Monday, December 10, 2018
In October, I had the privilege of participating in a Tedx event sponsored by the University of South Carolina. The subject of my talk was the danger our democracy faces when we fail to ensure equal and adequate public education. I offered warnings and lessons from both the perspective of our nation’s founders and those who rebuilt our nation in the period following the Civil War. The number of parallels between the post-Civil War period and today are striking, particularly the advent of new technology—the penny press newspapers then and the 24-hour news cycle and blogs today. The challenge today is use yesterday’s lessons to solve today’s problems in school funding, critical literacy, and democratic participation. The following is a couple of highlights from the talk:
Democracy is a double edged sword. It places political power in the hands of the people, but to succeed, those people need to be informed well enough to make smart decisions. An educated citizenry cannot be easily manipulated. Not easily oppressed. And educated citizenry will guard its freedom jealously. And when these citizens get it wrong—and they will—they will disagree with one another. And this slows down any major moves in the wrong direction.
So the inherent tension of democracy revolves around the need to place power in the hands of people who may or may not be well-informed. Our founders—the people who wrote the federal and state constitutions we live under—firmly believed the only solution was the only solution was to make sure we have public education system that cultivates the skills that citizens need to participate in democracy.
In today’s world, civics knowledge and critical literacy are, well, critical. By civics I mean how our government works. A large chunck of the public has next to no idea. . . . [But] we also need critical literacy to evaluate what we learn about government and its policies. About one in three Americans are either illiterate or rudimentary readers. Half can’t read a book written at an eighth-grade level and comprehend it. And the sad thing is, that most of us who can do better, don’t. 59 percent of the time, we don’t even read stories behind the links we post, share, and retweet on social media.
If our democracy rests on a literate and well-informed citizenry, we should be scared.
. . . .
This is nothing new.
The US started as an experiment in democracy. Our founding fathers were familiar with the monarchs of Europe and taxation without representation here at home. They wanted people to rule themselves rather than be ruled over by a king.
Some of our most notable founding fathers weren’t entirely sure it would work. They knew democracy’s risks. They knew democracy could turn into mob rule. They knew the masses might decide to take property away from the wealthy and redistribute it. But what they seemed to fear most was that the uneducated masses would be misled by unscrupulous politicians or defrauded at the ballot box. . . .
. . . .[Later,] the Civil War brought the tension between reality and our democratic ideas to a head. The South, and many other states, were not real democracies.
The hurdles that the nation faced in making that transition were in many ways no different than the challenges we face today. . . .
Everything revolved around the flow of information and it was interesting a very chaotic flow of information, just like today.
They had the penny presses. They were in many respects like the blogs of today. Everyone had their own press and paper. And they were just as polarized. National, state, and local political parties had their own papers. From the tip of main to the edges of the western frontier, every little town and hamlet had its own newspaper had its own newspaper. And so did a lot of other people. Some focused on politics. Others focused on scandal and intrigue.
. . . .
The nation was primarily rural and largely disconnected, save but one thing—the newspaper. If a citizen wanted to know what his representative was doing in Washington DC or in the state capital for that matter, he had only one way of knowing. That was by reading the papers. And the average person had to sort through a lot of differing accounts and opinions in the penny presses to get to the bottom of things. They couldn’t just take someone’s word for it.
At the close of the Civil War, Congress sought a solution that would bring millions of new people into our democracy and rebuild it. The solution was public education.
Congress told Southern states that if they were going to reenter the Union, they had to get serious about democracy. This meant extending the vote to African Americans and radically expanding their public education systems. As a result, all of the southern states amended their state constitutions to mandate the provision of public education. Other Northern states would do the same in the coming years. And in fact, following the civil war, no state would ever again enter the Union without a provision in their state constitution mandating public education.
This period offers some important lessons. First is the general importance of public education to democracy. Second, the education system must be equally open and uniformly available to all. Third, that public education must prepare citizens for the demands of democratic participation.
What should we do today?
