirmatively agreeing to join a coalition to bring the suit.  In Georgia, for instance, a consortium spent a year or two simply organizing school districts to come together to bring a lawsuit.  By the time they filed suit, they had garnered a substantial portion of Georgia's districts as coalition members.  In Tennessee, however, only five districts--all located in Nashville's metropolitan area--joined together to bring this instant suit in Hamilton County.  Yet, there is no reason to believe that the issues they raise are related solely to their region.  Thus, the narrow coalition is somewhat aberrational.  Perhaps, plaintiffs thought class certification could do the heavily lifting of organization for them.  With a "forced" or de facto coalition through certification, actively recruiting others will be crucial.  

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February 22, 2016 in School Funding | Permalink | Comments (0)

Wednesday, February 17, 2016

Vouchers Won't Solve Nevada's Severely Underfunded Schools, Nor Its Teacher Shortage Crisis

The national shortage of teachers reported by the New York Times last fall has only gotten worse.  Based on recent news reports, Clark County, Nevada--the nation's fifth largest district--may be suffering the worst.  Ironically, at the same time that the schools are suffering for money and teachers, the state is dumping money into vouchers. David Sciarra offers this critique in the Las Vegas Review-Journal:

Aggressive [teacher] recruitment has had some success. Yet low pay, poor working conditions and rising enrollments make it difficult to attract and retain effective teachers. Thousands of students are in classrooms lacking a properly licensed teacher.

The teacher shortage is just one of the challenges the district faces as it struggles to provide quality education to 320,000 students.

It's no secret that many Clark County schools are over-capacity. Buildings need repair and system upgrades. Bilingual and special education services are lacking. Quality preschool, extended learning time and help for at-risk students are in short supply.

It's also no secret that the way Nevada funds public education is outmoded and inadequate. In the Education Law Center's "National Report Card, Is School Funding Fair?" Nevada consistently ranks in the bottom 10 states on funding level and receives an F for failing to fund the needs of poor children. Nevada also gets an F on investing in education, despite an improving economy.

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February 17, 2016 in Charters and Vouchers, School Funding | Permalink | Comments (0)

Tuesday, February 16, 2016

Education Inequality Is the Key to It All, According to Harvard Professors

Harvard brought together various professors from its different colleges and departments to talk about their research on social and economic inequality.  The conclusion spanning the various disciplines was that educational inequality is at the center of the problem of inequality in general.  Ronald Ferguson, for instance, explained:

Education may be the key to solving broader American inequality, but we have to solve educational inequality first. Ferguson says there is progress being made, there are encouraging examples to emulate, that an early start is critical, and that a lot of hard work lies ahead. But he also says, "There's nothing more important we can do."

"The position of U.S. black students is truly alarming," wrote Fryer, the Henry Lee Professor of Economics, who used the OECD rankings as a metaphor for minority standing educationally. "If they were to be considered a country, they would rank just below Mexico in last place."

He and others point out that enormous strides in closing education gaps occurred between 1970 and 1990, but then the nation hit a plateau and has been stuck ever since.  The effects of this plateau reverberate in various life opportunities.  The explanation for the plateau is, in large part, the nation's backtracking on segregation and inequality.  The trend, however, can be reversed. Roland Fryer, an economist at Harvard, 

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February 16, 2016 in Equity in education, Racial Integration and Diversity, School Funding | Permalink | Comments (0)

Friday, February 12, 2016

Kansas Supreme Court Distinguishes Itself by Once Again Declaring the State's Funding System Unconstitutional

Yesterday, the Kansas Supreme Court in Gannon v. Kansas once again struck down the state's school funding practices.  The Kansas Supreme Court has declared the state's various permutations of a school funding formulas unconstitutional so many times in the past five or six years that I am not even going to attempt to count them up here.  It suffices to say that the Kansas Supreme Court has held strong in the face of a recalcitrant legislature and outright hostile government, even during the darkest hours of the recession.  The legislative branch, however, dismayed by orders to comply with the constitution, has gone so far as to threaten the judiciary itself, indicating that it would reduce its budget and change the appointment process for judges.  Many, including the Education Law Center and the New York Times, saw those as direct attempts to scare the Supreme Court away from school funding issues and to threaten the most basic principles of separation of powers.  The legislature's gamble, moreover, stood a good chance of success.  School funding historians remember all to well the removal by popular vote of supreme court justices in Alabama and Ohio after they ruled in favor of plaintiffs in their respective states.

