Thursday, October 25, 2018

All Signs Point Toward a Constitutional Problem in Virginia's Education System

VirginiaEducation advocates have struggled to force Virginia to live up to its constitutional duties.  And as a result, the state has had carte blanche to mistreat its public schools.  It is little surprise that the most recent School Funding Fairness Report rates Virginia’s school funding as an “F” in terms of directing funds to needy students.  And while it is a relatively wealthy state, its overall spending levels are relatively low.  The tide may very well turn soon.  But first, a little background is in order.

Virginia’s constitution includes one of the strongest endorsements of public education you can find.  It provides that the “General Assembly shall provide for a system of free public elementary and secondary schools for all children of school age throughout the Commonwealth.”  In other words, the public education system is non-negotiable.  There is a constitutional duty to provide it.  In addition, that same section of the constitution provides that the “educational program of high quality [should be] established and continually maintained.”   The constitution gets even more specific, stating that the State Board of Education “shall . . . prescribe[e]” the “standards of quality for the several school divisions.”  Thus, the constitution says the precise definition is not to be left to chance. It is the Board’s duty to prescribe these high quality standards.

But some would argue there is a catch.  That constitution says General Assembly “shall seek to ensure” the education program and “determine the manner” in which it will fund the schools, which leaves the General Assembly some discretion.  In Scott v. Commonwealth, plaintiffs sought to test out these education clauses and challenge unequal funding in the state.  The Virginia Supreme Court rejected the challenge, holding that the constitution does not guarantee “equal” or “substantially equal” school funding.  That decision has scared advocates away ever since.

Some experts believe that now is the time to revisit the constitutionality of school funding in the state.  David Sciarra, of the Education Law Center, tees up the issue perfectly.  He explains that people pay too much attention to what the Court dismissed in Scott and not enough attention to what it left open.  The Roanoke Times offers this summary of its recent conversation with Sciarra:

Sciarra says he’s surprised that so few people have actually read that decision, because he thinks while it closes one door, it opens another one, or at least points the way toward it. Put another way, Sciarra thinks the plaintiffs in Scott v. Commonwealth of Virginia made the wrong argument. They made a strictly financial argument that there was a “great disparity” in funding. There still is. More than twice as much is spent on students in Arlington than in Norton, although that’s largely because affluent Arlington spends far more of its own money. It’s hard to tell Arlington it can’t spend its own money on its schools, and it’s hard to say that Virginia taxpayers should be on the hook to automatically match Arlington’s level of funding across the state. “Nowhere does the Constitution require equal, or substantially equal, funding or programs among and within the Commonwealth’s school divisions,” the Virginia Supreme Court ruled in 1994.

Sciarra, though, points to something else the court said, not just once but twice. The court pointed out that the plaintiffs “do not contend that the manner of funding prevents their schools from meeting the standards of quality.” That, he says, is the key phrase no one has picked up on — because, while the Virginia Constitution doesn’t mandate equal funding, it does appear to mandate that schools meet certain standards of quality.

If a school system were to show that its funding is so low that it cannot meet those standards, Sciarra says, then the General Assembly is compelled to do something about that. “The problem in Scott is they didn’t go to court over that; they went to court over money and only money,” Sciarra says. “The court doesn’t say anything about equalized dollars.” But twice the court pointed out that the plaintiffs didn’t complain that their schools weren’t meeting the constitutional requirement of “standards of quality.”

The Board of Education — whose nine members are appointed by the governor — could at any time set standards for Virginia’s school buildings. That, Sciarra says, would either force the General Assembly to act, or open the door for a lawsuit that some of these buildings are so old that they are unable to deliver a quality education.

“Scott is a very powerful case,” he says. “Scott is extraordinarily relevant.” He’s just surprised no one else has read it the way he has. Is Virginia’s Board of Education content with the condition of some of Virginia’s schools? If not, it has the power to do something about them.

I would go even further than that.  There are two key facts that suggest that the General Assembly has already violated the constitution and does not have near the discretion that some might assume.

First, in recent years, the General Assembly has manipulated its education budget to reduce education expenditures in contradiction to the education standards established by the State Board of Education.  For instance, following the recession, Virginia, for no defensible reason, capped the number of support personnel positions it would fund in schools—something it had not previously done.  Its purpose was obvious.   By excluding these personnel from the statewide funding formula, the state drove down its estimate of base education costs.  In a single year, this exclusion allowed the state to cut $378 million dollars from base education funding, but still act like it was funding the cost of education. 

This constitutional problem should be apparent on the face of the facts.  These personnel and other costs are part of the State Board’s constitutionally required proscription of the standards of education and the resources necessary to meet those standards.  With these and other cuts, the General Assembly’s education appropriations fell $339 million short of the Board’s estimated cost of meeting the standards in 2016.  The state simply continually flouts these standards.  In doing so, it is not acting in good faith in carrying out its constitutional duty. 

Similarly, Sciarra later added in a discussion with me that, as to facilities, "the cost of maintaining a program based on the Standards of Quality must include ensuring buildings that are safe, not overcrowded and adequate to deliver the Standards of Quality."  This measure is so minimal and obvious that the General Assembly is obligated to provide these funds "even in the absence of building standards in the Standards of Quality."

Second, Virginia, along with two other states, was in the last group of confederate states to be readmitted to the Union in 1870.  Congress mandated that all states comply with the U.S. Constitution’s requirement that states provide a republican form of government.  Virginia and the two other states had dragged their feet and refused to comply with Congress’s demands.  When Virginia finally amended its constitution and came into compliance, Congress remained worried that Virginia would back track.  Some other states had done so on some issues. Thus, Congress placed a specific statutory condition on Virginia’s readmission.  The statute—still on the books today—provides that “the constitution of Virginia shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the school rights and privileges secured by the constitution of said State.”

This precise phrasing is absolutely crucial because it construes Virginia’s commitment to public education in 1870 as a “right” and says that the state can never take that “right” away.  The enforceability of this statute in federal court raises a host of complicated issues that don’t matter here (For more on them, see Williams v. Bryant, a case seeking to enforce the same condition on Mississippi).  The important question here is whether Virginia’s constitution creates actual education rights and duties that the legislature is bound to carry out.  The answer ought to be yes just based on reading the Virginia Constitution.  But the back story further confirms the fact that the answer is yes.  As I detail in the Constitutional Compromise to Guarantee Education, 70 Stanford Law Review 735 (2018), the right to public education is vested in various state constitutions, but it is a right that the federal constitution requires that states provide.  Virginia simply cannot back out of its education duties, nor should any Virginia court allow it to do so as a practically matter.

In sum, as Sciarra points out, the Virginia Supreme Court left a huge door open for alternative school funding claims in Scott.  The most important claim is whether the state is providing the resources necessary to meet the state standards for high quality education.  On this question, the facts are pretty clear the state has not been living up to this constitutional obligation.  Moreover, on this claim, the state should not be able to avoid its responsibility, as it did in Scott, on a theory of legislative discretion.  The constitutional history of the state and the condition of readmitting Virginia to the Union demonstrate that students’ rights are at stake and those are rights that Congress requires Virginia to afford its students.

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