. . . . [As a country,] we cannot forget that the skills and outcomes we want students to obtain depend on state support----money. Recent studies show that twenty percent increases in school funding would cut the black-white graduation gap in half. They also show that funding cuts over the past decade depressed student achievement. Yet, most states continue to fund education, in real dollar terms, at a lower level than they did in 2008, ten years ago. And schools with the most disadvantaged students in the most disenfranchised communities tend to have the least resources. We simply cannot claim that our education system is leveling the playing field and securing democracy’s future if we won’t fund it adequately and equally.
[As individuals,] we face many of the same challenges as our children, but it is on us to make ourselves better consumers of information. No one is coming to re-school us. And we are for now, the ones in whose hands this democracy is entrusted.
We are in both a better position and worse position than we were back in the 1800s. Our position is worse because we have more to deal with: radio, television, print, social media and our cell phones.
But we are in better position to navigate the noise because we have access to real information. . . .
We should take these opportunities to be good stewards of information and to contribute to the civic conversation in a positive way. As a scholar, citizen, and just everyday reader, I have found that there are at least two ways to do that. . . .
Watch the full talk here.
Tuesday, October 2, 2018
After years of stalled progress, underway in North Carolina aimed at moving the State to fulfill its constitutional duty to adequately fund public education. In response to a joint request by the parties in the landmark Leandro v. State litigation, Superior Court Judge David Lee has ordered WestEd, an independent consultant, to conduct an in-depth study and make recommendations to remedy the constitutional violations found in the Leandro case through the provision of constitutionally adequate resources for all North Carolina public schools.
In 1994, parents, students and school districts in low-wealth rural counties filed Leandro v. State, alleging students in these counties were being denied their right to an adequate education under the North Carolina constitution. In 1997, the North Carolina Supreme Court permitted the case to proceed to trial, declaring that all students in the state are entitled to "the opportunity to receive a sound basic education." After trial, the lower court found in 2002 a violation of the students' right to a sound basic education and ordered the State to remedy the violation by providing:
- A "competent, certified, well-trained teacher who is teaching the standard course of study" in every classroom;
- A "well-trained competent principal with the leadership skills and ability to hire and retain competent, certified and well-trained teachers" in every school; and
- The "resources necessary to support the effective instructional program" in every school "so that the educational needs of all children, including at-risk children, to have an equal opportunity to obtain a sound basic education, can be met."
In 2004, the Supreme Court upheld the trial court ruling and retained jurisdiction to ensure the State complied with the decision. Since 2004, some efforts have been made to comply with the Supreme Court ruling - notably, by expanding access to high quality preschool for at-risk four-year olds. Plaintiffs, however, continue to maintain that the State has not achieved full compliance with the specific requirements for a constitutional sound basic education established by the Leandro rulings.
After years of annual hearings to review student performance and other education data, in July 2017, the Plaintiff parties, including the Plaintiff-Intervenor, Charlotte-Mecklenberg Branch of the NAACP, and the State jointly asked Judge Lee - who had recently been assigned the Leandro case - for an order to appoint an independent expert consultant to develop recommendations for the State to comply with the three Leandro elements for a sound basic education. Judge Lee agreed and issued an order on February 1, 2018, appointing WestEd, an education research non-profit based in San Francisco, to undertake a study to recommend a plan to remedy the continuing constitutional violation in Leandro.
The Plaintiff-Intervenors are represented by attorneys Mark Dorosin and Elizabeth Haddix at the Julius L. Chambers Center for Civil Rights.
Leandro Court's Remedial Process
In several orders, Judge Lee not only appointed WestEd to conduct a remedial study but also established a process and timeline for conducting and completing the study. Specifically, WestEd must provide monthly progress reports to the parties and the Court, must meet with the parties to inform them of progress, and must provide opportunities for the parties to give input on the plan.
Judge Lee specifically directed WestEd to address each of the three elements of the Leandro ruling - qualified teachers, experienced leaders and adequate resources - and make recommendations for action by the State to remedy deficiencies in each area. The Judge ordered WestEd to complete its study and submit final recommendations to the parties and the Court within twelve months, or by March 31, 2019.
In its final recommendations, WestEd must provide all of the facts and opinions that form the basis for its recommendations. The parties also have the opportunity to respond to WestEd's final recommendations. Finally, Judge Lee reserved the right to order further proceedings and/or discovery, including a hearing, regarding the final recommendations, should the Court deem these actions necessary.