Surely, the Kansas Supreme Court knows these and other stories and did not take its own legislature's threat as idle.  That is what makes this decision so uniquely important, not just to Kansas, but to the future of school finance.  The Kansas Supreme Court's willingness to stand up, time and time again, for the constitution under such extreme circumstances may only be matched by the New Jersey Supreme Court, which  for more than three decades has called its legislature to action.  Yet, Kansas Supreme Court may be even more courageous, as New Jersey's politics are far more favorable.  In a few weeks, I will be posting a law review article that digs deeper into the troubling national trends in school finance litigation over the past decade.  For now, an excerpt from the Kansas Supreme Court is in order:


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February 12, 2016 in School Funding | Permalink | Comments (0)

Wednesday, February 10, 2016

Valuing Public Education: 50 State Report Card

The Network for Public Education (NPE) has published a report called Valuing Public Education: 50 State Report Card. From the introduction:

The Report Card looks at whether a state's current policies and laws---in six key areas---make public schools stronger or undermine them. This approach stands in opposition to reports released by conservative political organizations like the American Legislative Exchange Council (ALEC), which generally applaud states for privatizing public education.

The Report Card measures the policies of each State and the District of Columbia on:

  • School Finance 
  • Spending Taxpayer Resources Wisely 
  • Professionalization of Teaching 
  • No High Stakes Testing 
  • Resistance to Privatization 
  • Student Chance of Success 

The school finance portion of the report relies on information in "Is School Funding Fair? A National Report Card," by Bruce Baker, David Sciarra, and Danielle Farrie. 

February 10, 2016 in School Funding, Studies and Reports | Permalink | Comments (0)

Tuesday, February 2, 2016

The Deceptive Promise of Vergara: Why Teacher Tenure Lawsuits Will Not Improve Student Achievement

Michele Aronson's student note, The Deceptive Promise of Vergara: Why Teacher Tenure Lawsuits Will Not Improve Student Achievement, 37 Cardozo L. Rev. 393, 394-96 (2015), is available on westlaw.  She situations Vergara within the historical context of courts as a vehicle for carrying out social reform.  Her introduction offers this summary:
In the recent case of Vergara v. State, commonly referred to as Vergara v. California, Judge Treu of the Los Angeles County Superior Court used the court's power to effect a new type of social reform: he became the first judge in any court in the United States to strike down a state's teacher tenure and dismissal laws. He reasoned that California's laws made it impossible to remove ineffective teachers from the classroom. Judge Treu concluded that California's teacher tenure and dismissal statutes “impose a real and appreciable impact on students' fundamental right to equality of education and that they impose a disproportionate burden on poor and minority students.” Vergara is a potentially landmark case, although its ruling is stayed pending appeal. Plaintiffs in New York have filed a similar lawsuit, and commentators expect to see more teacher tenure lawsuits in other states and cities.

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February 2, 2016 in School Funding, Teachers | Permalink | Comments (0)

Monday, January 25, 2016

New York Plaintiffs Bring Novel Claim, Alleging State Must Step in to Stop a School Board's Abuses

Plaintiffs in East Ramapo, New York, have brought a unique claim against New York's Education Department.  They allege that it is liable for the local school board's mismanagement of the school district.  They argue that the school board is being driven by board members who send their children to private schools and do not have the public schools' interests at heart.  Plaintiffs rely on a number of recent third-party investigations and reports that document the school board's "fiscal mismanagement, misuse of funding and resources, and favoritism toward private school students," which have caused an inadequate and unqualified supply of teachers, denials of basic services for special needs students and English Language Learners, denials of access to music and art, and a shortage of equipment and supplies.  This mismanagement, they argue, deprives students' of the constitutional right to a sound basic education in the state.

This claim is analogous to a theory I forwarded here, arguing that local student assignment practices deprived students of their constitutional education rights and warranted legal action again the district.  The point was that many of the legal duties imposed on the state in school finance litigation also extend to the local district, assuming that the local district's actions are the cause of an educational deprivation.  The twist this new lawsuit includes is that, because the ultimate duty to ensure a constitutional education rests with the state, it is still the state that is obligated to step in and rectify local violations.  Thus, rather than asking a court to force the local board to rectify the violations, it asks that the court order to the state to intervene in the district.  This is a case to watch.  It is being litigated by the Education Law Center and O’Melveny & Myers, so it is sure to be well-handled.

January 25, 2016 in School Funding | Permalink | Comments (0)