Tuesday, April 28, 2015
On April 21, 2015, the trial court in Pennsylvania, where petitioners filed a lawsuit claiming the state is failing to adequately and equitably fund its public schools, interpreted prior state supreme court precedent as eliminating the courts' role in such a case.
William Penn School District, et al., v. Department of Education, et al., was filed last November by six school districts, seven parents, the Pennsylvania Association of Rural and Small Schools (PARSS) and the NAACP Pennsylvania State Conference. The lawsuit alleges that legislative leaders, state education officials, and the Governor violated their constitutional obligation to provide a system of public education that gives all children in Pennsylvania the opportunity to meet state-imposed academic standards and be prepared for life in today's world.
Friday, April 24, 2015
Yesterday, Nora Gordon focused on one of the more technical aspects of the pending Senate bill to reauthorize the Elementary and Secondary Education Act: the supplement not supplant standard. The standard requires that Title I funds for low income students only be used to supplement the resources that state and local entities were already providing those students, not supplant them. Gordon summarized the new revisions and her sense of their importance:
The larger legacy of the Every Child Achieves Act may well be how it cleans up supplement not supplant, a little discussed and often misunderstood fiscal rule with a big impact on how schools actually spend the $14 billion of NCLB Title I funds. The proposed legislation makes two important changes: (1) it requires districts to show they are distributing their state and local funds across schools without regard to the federal funds that each school receives; and (2) it increases local autonomy over how to spend Title I funds.
The problem she says is that:
Under current law, those Title I schools that do not operate schoolwide programs must demonstrate that every single thing they buy with Title I funds helps only the neediest students, and would not be purchased with other funds absent the federal aid. In my research, I’ve found this rule often has the unintended consequence of preventing districts from spending money on the things that might help those students most, pushing schools to work around the edges of their central instructional mission. They buy “interventionists” instead of teachers, or “supplemental” curricular materials rather than “core” ones, and are discouraged from investing Title I funds in technology.
Gordon is correct that the supplement not supplant has been a disaster. As I wrote in The Congressional Failure to Enforce Equal Protection Through the Elementary and Secondary Education Act, 90 B.U. L. Rev. 313 (2010),
Although well meaning, the prohibition on supplanting has not met its goal. In fact, in a recent report, the GAO recommended eliminating the supplement-not-supplant standard altogether. The GAO concluded that the standard has become almost impossible to enforce. Enforcing the standard requires too much speculation about what a school district would have spent on education and also requires extremely detailed tracking of spending in thousands of school districts. In short, the prohibition on supplanting funds relies on unreliable projections and unusually labor-intensive work. Possibly for these reasons, the Department of Education has effectively stopped attempting to enforce the standard, treating it as a non-priority. The standard, however, remains the law and a measure that well-intentioned schools may expend effort attempting to meet.
Wednesday, April 22, 2015
After a relative long hiatus, the Education Trust has issued a new comprehensive school funding study. Its 2006 study drew criticism, in part, for its simplicity. The new report adds more nuance to the analysis. It finds that:
- Nationally, the highest poverty school districts receive about 10 percent less per student in state and local funding than the lowest poverty districts.
- School districts serving the most students of color nationwide receive roughly 15 percent less per student in state and local funding than those serving the fewest.
- There is a great deal of variation between states when it comes to funding equity: While some states provide more funding to their highest poverty districts and to districts serving the most students of color, others provide substantially less.
