Thursday, July 26, 2018
A New Mexico trial court recently found that the state has been failing in its constitutional duty to ensure that all students receive an adequate education. The court ordered the state to come up with a fix by next April. In practical terms, any fix will mean more money for poor school districts, more oversight to ensure uniform opportunities across the state and more education services for at-risk students.
On most facts, the decision seems obvious. New Mexico’s schools are among the lowest funded in the nation. And those relatively meager funds are not shared evenly among districts, either. Students in higher poverty schools in New Mexico often receive substantially less money than students in other schools. A school funding fairness report grades New Mexico’s system as a “D.” In other words, New Mexico needs to spend more money on all of its schools and a lot more money on its high poverty schools. This new court decision orders the state to do just that.
The problem is that New Mexico is not a wealthy state. Considering the state’s overall poverty, local government actually tries pretty hard to fund education with what it has. On this measure of education funding effort, New Mexico ranks in the top 15 in the nation. This led the state to defend its failures by arguing that it lacked the funding to deliver an adequate education.
The court wouldn’t hear it. It offered the textbook response: Fiscal constraints are not an excuse for depriving individuals of their constitutional rights. A “sufficient education is a right protected by the New Mexico Constitution” and it is the state’s “paramount duty” to provide it, the court’s decision states. states. This means education is “entitled to priority in funding” and all other competing state programs are “secondary” at best, the court ruled. In short, fully funding the constitutionally required level of education is non-negotiable.
New Mexico can do better. Other poor states like South Carolina, Arkansas, West Virginia and Mississippi choose to spend more of their overall wealth on education than New Mexico does. And they all, including New Mexico, could stand to spend more. After adjusting for inflation, New Mexico, for instance, spent 11.7 percent less per pupil in the 2015-16 school year than it did in 2008 before the Recession set in. Yet, the state is bringing in almost 50 percent more in total tax revenues now than it did in 2008. State and local government are simply choosing to spend those revenues elsewhere.
Shrinking federal oversight
This sad set of facts also ought to serve as a wake-up call to policymakers regarding the federal role in education. First, federal education appropriations have been relatively flat for the past decade. So poor states aren’t getting much help from the federal government. Second, federal oversight of state inequalities and failures is shrinking.
In 2015, Congress passed the Every Student Succeeds Act. The overarching premise of the act was that the federal government has been overreaching in education and its was time to return discretion to the states. In 2016, President Donald J. Trump campaigned on the notion that we should minimize the federal role in education even more. In 2017, he appointed a secretary of education who consistently argues we must shrink the federal footprint in education.
The sad story in New Mexico and other states is that many states can’t be trusted. Left to their own devices, state legislatures have shown a strong propensity to provide unequal and underfunded educational opportunities. It has traditionally only been the federal government that has tempered that instinct.
Without a strong federal role in education, state courts often stand as the final bulwark for student’s rights. New Mexico just added its name to the list of state court systems that continue to demand that states live up to their constitutional duty in education. The problem is that there are a lot of states still not on that list.
Wednesday, July 25, 2018
Court Finds New Mexico's Funding System Deprives Students of Adequate Education, Particularly Disadvantaged Students by Wendy Lecker
In a major victory for New Mexico public school children, the district court, in a July 20 ruling, found that inadequate school funding violates the education article of New Mexico's constitution, as well as violating the constitutional equal protection and due process rights of economically disadvantaged students, English Language Learners and Native American students.
The Mexican American Legal Defense and Education Fund (MALDEF) filed Martinez v. State in 2014, on behalf of parents and students, to establish education as a fundamental right and ensure meaningful educational opportunities for all students, especially those who are economically disadvantaged, English language learners (ELL), Native American, and/or of Spanish-heritage. The New Mexico Center on Law and Poverty filed a similar case, Yazzie v. State, also in 2014, and the trial court consolidated these cases. The trial team also included pro bono counsel Martin Estrada and his colleagues from Munger, Tolles & Olson in Los Angeles. The two- month trial before District Court Judge Sarah Singleton concluded in August 2017.