The WestED Remedial Work Plan
WestEd has submitted a work plan to examine teaching, administration and the provision of resources necessary to support effective instruction. In particular, West Ed proposes to address the following issues:
- Teachers: focusing on attracting and preparing teachers; developing and supporting teachers; and retaining teachers and extending their reach to influence more students.
- Principals: focusing on best practices for effective leadership, particularly those practices used in schools serving students living in poverty.
- Adequate Resources: reviewing and analyzing the current finance system to assess its adequacy and equity; convening "focus groups" drawn from education and other state leaders to understand needs, interests and options for improving the finance system; and developing a plan to address resource adequacy requirements. Of particular interest to WestEd is efficient resource allocation.
The Plaintiff parties are pressing to ensure WestEd analyzes the specific resources essential for an adequate education, particularly for students in high poverty schools and school districts. Specifically, Plaintiff-Intervenors have proposed WestED make findings regarding shortages of qualified teachers and principals and the connection between those shortages and inadequacies in North Carolina's school finance system. They are also pressing WestEd to identify the essential staff, services and programs for low-income students, English language learners, and students with disabilities, and gaps in those essential resources - including preschool programs - in high poverty schools and school districts across the state.
Governor's Leandro Commission
In a separate but related development, North Carolina Governor Roy Cooper has established an Executive Commission on Access to Sound, Basic Education. The Commission will also assist WestEd in the development of the Leandro plan for the State to meet its constitutional education obligations. Importantly, the Commission will also be engaged in ensuring implementation of the remedial plan.
The Governor's Commission includes prominent education experts in North Carolina, including Dr. Fouad Abd-El-Khalick, Dean of the School of Education at the University of North Carolina at Chapel Hill; Mark Jewell, President of the NC Association of Educators; Dr. Helen F. Ladd, Professor Emerita of Public Policy and Economics at Duke University's Sanford School of Public Policy; Leslie Winner, former Executive Director of the Z. Smith Reynolds Foundation and former General Counsel to the Charlotte-Mecklenburg Board of Education.
In recent years, North Carolina public schools have experienced reductions in education funding, which, in turn, have triggered cuts in essential resources, including teachers, support staff and programs, especially in schools serving high concentrations of low-income students and students at risk of academic failure. Progress in expanding access to high quality preschool has also stalled. For nearly a decade, the constitutional violations in the Leandro rulings have continued without an effective remedy.
The judicial proceedings in Leandro, now underway to develop specific remedial measures to ensure all North Carolina school children their constitutional right to an adequate education, hold the promise of alleviating the chronic resource deficits and severe underfunding of the state's public schools. Judge Lee has established a clear process, with firm deadlines, for developing a concrete remedial plan for State action to guarantee that all schools have adequate resources to provide all children, no matter what their circumstances, the opportunity for a sound, basic education, as guaranteed by the North Carolina constitution.
Wendy Lecker is a Senior Attorney at Education Law Center
Tuesday, September 18, 2018
School funding formulas are one of the most arcane and obscure elements of public policy one can imagine. The only thing that comes close in my mind is the federal tax code. The federal tax code does, however, have some rhyme or reason to it. In those years in which I make more money, I pay more taxes. In those years in which I make less, I pay less. Yes, there are tax loopholes for certain capital gains, home depreciation, and the like, but the general rule remains the same.
School funding formulas can work in the opposite direction. Just because more money comes in does not mean that schools will get more. This is due largely to the way state government offsets its contribution to public education based on how much local districts raise in property taxes. In some states, the more the local district raises, the less the state spends. This might make some modicum of sense if we assume that the district has, and has had, the total amount of money it needs to meet the needs of students. But it is a brutally harsh system if that assumption is incorrect. It is like telling a malnourished kid that he will only get half a free school lunch today because the principal noticed that one of his friends gave him a biscuit for breakfast.
Well, this would seem to be exactly what the state of Texas plans to do--take money from needy school districts because their local property tax revenues are projected to increase without ever asking whether those districts have what they really need.