Tuesday, April 21, 2015
Replicating Inequality and Segregation through Test Scores: What the Opt-Out and Opt-In Movements Fail to Recognize
Initial reports indicate that 150,000 students or so refused to take New York's state standardized test, as part of the growing op-out movement. This, of course, incensed the state department of education. First, compliance with No Child Left Behind requires that 95% of students take the test. Second, "Test refusal is a mistake because it eliminates important information about how our kids are doing. Those who call for opting out really want New York to opt out of information that can help parents and teachers understand how well their students are doing. We can't go back to ignoring the needs of our children," said Jonathan Burman, a state education department spokesman. But the response of Nicole Brisbane, state director at Democrats for Education Reform, was most telling:
Monday, April 20, 2015
Bruce Baker posted what may be the best school finance and teacher quality post in a while. He was responding to the New York State Education Department's most recent response to the fact that students in high poverty schools in the state have teachers whose salary is $21,000 per year less than teachers in the lowest poverty schools. The state also acknowledge that "students in high poverty schools are nearly three times more likely to have a first-year teacher, 22 times more likely to have an unlicensed teacher, and 11 times more likely to have a teacher who is not highly qualified." NYSED's proposed strategy to resolve the problem, however, was troubling. Its sole solutions were:
Monday, April 6, 2015
In the summer of 2013, Indiana passed a new voucher and tax credit bill that vastly expanded opportunities for students to attend private schools. In just ten school districts alone, the program funded $45 million in vouchers in the 2013-14 school year. In several individual school districts, the amount spent on vouchers doubled and tripled from the 2012-13 school year. Local teacher unions complain that the program is too permissive, permitting students who have never even "tried" the public schools to opt for a privately funded private education. They claim approximately half of the voucher students fall in this category.
Friday, April 3, 2015
Last month, the Kansas House took action to move the state further away from the funding adequacy mandated by its Supreme Court. A bill passed the House that would eliminate the existing school funding formula and replace it with block grants. While the prior formula had numerous flaws and failed to properly account for student need and district capacity, it did include some weights that acknowledged those factors. A flat grant system would assume all districts are the same. Whether that such a system is more irrational than the old one, I cannot say, but irrational it too would be. In other words, the funding system would remain unconstitutional.
Wednesday, March 25, 2015
In a fourth challenge to Tennessee's school funding system, seven county boards of education sued the Governor and the State of Tennessee in Hamilton County Bd. of Educ. v. Haslam, filed on March 24. The plaintiffs are asking a state court to find that the state has neglected its duty to fund public education under the Tennessee Constitution. The plaintiffs, according to a release by the Education Law Center, are asking for relief on several claims, including "an unfunded mandate claim  based on what plaintiffs state are extensive additional and costly responsibilities placed on schools by the state with no funding to cover them." The plaintiffs also allege that the state ignored its responsibility to fund 75% of classroom costs; the plaintiffs allege that the state is only funding about 70%, resulting a $134 million shortfall. The plaintiffs further claim that the state has failed to phase in funding under laws passed to comply with previous judgments in three school funding cases, Tennessee Small School Systems v. McWherter I, II, and III), which they allege resulted in additional funding shortfalls of about $600 million. (For more on the Small Schools litigation, see the National Education Network here.)
Tuesday, March 24, 2015
This American Life ran a story last night, Three Miles, on a program "that brings together kids from two schools. One school is public and in the country’s poorest congressional district. The other is private and costs $43,000/year. They are three miles apart. The hope is that kids connect, but some of the public school kids just can’t get over the divide." Chana Joffee-Walt tells the story and allows us to listen to what happens when students get to see the other side and it looks a lot better. She not only describes poor students’ immediate reaction to seeing the rich school (one spontaneously bursts into tears) but also follows up on them ten years later and reports on how that experience affected their going—or not going—to college (or going and failing out, as several unfortunately did).
Although not emotionally raw, this story also reminds me of James Ryan's similar lens of analysis in Five Miles Away, A World Apart, which describes segregation over time in Richmond, Virginia.
Friday, March 20, 2015
George Joseph's new story in the Nation, 9 Billionaires Are About to Remake New York's Public Schools—Here's Their Story, suggests the answer to this post's question is yes. The story details the role that hedge fund managers and other wealthy individuals have played in theorizing and financing changes in public policy in New York state. The two major changes on which he focuses are more charter schools and less money for traditional public schools. The story, if its inferences, are true is rather scandalous. It might also put a different spin on the story I commented on two years ago regarding Goldman Sach's investment in Salt Lake City's pre-k program.
Believing that pre-k would save the district money in the long run, Goldman promised to front the cost of expanding the city's pre-k program. The catch was that the district had to promise Goldman a 40% cut of any subsequent savings in special education that the district accrued. To me, this private investment was persuasive evidence of why the public should invest its own money in pre-k education, and need not let private financiers "get in on the deal."