Judge Singleton held that the Legislature, through various statutes, has defined what a constitutionally adequate education is for New Mexico students and, accordingly, relied on those statutory provisions to determine whether the state met its constitutional obligations. The court also established the burden of proof in a school funding case in the state, holding that the plaintiffs must prove a constitutional violation by a preponderance of the evidence.
Judge Singleton found that there was sufficient proof presented at trial of inadequate essential educational resources in New Mexico's schools. The evidence demonstrated that schools across the state suffered from inadequate instructional materials, curricula and teachers. The court highlighted that insufficient instructional material for Native Americans violated statutory mandates and therefore the constitutional rights of those students.
Judge Singleton determined that the essential resources to deliver a reasonable curriculum must include resources to provide at-risk students the opportunity to compensate for any barriers they may face. Thus, the court found as essential such programs as quality full-day pre-K, summer school, after-school programs, small class size and research-based reading programs. The court credited expert testimony at trial that ELL students in particular benefited from smaller class size.
In finding inadequate funding for teachers and teacher training, the court addressed the trial evidence on the impact of New Mexico's test-based teacher evaluation system, noting that "punitive teacher evaluation systems that penalize teachers for working in high-need schools" exacerbated the quality-teacher supply deficits in these schools. The court also found that high-needs districts had more inexperienced teachers, noting that it "is well-recognized that inexperienced teachers are systematically less effective than experienced teachers."
Inadequate Student Outcomes
Judge Singleton found that the inadequate inputs in New Mexico's schools led to inadequate student outcomes. She found that New Mexico students rank at the bottom of the nation in English and Math proficiency and high school graduation. The numbers are even worse, she found, for low-income, Native American and ELL students.
The court rejected state claims that outputs are sufficient because at-risk students show growth in achievement. She held that growth is not sufficient, since vulnerable student groups, despite growth, are do not attain proficiency. The court also remarked that even the state is unhappy with the rate of growth among at-risk groups.
The court also credited the evidence demonstrating that of the New Mexico students attending college, a substantial number require remediation-proof that these students were not college-ready.
State Defenses Rejected
Judge Singleton rejected the State's contention that state intervention was adequate in compensating for any inadequacies, noting that these interventions have not altered the evidence demonstrating that "at-risk students are still not attaining proficiency at the rate of non at-risk students." The court found that the state Public Education Department assistance and oversight programs are piecemeal, and thus cannot replace adequate state school funding.
The court also dismissed the State's excuse that students' inadequate outcomes stem from socio-economic factors not attributable to the school system. Judge Singleton noted that while many of these factors exist outside schools, school programs, such as quality pre-K, K-3 Plus, extended school year, and quality teachers, have been proven to mitigate these factors and raise the achievement of at-risk students.
In fact, Judge Singleton noted the testimony of the State's experts, such as Eric Hanushek, who concluded that funding does make a difference in outcomes for at-risk students.
Judge Singleton also rejected claims made by New Mexico often made by states in other school funding cases. Notably, the court noted that the State could not escape its constitutional responsibility by contending that it cannot control district spending, since the state has supervisory responsibility over local districts.
The court also dismissed the contention that the State is constrained by the limited money in the State budget from doing more. The court declared that, "the remedy for lack of funds is not to deny public school children a sufficient education, but rather the answer is to find more funds."
In addition to finding the state in violation of the Education, Equal Protection and Due Process clauses of the state constitution, the court's declaratory judgment also found that the State:
- violated the rights of at-risk students by failing to provide them with a uniform statewide system of free public schools sufficient for their education;
- failed to provide at-risk students with programs and services necessary to make them college or career ready;
- failed to provide sufficient funding for all districts to deliver the programs and services required by the Constitution; and
- failed to supervise districts to assure that funding has been spent in the most efficient manner to meet the need to provide at-risk students with the programs and services necessary to obtain an adequate education.
To remedy the constitutional violation, Judge Singleton ordered the Legislature by April 15, 2019, to -take immediate steps to ensure that New Mexico schools have the resources necessary to give at-risk students the opportunity to obtain a uniform and sufficient education that prepares them for college and career.- The court also ordered the state to implement an accountability system to measure whether programs and services in place actually provide the opportunity for a sound basic education and to ensure that districts are spending funds in a way that efficiently and effectively meets the needs of at-risk students.