So lets start with the question of whether Texas schoolkids already have the resources they need. Bruce Baker and his colleagues' recent study of how much it costs for children to achieve "average" outcomes (which is probably lower than "adequate" outcomes) found that Texas is in pretty bad shape. In many states, twenty to forty percent of school districts have enough--and maybe more than enough--for students to achieve average outcomes. This is true in even relatively poor states like South Carolina and Oklahoma. It is the students in the bottom 60 to 80% of districts who are getting shortchanged.
But in Texas, everyone seems to be short on cash. According to the study, Texas districts that spend in the top 20% are still short $348 per pupil--not a huge number but a striking one given that these are the wealthy districts. At the other end of the spectrum, the study finds that the poorest districts are short $12,682 per pupil. That is the 5th largest deficit in the country. Only Arizona, Alabama, California, and the District of Columbia have larger gaps.
A few years ago, a Texas trial court examined whether funding levels in Texas were "adequate" to meet constitutional requirements. Its conclusions all but predicted the results of the foregoing study. The evidence in that case demonstrated that Texas schools were underfunded by $3.6 billion in 2010 and, after budget cuts, would be $6.1 billion underfunded in subsequent years. Prior state supreme courts had on several occasions ordered the state to fix gross underfunding, but in a surprising turn of events in 2016, the Texas Supreme Court decided that separation of powers concerns and new concerns about whether money matters dictated that it leave school funding to the legislature. The decision is extremely hard to square with all the increasingly precise and compelling evidence regarding how much money really does matter, but that is another story.
With no check on school funding levels, what is Texas planning to do now? A new story by the Texas Tribune offers this summary:
In its preliminary budget request ahead of next year's legislative session, the Texas Education Agency projected a drop in the state's general revenue for public education by more than $3.5 billion over the next couple of years, in part because the revenue from local property taxes is expected to skyrocket. General revenue only makes up part of the state's education funding.
Texas Education Commissioner Mike Morath confirmed this projection in front of a state budget panel Wednesday morning as he laid out the state agency's budget request through 2021.
The Foundation School Program, the main way of distributing state funds to Texas public schools, includes both state general revenue and local property tax revenue. Local property values are expected to grow by about 6.8 percent each year, and existing statute requires the state to use that money first before factoring in state funding.
Of course, advocates who understand school needs are none too happy about this.
[They] have pushed state officials to put more money into public schools, instead of absorbing local tax revenue into the system.
"The state needs to kick in their fair share," said special education advocate and parent Heather Sheffield to the panel Wednesday. "Property taxpayers are fed up with the fact that the state is not funding public education."
Texas, unfortunately, is not an outlier. As emphasized during teacher protests this past spring, most states continue to fund education at a lower level in real dollar terms today than they did a decade ago, which is strange given that their tax revenues are up. And this heat map from Baker's study shows where the underfunded districts in the country are. Anything not in green or light green is underfunded. Unfortunately, there is a a lot of non-green on the map.
But what this new story on Texas does clearly reveal is how states minimize education spending and the seeming irrationality of it. This suggests another problem: states don't appear to be willing to act in good faith toward education. Putting precise funding levels aside, the mindset with which states approach education is as important as where they ultimately land, as the two questions are inextricably linked. And so I warned this spring against thinking that state concessions to teacher protests represented a major change in policy. Yes, some new funds would flow to teachers, but the mindset toward education had not changed. A handful of state leaders were showing that they remained dead-set on carrying out their agenda, regardless of the bumps in the road they confronted.
Unfortunately, it is too often only courts that can trigger a fundamental shift, but Texas's court system seems to have abandoned its students.
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.
Saturday, May 19, 2018
North Carolina used to be remarkable for achieving the most integrated and stable schools in the nation. Save a couple of small exceptions, the state ran its school systems on a county-wide basis, which allowed more integrated, less white flight, and more shared interests in support of public education. This structure alone made North Carolina stand out. And this structure helped facilitate some of the lowest racial achievement gaps in the nation in places like Raleigh. North Carolina also funded it education system relatively well. Its teacher salaries, for instance, were right around the national average—in a state with a relatively low cost of living.
In the last decade, the state legislature has proven bound and determined to undo its successful public education system. First were budget cuts in excess of 20%. In a span of just three years, North Carolina reduced its per-pupil funding from over $10,015 to $7,235.