Does either the New York or Utah story indicate a conspiracy? Not necessarily. But it does indicate that there is money to be made in education and we cannot underestimate the influence of this reality. The public should be hypersensitive in evaluating education policies that directly benefit private industry or individuals. Those policies might very well be good or excellent, but they might also be ruses. Education experts and the research they produce, not the self-serving rhetoric of financial elites, must serve as the arbiters.
Thursday, March 19, 2015
New York Pays "Usual Suspects" to Recyle "Money Doesn't Matter" Defense in Small Cities Trial by Molly Hunter
In the final days of trial in Maisto v. State of New York -- the "Small Cities" case -- the State brought on Eric Hanushek and David Armor to mount the time-worn, discredited "money doesn't matter" defense. Hanushek and Amor have spent their careers being handsomely paid to testify across the country against public school students who are challenging the lack of funding, resources and educational opportunity in their schools, based on state constitutional guarantees. In almost all of these cases, the courts have flatly rejected their arguments.
Notable about Hanushek and Armor's appearance in the Small Cities case is that they gave the same testimony 15 years ago in the Campaign for Fiscal Equity v. State case, a challenge to inadequate educational opportunities for New York City students. In that case, the Hanushek and Armor "money doesn't matter" argument was dismissed outright by the trial court and the Court of Appeals, New York's highest court. Even in the face of this record, the New York Attorney General again retained Hanushek and Armor to recycle their contentions , this time against the Plaintiffs in the Small Cities case -- students in eight high-poverty, upstate school districts.
Hanushek and Armor were cross examined in the Small Cities trial by Gregory Little of the White & Case law firm in New York City. Mr. Little represents the Small Cities students pro bono, serving as lead trial counsel with William Reynolds of the Bond Shoeneck firm in Albany. Education Law Center also serves on the trial team. In 2011, Mr. Little cross examined Hanushek in Abbott v. Burke where he unsuccessfully testified in defense of Governor Chris Christie's massive $1.1 billion school funding cut.
Wednesday, March 18, 2015
Almost immediately after the trial court in Vergara v. State held that California's tenure and last-in-first-out statutes violated students right to education under the California Constitution, litigants filed a similar claim against New York, Davids v. New York. Last week, the trial court denied the state's motion to dismiss and permitted that case to move forward. Campbell Brown, who is helping lead the anti-tenure movement, hailed the decision as “a major victory for New Yorkers, especially for parents and students.” To the extent their claim is alive and they thought it would fail, yes, it is a significant victory. On the other hand, the judge's decision was unsurprising and probably correct.
The complaint in Davids was better written than Vergara. Its causal assertions were more clearly articulated and speak more directly to the prima facia claims that litigants must make in educational adequacy and equity claims. But stating a claim in a complaint and proving that claim with real and compelling evidence are two different things.
As I emphasize in this article, the notion that tenure might violate students' right to education is theoretically valid and, thus, courts should be careful to not peremptorily bar such claims because doing so might also have negative reciprocal effects on other important theories that seek to vindicate the constitutional right to education outside of school funding (in areas such as student discipline, student assignment, and segregation). Yet, courts must also refrain from the allure of the simplicity of the tenure claims. Unfortunately, the latter is exactly what the trial court in Vergara seems to have done.
School quality and equity cases are incredibly complex. Courts have required plaintiffs to demonstrate
- a constitutional duty
- a substantial and systematic deprivation of rights
- input causation: state responsibility for local deprivations
- output causation: whether the deprivation affect pertinent educational outcomes, and
- that the violations are susceptible to a remedy (or the remedy that plaintiffs request)
While the Davids plaintiffs generally make these allegations in the complaint, these allegations are really just assumptions. Demonstrating the truth of these assumptions is going to be extremely difficult, and will require far more nuanced analysis and evidence regarding multiple factors affecting educational and teaching quality, which the plaintiffs have yet to even acknowledge. Nonetheless, under liberal pleading rules, it is most likely plaintiffs' right to try to prove those assumptions. Although as I note in my article, newer more strict pleading rules in federal court might provides a basis to dismiss claims that assume or speculate about key issues. Of course, state education claims proceed in state court and most states have yet to move to the new federal approach.