Judge Singleton has retained jurisdiction over the case in order to ensure state compliance with her orders.
Wendy Lecker is a Senior Attorney at Education Law Center
Wednesday, July 11, 2018
Trump Administration's Reversal of Affirmative Action Guidance Aims to Scare Schools Away from Diversity and Integration
Racial quotas, for instance, have long been unconstitutional, whereas the consideration of race as one among many factors in the pursuit of the educational benefits of diversity has been approved by the court for decades. Similarly, while school districts cannot reassign an individual student based on race alone, districts can consider race in redrawing school attendance zones to promote integration.
Rather than acknowledge these lines and the fact that some uses of race are appropriate and necessary for improving educational opportunities, the administration will dissuade colleges, universities and school districts from doing anything to promote diversity and integration.
Compelling interest in diversity, or not?
The nation has been here before. When the University of Michigan’s admissions policies were before the Supreme Court in Grutter v. Bollinger in 2003, the Bush administration argued that colleges and universities should not be able to consider race. The court rejected that argument, saying race could be considered narrowly to achieve the educational benefits of a diverse student body.
In 2007 in Parents Involved in Community Schools v. Seattle, the Bush administration made the same argument regarding school districts’ voluntary efforts to integrate. And though it was a 4-1-4 decision, five justices agreed there is a compelling interest in avoiding racial isolation that school districts may pursue.
Yet the Bush administration still discouraged schools from exercising the discretion the Supreme Court had just afforded them. Shortly after Parents Involved, the Office for Civil Rights at the U.S. Department of Education explicitly encouraged "the use of race-neutral methods for assigning students to elementary and secondary schools.” It never once articulated how a school that wished to pursue integration, but could not achieve it through race-neutral measures, could or should move forward.
The silence was deafening but the message clear. The federal government would not support districts in the pursuit of integration. Even worse, it might impede their efforts. Public school districts needed leadership and guidance in an area fraught with complicated politics and legal doctrine. Without it, all but a few districts were entirely scared away from integration even though the court had said they could pursue it.
That is why civil rights advocates fought so hard for the Obama administration to simply take down the Bush administration guidance. Saying nothing at all was better than saying things that scared educators. The Obama administration went further and replaced the Bush-era policy with an evenly stated explanation of what the Constitution allows schools to do. It did the same for colleges and universities.
If there was any overreach in this area — as the Trump administration claims — it was by the Bush administration when it sought to push a view of the law that had failed before the Supreme Court. The Obama administration corrected that overreach and offered schools the guidance they desperately wanted and needed. That guidance did not require a single institution to do anything it did not want. It merely offered guidelines to those that of their own volition wanted to improve educational opportunities for their students.
In the initial years following Grutter and Parents Involved, uncertainty abounded and the Bush administration exploited it. This time around, schools are in a better position to see Trump’s policy reversal for what it is — an attempt to use executive power to remake the law as it wishes it to be rather than as it is.
Schools should ignore Trump, heed courts
Since the Obama guidance, the Supreme Court has reaffirmed the educational benefits of diversity as a compelling interest in Fisher v. University of Texas. In Fisher, it also upheld the consideration of race in an admissions program that took numerous factors into consideration and sought to enroll students who achieved against the odds of their personal circumstances. Since the Obama guidance, several courts of appeals have also held that public schools can legitimately consider race in pursuing integration.
In short, the Bush administration policy has failed and the Trump administration is trying to resuscitate it under the rhetoric of an Obama overreach. Our schools must be smart enough to ignore it. As Justice Lewis F. Powell first wrote in 1978 and the Supreme Court repeated in Grutter, “nothing less than the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.”
Rescinding Obama guidance does not merely ask schools to achieve diversity and integration through other means, it is a heavy handed suggestion that they abandon the goals of integration and diversity completely.