Next was the enormous growth of charters. Immediately before the recession, North Carolina spent $169 million on charter schools. By 2014-2015, the state had more than doubled its commitment to charters, spending $366 million a year.
Next was the attempt to eliminate teacher tenure. The state passed legislation to take it away from all teachers, although the state supreme court held that taking it away from teachers who already had it was unconstitutional. North Carolina was once a great place for teachers, but policies like these caused the rate of departure to other states jump by 30%.
Next was a voucher program. While seriously constitutional problems existed with it as well, the court allowed the state to move forward.
Next were huge tax cuts. While the state was cutting its education budget, it was also enacting massive new tax cuts for the state’s highest income earners. Those cuts were some of the largest state level tax cuts ever seen.
The state’s economy, however, has done well enough that it eventually began to produce tax revenue surpluses notwithstanding its low tax rates. The reason was that it was refusing to fairly fund public education. Even the poorest of states could run surpluses if they simply started eliminating state funded programs. North Carolina inexplicably maintained its education cuts in 2015 even though it had a half-billion dollar surplus in tax receipts.
Next was a change in the appointment process of statewide education officials. A lame duck legislature changed various rules to deprive the new Democratic governor of the authority to begin reversing regressive policies.
With policies like these, the question is not why North Carolina teachers are protesting, but what took them so long?
Wednesday, May 9, 2018
Large Teacher Salary Increases Reveal the Depth of States’ War on Teachers, Not a Commitment to Make Things Better
Are the raises that states have given teachers recently fair? The size of the raises ought to disturb the public not because teachers are reaping windfalls, but because they reveal just how dismissively states have dealt with education in recent years. And these raises—large though they may be—do not indicate that states will act differently in the future. Arizona Gov. Doug Ducey, for instance, supports a 20 percent pay raise for the state’s teachers by 2020, but also touts a school voucher referendum that could drain millions of dollars out of the public education system.
The raises started at five percent in West Virginia, then jumped to 15 and 20 percent in Oklahoma and Arizona. Teachers in other states are now expecting something similar and those states are surely asking themselves how much is enough.
Given that very few Americans have ever seen a raise of 15 or 20 percent, some are criticizing them for holding states hostage for salary increases that they don’t deserve. Others might think the raises are fair might and give states credit for “doing the right thing.” Neither is true.
These salary increases should not even be called raises. They are not pats on the back for a job well done, cost of living adjustments, or estimates of teachers’ market value.
They are closer to being compensatory damages that states are willing to pay now rather than the verdict that the jury of public opinion would award if it heard all the facts. The full picture of what states have done to public education and teachers, in particular, is shocking. The mistreatment of teachers stretches well beyond salaries to include changes to tenure, union rights, and statistical evaluation systems. Magazine covers called it a war on teachers.
Teacher salary increases don’t grapple with these other issues. They are just a partial payout to teachers. The teachers who are protesting have been underpaid for so long that they are far below their peers in neighboring states. But that understates the problem because teacher salaries have fallen nationwide. That’s why teachers in West Virginia and Oklahoma continued to march even after their states initially offered increases that would look generous to the outside world. Those raises would not repair the damage done.
Tuesday, May 1, 2018
Arizona Lawmakers Are Unrepentant, Slipping in New Money for Koch Brother Agendas When They Are Supposedly Fixing Teacher Salaries
While Arizona teachers may have shamed their lawmakers and pressured them to work faster on the budget, Arizona lawmakers are sticking to their playbook. In the middle of a massive teacher strike, the legislature found it fit to continue patronizing its most conservative elements--those in line with the Koch Brothers. AZ Central reports that nestled in Arizona's new budge is a $5 milllion earmark "for so-called freedom schools aimed at advancing free-enterprise ideals at Arizona State University and University of Arizona."
Five million is chump change in the grand scheme, but it speaks to a fundamental challenge in the state. The Koch Brothers have declared Arizona ground zero in the fight to reshape public education. They are heavily supporting a referendum this fall that would dramatically expand vouchers in the state. If it succeeds, the budget deal that Arizona makes now to increase teacher salaries could be undercut months later with a new law that makes many public teaching positions obsolete. In other words, teachers may get a raise, but there would be fewer of them if the voucher bill succeeds.