Download the New York opinion here: Download 2015 March Motion to Dismiss Denied -A-043 - Davids-Wright
Tuesday, March 17, 2015
Partners in some of Boston's largest law firms plan to file suit against Massachusetts, arguing that its cap on charter schools violates the state constitution's education clause. Their theory, at this point, is not clear. They say the suit will be brought on behalf of children who wanted to attend charter schools, but were not afforded a seat through the lottery procedures. Instead, the students enrolled in underperforming traditional public schools. “We don’t think they should be denied that opportunity, and we don’t think the Constitution allows them to be denied that opportunity,” Lee said. “We’d like to see the cap removed so that supply meets demand.” Their impetus appears to be a belief in studies claiming the academic superiority of charter schools.
The lawsuit is significant on several fronts beyond just the particular claims it might raise. First, it would appear to attempt to expand the scope of school finance precedent. This same type of strategy is at play in the constitutional challenges to tenure in Vergara v. California and similar litigation in New York. As analyzed here, the tenure theory can find some support in school finance precedent (although the plaintiffs' facts are lacking on causal questions), but how charter caps would fit into school finance precedent is far from obvious. To the contrary, the better constitutional arguments have been that charter schools violate the education clause (although courts have been reluctant to hold as much). Absent some revolutionary theory, the challenge to charter school caps is unlikely to go far. Nonetheless, it is an important example of how malleable school finance precedent could expand or, at least, how many different types of lawsuits might be brought in the attempt to expand it.
Second, this lawsuit also represents another instance of what David Sciarra has called grandstanding in education cases by certain big law firms. Education reformers' political theories are being transformed into constitutional claims by big law firms looking for pro bono work. It is unclear as to whether the firms are being duped by education reformers self-righteousness and their civil rights rhetoric or the firms are just looking to grab headlines through controversial litigation. Either way, the litigation is potential dangerous to long term education rights. The constitutional right to education is not political and never should be treated as such, but educational constitutional claims push separation of powers concerns to the brink in school quality and quality cases. Voyeurism into this area with these new claims looks like politics rather than vindication of constitutional rights. In this respect, litigation of this nature has the potential to undermine current rights .
Third is the question of litigation resources. With all the fundamental funding, quality, and racial inequalities in public education systems, the notion that a major law firm would skip past those issues to litigate on behalf of charter school interests is ironic to say the least.
Friday, March 13, 2015
With the Fair Housing Act currently before the Supreme Court in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, several education commentators and civil rights advocates have emphasized the connection between housing and schooling. Of course, the Poverty and Race Research Action Council has long made this connection, in contrast to others that focus on housing and education policy in silos.
Los Angeles Unified School district has recently been making a connection entirely lost on me until this week. The district brought a claim under the Fair Housing Act against three major banks, alleging racially biased mortgage lending. Why, some might wonder, would a school district bring a housing claim? Because, according to the district, the banks' lending practices led to foreclosures in the Los Angeles area, which directly lead to lower home values and real estate taxes--the life blood of education. In other words, biased home lending practices not only lead to racially segregated schools-the point most often made by advocates--but also inadequate financial resources for those segregated schools.
So far, the district is facing an uphill battle. In February, the district court dismissed the claims, reasoning that school funding levels are not directly tied to local property taxes. The district is now appealing. More here.
Thursday, March 12, 2015
Back in the fall, David Sciarra, Executive Director of the Education Law Center, chided David Boies for lending his services to the movement to use school finance precedent to bring constitutional challenges to teacher tenure, when, at the same time, so many states are still failing to comply with their school funding obligations under that precedent. In other words, while tenure may be an issue, it pales in comparison to the fundamental underlying inequalities that students suffer in high poverty underfunded schools.
One of the cases that could have used Boies' assistance is Maisto v. State of New York, also known as the “Small Cities” case. That case was brought by parents and children in eight small city school districts across New York State. The Maisto districts all have low property wealth, higher than average local tax rates, and intense poverty, which causes high mobility rates and other challenges. These districts struggle lack the funding to provide reasonable class sizes, a full curriculum, and programs for high-needs students. The plaintiffs say their plight violates the state's constitutional obligation to provide a “sound basic education” for all children.