Tuesday, July 10, 2018
Lydia Nussbaum has a new paper, Realizing Restorative Justice: Legal Rules and Standards for School Discipline Reform, in the Hastings Law Journal. Her abstract provides:
Zero-tolerance school disciplinary policies stunt the future of school children across the United States. These policies, enshrined in state law, prescribe automatic and mandatory suspension, expulsion, and arrest for infractions ranging from minor to serious. Researchers find that zero-tolerance policies disproportionately affect low-income, minority children and correlate with poor academic achievement, high drop-out rates, disaffection and alienation, and greater contact with the criminal justice system, a phenomenon christened the “School-to-Prison Pipeline.”
A promising replacement for this punitive disciplinary regime derives from restorative justice theory and, using a variety of different legal interventions, reform advocates and lawmakers have tried to institute restorative justice as a disciplinary alternative. But, as this Article argues, the resulting legal directives are flawed and, therefore, unlikely to roll back the damage caused by zero-tolerance disciplinary practices. They fail both to account for the ambiguity inherent to restorative justice and to provide clear instructions on how to “build” a restorative school. With the aim of advancing school discipline reform and ending the School-to-Prison Pipeline, this Article employs jurisprudential theory to propose a collection of legal rules and standards that formalize school-based restorative justice and translate it into actionable policy.
In her introduction, she uses the experience in Los Angeles Unified School District to explain the challenge. The shift from zero tolerance to restorative justice "did not go smoothly."
The problem, however, is that curbing zero-tolerance discipline with an abstract philosophy like restorative justice proves very difficult. Return, for example, to the story of the Los Angeles Unified School District and its struggle to concretize a restorative ethos across more than 900 campuses, in a school district containing more than 60,000 employees and 660,000 K-12 students. School administrators complained about the lack of resources and personnel to construct an alternative system for addressing student misconduct. Teachers felt as if they lacked adequate training in restorative justice principles, not to mention sufficient class time, to engage students in restorative dialogues. Some thought that troublemaking students were being allowed to stay in school to the detriment of other children’s learning. Similar complaints emerged in other school districts, like Chicago and New York City, also trying to implement restorative justice.
. . . [F]ormal law-based interventions are necessary for reforming school disciplinary practices but that, thus far, such attempts to do so by formalizing restorative justice have been wholly insufficient. To date, legislation, regulations, and court orders mandating schools to use “restorative justice” leave too much discretion to various public and private actors and fail to issue necessary guidance on a whole school approach to restorative discipline. Standing alone, the term “restorative justice” is not a legally realizable or enforceable directive but rather an inherently ambiguous idea, around which there is little consensus, that has spawned numerous, incompatible legal reforms. This confusion extends to the educational setting, where schools have difficulty implementing appropriate, high quality, and ethical restorative practices. Thus, to remove zero-tolerance discipline, which became entrenched policy through legislation and school board regulations, a new disciplinary policy based in restorative justice requires equally clear, executable legal mandates. These new legal directives will change the way school boards, administrators, and teachers make disciplinary decisions and allocate finite resources.
The solution, she reasons, is to adopt rules and standards to formalize the implementation of restorative justice. In particular, she argues for "whole school integration of restorative philosophy" and a requirement that schools adhere to "core principles and best practices."
I suggest there is one more step and it is implicit in Nussbaum's article: tying school discipline to school resources. As I argue in Ending Zero Tolerance and Reforming School Discipline, school discipline is, at its core, a question of school quality. Thus, quality and discipline cannot be separated into silos. And school quality is tied to school resources.
Too often, schools have attempted to end zero tolerance without the resources they need to implement a new system. In fact, the lowest quality and lowest resourced schools are the ones most often tasked with making this shift. The lack of resources in these schools falls on the backs of teachers who are asked to make lemonade out of lemons--but they don't have any sugar. No one recognizes that it is the state's job to provide the sugar--or resources--and it hasn't. Instead, we criticize schools for making lemonade that is too sour. Or we give in to pressures to let them revert to the old way of doing things.
The only escape from this cycle is to unwind it by acknowledging that, in so far as school quality and discipline are connected, states have a duty to provide schools with the resources they need to make the transition from zero tolerance schools to high quality schools.