This earmark is a sad reminder of my reflections in the LA Times: State leaders may make public concessions to teachers in the short-term, but they are willing to change any rules necessary--including constitutional and democratic norms--to see that their anti-public education agenda succeeds in the long-term. I wrote,
Teachers are walking out again, this time shutting down campuses in 90 or more school districts across Arizona. Gov. Doug Ducey claims to be puzzled: He endorsed a plan to give teachers raises that would add up to a 20% pay increase over the next three years. Why would teachers walk out now?
Surely part of the reason is that teachers in Arizona know a concession on pay isn't the same thing as a genuine commitment to public education. State leaders like Ducey are so dead set on privatizing education or spending school funds elsewhere that they are ready to change any rules — even longstanding constitutional and democratic norms — to further that agenda.
The biggest norm of all — the very concept that states provide an education to all children — dates back to the 1860s. State leaders then believed that for average people — including African Americans newly freed from slavery — to exercise their rights as citizens, they had to be educated. And unless average people participated in self-government, the country could not live up to its democratic promises. Today, all 50 state constitutions, in one way or another, guarantee access to equal, adequate and stable public education.
Various constitutional mechanisms ensure states make good on this responsibility. For instance, most require creation of a state board of education, state superintendent or both. Those officials may be elected or appointed, but regardless of the exact process, the goal is to separate education decision-making from everyday politics. In North Carolina, for example, the constitution mandates "a politically and geographically diverse Board comprised of education experts who serve lengthy terms." The state's constitutional framers thought this would enable "the Board to place education above politics.
Many political leaders today, however, don't want to abide by these norms. Some even question the state's role in providing public education. If they can change constitutional norms, they can win the larger war over public education while conceding current skirmishes.
Kentucky offers the most recent example. Earlier this month, a statewide teachers strike led the Legislature to increase the education budget over Gov. Matt Bevin's veto. The loss did not deter Bevin. He just changed strategies. Last week, he had the state superintendent of education, who had more than a year left on his term, removed without cause. His handpicked board of education did the dirty work. The governor's favored replacement is someone from his own office who could be counted on to promote charter schools.
Other states have done the same. After the 2016 election in which Republicans lost the governor's mansion in North Carolina, the lame duck Legislature passed a bill to strip the state board of education of its power, transferring the authority to the superintendent's office, which was won by a Republican. Indiana lawmakers pursued a similar strategy in 2015 when the superintendent's positions conflicted with then-Gov. Mike Pence.
Courts stand as the final check on these manipulations. Where some are holding strong in important states, lawmakers are looking to amend their constitutions to fix that. The Florida Constitution Revision Commission — a panel stacked by and with Republican lawmakers — has just put an amendment on the November ballot that attacks public education on multiple fronts. It imposes term limits on local school boards and would let the state establish privately run charter schools over the objection of local school boards. Most insidiously, it would replace the requirement that Florida maintain a "uniform" system of free public schools with one that the Legislature provide for the "promotion of civic literacy."
Similarly, the Kansas Supreme Court repeatedly has found that the state is depriving students of their constitutional rights to education. In partial response in 2015, the state passed legislation to defund the judiciary if it continued to strike down the state laws. The state also stripped the court of its authority to appoint lower court judges. This year, Kansas legislators started calling for a constitutional amendment to deny courts the authority to hear school funding cases at all. The proponents went so far as to hold up the state's entire public education budget until they got a vote on the proposal. Only a looming deadline ended the standoff.
Arizona is ground zero in a fight to reshape public education led by billionaire industrialist Charles Koch and his network of conservative political donors. Last year, the state passed an expansive voucher bill that gave state subsidies for private school tuition. Now, the Koch network wants more.
At a policy conference in California in January, they announced plans to support a statewide referendum that could shovel even more taxpayer money into private schools. When they offered Gov. Ducey the podium, he was all in. "I didn't run for governor to play small ball. I think this is an important idea," he said. Next door, Nevada's state supreme court recently declared just this type of voucher idea unconstitutional because it put finding priorities for private education ahead of public education.
These tactics reveal that public education is under long-term assault, no matter what short-term concessions are won in Arizona or by other teacher protests. Education advocates must start guarding our constitutional and democratic norms in education as jealously as they are guarding teachers' salaries. Otherwise, they will wake up one day with nothing left to defend.