That case went to trial in December and is still ongoing. Gregory Little, a partner at White Case, stepped up, with no fanfare, to serve as lead co-counsel on a pro bono basis, spending hundreds of hours preparing for, and representing the 55,000 students in some of New York's highest poverty schools. He and his firm are partnering with the Education Law Center and William Reynolds of Bond Shoeneck in Albany to the bring the case. This partnership and its claims stand in sharp contrast to the constitutional challenge to tenure. Hopefully, it pays dividends for the clients.
Tuesday, March 10, 2015
Corey Robin's new essay offers thoughtful insight into the new irony of integration: our students are being taught integration and anti-racism values far more than prior generations ever were, but they are also experiencing far less integration in their schools than prior generations (post 1960 generations). Robin writes:
In her public school this year, my first-grade daughter learned that Daisy Bates helped integrate the Little Rock schools. She knows that Ella Baker, someone I’d never heard of till I went to college, was part of the civil rights movement. Meanwhile, her school has a combined black and Latino population of 15 percent, down from nearly 30 percent just seven years ago.
In school, white children are taught to be conscious of race and racism in a way I never was when I was as a kid in the 1970s. Yet they go to schools that are in some respects more segregated now than they were in the 1970s. In 1972, under Richard Nixon, 36 percent of black students in the South attended white-majority schools. By 2011, under Barack Obama, that number had plummeted to 23 percent. In every region of the country, a higher percentage of black students go to nearly all-minority schools than was the case in 1988. The same is true of Latino students in the South, the West and the Midwest.
Robin labels this the "white privilege con," whereby elites can have “conversations” about race while, at the same time, resegregating schools. This notion also permeates Osamudia James' new article, White Like Me: The Negative Impact of Diversity Rationale on White Identity Formation, 89 N.Y.U. L. Rev. 425 (2014).
All this reminds me of my recent visit to one of the more privileged public high schools in South Carolina. I was asked to come spend the better part of two hours with a small group of seniors and facilitate a discussion about our state's school funding case. The first hour was filled with the students' thoughtful ideas, solutions and comments about the inequities in our public schools. They also recognized how demographically different our poorest schools are. I was honestly extremely impressed with these students. At one point, I told them "you are offering a powerful counterpoint to almost everything Washington, D.C. is doing in education today." I think everyone in the room was enjoying the experience, but I finally asked the group, which did not have a minority student in it, whether they suffered any disadvantage in their own school, whether there was anything that would make their school environment better. I hid the ball for some time before pointedly asking: "doesn't it strike you as odd that we have sit here having a conversation about how to fix the education in schools about which none of us really know anything, about student of whom we know so little?"
Wednesday, February 11, 2015
In November, plaintiffs in eastern Pennsylvania, including four school districts, several parents, and the NAACP, filed a lawsuit alleging that the state's funding system is unconstitutional. They cite the state constitution's education clause, which states "“[t]he General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth." This clause, they say, establishes education as a fundamental right.
Although not plaintiffs--yet--superintendents in western Pennsylvania are stepping forward to challenge the system as well. Erie schools superintendent Jay Badams and Bill Nichols, superintendent of the Corry Area School District, recently testified at a hearing of the Basic Education Funding Commission, which is working to recommend a new formula for distributing basic education funding to districts. Badams says the current formula is irrational and unpredictable. Districts have no way of knowing from one year to the next how much money they will receive from the state. This makes planning and balancing school budgets extremely difficult.
To the extent this is true, Badams raises an important point I have not often seen in other states. In school finance litigation, the claim is generally that funds are insufficient or unequal. Recent shortfalls in Philadelphia suggest this is the case in Pennsylvania as well and that courts could step in on this basis alone. See here and here. But Badams offers an equally justifiable basis for intervention or reform. Without recounting the precedent from states like Kentucky and West Viriginia on what it means to offer a "thorough and efficient" education, it suffices to say that a funding system that is unpredictable is antithetical to a system of thorough and efficient schools, even if it might otherwise produce sufficient funds.