--on Twitter @DerekWBlack
Thursday, April 26, 2018
How States' Obsession with School Choice Is Fueling an Education Crisis--And Increasing Teacher Salaries Won't Fix It
States are favoring school choice at a steep cost to public education
Teacher strikes are generating a healthy focus on how far public education funding has fallen over the past decade. The full explanation, however, goes beyond basic funding cuts. It involves systematic advantages in terms of funding, students and teachers for charter schools and voucher programs as compared to traditional public schools. Increasing public teacher salaries may end the current protests, but speaking as an expert in education law and policy, I believe it won’t touch the new normal in which public education is no longer many states’ first priority.
My forthcoming research shows that, from funding and management practices to teacher and student policies, states are giving charter schools and private schools a better deal than public schools. These better deals have fueled enormous growth in charter schools and voucher programs that is now nearly impossible to unwind.
The most basic shift occurred between 2008 and 2012. Florida and North Carolina illustrate the nationwide trend. Each cut public education funding by 20 percent or more in three years. During the same period, North Carolina lifted its cap on new charter schools and quickly doubled its charter school spending. Florida similarly changed the rules for its voucher program and quadrupled its size.
Favorable funding practices
States also passed laws to offer charters and private schools more money for each student they took. Florida increased the value of each voucher by roughly US$2,000. Nevada went even further, passing legislation that would convert every single public education dollar into a voucher dollar. While the state Supreme Court later declared the program unconstitutional, it has not stopped other states like Arizona from pursuing similar programs.
Several states also began lifting income eligibility limits. Previously, states had provided vouchers only for low-income students. But new voucher programs made them available to wealthy students as well, even those who already had access to excellent public schools.
Charter schools benefited from similar advantages in some states. Ohio and New Jersey funneled charter school funding through school districts, but the states’ antiquated funding formulas and charter reimbursement rates force districts to send charter schools more per pupil than they receive from the state.
Pennsylvania has a similar scheme, but it has proven so lopsided that it expanded deficits in Philadelphia and nearly bankrupted the Chester School District. Chester was paying the local charter school roughly $40,000 per special education student, including for those students with relatively low-cost needs. Arizona took a simpler route. It shielded charter schools from the budget cuts it was imposing on traditional public schools.
Once they receive the money, charter schools and private schools receiving vouchers can spend it almost any way they want. Private schools operate just as they had before. And charter schools – though technically public schools – are exempt from typical financial oversight.
Laws require public schools to award contracts through a transparent process and prohibit public schools from entering contracts that pose conflicts of interest. Charters can award contracts to almost anyone they like – and on any terms they like. This includes awarding contracts to companies that have close financial ties with the charter. A person can start a purportedly nonprofit charter school and then have that charter purchase all of its services and supplies from a company owned by that same person. As a result, the person can turn a profit on staffing, facilities, technology and supplies. National Heritage Academies runs this exact type of business model in North Carolina and continues to grow its campuses.
The same activity could constitute fraud or criminality in a public school. Yet, state law permits it for charters. As Thomas Kelley’s analysis reveals, many of the charter schools that state law calls nonprofits would not qualify for that same label under federal law.
No checks on profiteering
Even well-meaning charter schools have been unable to stop this profit-taking. The Ohio Supreme Court, for instance, found that state law dictates that everything a private charter school company purchases with public dollars – from desks to computers – belongs to the private company, not the public. The same is true of buildings that charter schools lease. Charter school operators reap their largest profits through unreasonably high lease payments on buildings that the public will never own.
States also allow private schools and charters to treat students differently. While public schools must provide disadvantaged students with a host of special services, private schools take vouchers with almost no strings attached. And they are increasingly taking high-achieving middle-income and nondisabled students who cost less to educate and typically do not demand specialized services.
Charter schools’ advantages come in their ability to recruit students and cap enrollment. Public schools must serve everyone in their community. The clearest proof that charters don’t is in the data. For instance, Newark charter schools enroll less than half the percentage of special education students and English language learners as the Newark public schools. Newark charters also enroll significantly fewer low-income students. In North Carolina, charter schools are increasingly enrolling white students, while public schools increasingly enroll students of color. In Minneapolis, 80 percent of charters are racially isolated by race, socioeconomic status or both.