Friday, January 30, 2015
Yesterday, Rebecca Klein at Huffington Post published a U.S. map color coded by the average per pupil expenditure in each state. See here. In the heart of the Northeast (NY, NJ, MA, and VE), states spend $16,000 to $20,000 per pupil. Their immediate neighbors spend $12,000 to $14,000. Most of the North-South border states (extending out to Montana) spend $10,000 to $12,000 per pupil. In the Southeast, only one state-Louisiana-spends more than $10,000 per pupil. No obvious explanation for Louisiana jumps to mind. The lowest per pupil expenditures in the nation stretch from the Canada border in Idaho to the Mexico border in Arizona, at less than $8,000 per pupil.
A map of this sort is, unfortunately, too simplistic because it does not account for locality costs. Given the cost of living, the per pupil expenditures in the Northeast necessarily should be higher than those in the South, and those in certain parts of the West even lower. The relevant question is whether expenditures in those states are excessively low or high. With that factor in mind, the per pupil expenditures in California, Oregon, and Washington are the most striking. California falls in the same spending bracket as Mississippi, Alabama, Arkansas, Kentucky, and South Carolina. Go figure. Florida, likewise, falls in the same category as the rest of the Southeast, notwithstanding its dramatically different demographics and costs. For a better means tested analysis of funding, see the Education Law Center's funding fairness reports here.
Klein's second graphic, however, is very instructive. It shows the change in education spending from 2011 to 2012 (adjusted for inflation). Only seven states saw education funding rise. Only 4 saw significant increases. Fourteen states experienced modest decreases in funding (1 to 2% in real dollars), but the biggest group of 29 states saw education funding decrease from 2 to 9 percent.
Tuesday, January 27, 2015
For those left wanting more after my quick post two weeks ago, Molly Hunter got her hands on the full opinion and offers the following summary:
On December 30, 2014, a three-judge District Court panel, in Gannon v. State, declared that the Kansas "approach to funding the K-12 school system" violates the Kansas Constitution because funding is "inadequate from any rational measure or perspective."
In March 2014, the Kansas Supreme Court, also in the Gannon case, reiterated the fact that the Kansas Constitution requires both equity and adequacy in school funding and set out clear definitions and tests to determine whether the state was complying with each requirement.
After the Supreme Court found the Kansas system was violating the equity standard in March, the Legislature adjusted state funding to remedy that finding.
On the adequacy requirement, also in its March decision, the Supreme Court remanded plaintiffs' claim of inadequacy to the panel of trial court judges. The Court instructed the District Court panel to determine whether the state's school funding system was providing sufficient funding, separate from the resolved issue of equitably distributing the funding, and whether that funding was sufficient using the "Rose factors," enumerated below.
Friday, January 9, 2015
Just before the end of the year, a three judge state district court panel held that Kansas public schools have been unconstitutionally underfunded. The court found insufficient "provision allowing localities to provide funding to equalize the gap between rich and poor districts . . . because it did not guarantee that the playing field would be leveled." This decision marks jut one more in a line of lower and supreme court opinions consistently finding that the Kansas legislature is failing to provide sufficient educational funding to meet the state constitution's requirement of "'suitable provision[s] for finance of the educational interests of the state.'" The panel refrained from indicating what specific amount of additional funding would be sufficient, citing separation of powers concerns. The panel did, however, suggest that somewhere between $4,654 - $4,980 per student would be constitutional. This suggestion also comes on top of 2013 ruling that an additional $440 million would be necessary statewide to meet constitutional requirements. The state previously agreed gradually increase per pupil funding to $4,492 and nearly got there in 2008, but since then, let per pupil funding dwindle back down to $3,852 per student. Recent tax cuts in the state, commitments to teachers' pension plans, and a projected $278 million shortfall in the state budget for 2015 will make reversing this trend a political challenge, but the constitution offers no quarter to such politics.
Unfortunately, I have been unable to read the opinion itself and have had to rely on media reports. I will update this post with a link to the opinion when it becomes available. I did, however, find an excellent time line of school finance battles in the state here.