The most obvious advantage, however, is with teachers. Most states exempt charter schools from teacher certification requirements. Half exempt charters from complying with high-stakes teacher evaluation systems. More than three-quarters exempt charters from the teacher salary and collective bargaining rules. In short, states permit charters to hire teachers that would be deemed unqualified in a public school and pay them less.
The need for a structural shift
The current debate over school funding must move beyond teacher salaries and whether the books in public schools are tattered. Those conversations ignore the systematic policies that disadvantage public schools. Increasing public school teachers’ salaries alone won’t fix the problem. The public school teaching force has already shrunk. Class sizes have already risen. And the rules that advantage charter and private schools remain firmly in place.
Long-term solutions require a reexamination of these preferences. As a state constitutional matter, the law requires that states make public education their first priority. It is not enough to make education one of several competing priorities. And as a practical matter, states cannot continue to ask public schools to work with whatever is left over and then criticize them for doing a poor job. This cycle creates a circular justification for dismantling public education when states should be repairing it.
--on Twitter @DerekWBlack
Thursday, April 12, 2018
The largest protests of the past month have been over teacher salaries and benefits. Oklahoma teachers, however, stood tall and highlighted the lack of resources for students as well. Pictures of worn out text books went viral. The fact that students were learning from books so old that they previously belonged to the likes of Blake Shelton caught more attention. But none of them squarely confronted segregation and inequality. Thus far, they had focused on the fact resources in public education are too low in general. The truth is that some local communities are wealthy enough that they can shield themselves from states' disinvestment in public education. The net result of this dynamic is widening inequality. Wealthy communities can continue to increase resources while poorer ones fall further behind.
Students in DC public schools just went on their own strike (with teachers), highlighting the depths of the effects of segregation and inequality. Abel McDaniels offers this insightful reporting:
On Wednesday, teachers and students at Anacostia Senior High School in Southeast D.C. walked out to protest the facility’s poor conditions. Teachers said the cafeteria is flooded, no breakfast was served to students, there’s no running water, and bathrooms are broken, so some students were told to use bathrooms in a building three blocks away.
The need for this walkout exemplifies how the district has failed black neighborhoods and their schools. As one student told The Washington Post, “If it was any other school in the District, they would have closed school. That’s unsanitary.”
. . . .
Washington, D.C.’s public school system is just one example of how the impacts of racial segregation in our schools have been ignored. Not long ago, District of Columbia Public Schools (DCPS) was among the country’s lowest-performing districts. In 2011, just 58 percent of students graduated on time. Over the past decade, district and city leaders began an aggressive effort to improve the schools. The heart of this strategy was revamping the human capital system, and the district put in place new strategies to recruit, retain, train, and compensate teachers and leaders. They overhauled the salary structure to dramatically increase starting and mid-career salaries, and they provided strong financial incentives to high-performing teachers who chose to teach in schools serving low-income students. Today, a high-performing teacher at a high-poverty school in DCPS can earn over $130,000.
The district also implemented high-quality, free, universal pre-school and pre-kindergarten throughout the city. They implemented higher academic standards and embraced an annual test aligned to those standards. And they invested millions of dollars in renovating school facilities. The city also tripled the size of its charter sector (from 13 percent of enrollment in 2001 to 44.5 percent in 2016) and designed a unified system that families could use to enroll their children in both district or charter schools. In the years since, DCPS has seen rapid gains on National Assessment of Education Progress scores, earning it the reputation as the nation’s fastest-improving urban district.
However, as the protests today at Anacostia demonstrate, these reforms haven’t supported improved learning conditions across all district schools, in part because many neighborhoods remain highly segregated by race and socioeconomic status. In 2017, 66 percent of “priority schools”—where all students perform poorly—were concentrated in Wards 7 or 8, where most families are Black and low-income. The other 34 percent are spread across the six remaining wards, so other areas of the city, many of which have seen rapid increases in income and gentrification, do not have concentrations of struggling schools.
. . . .
Two elementary schools in Southeast D.C. show how inequities between district schools that serve white, middle class children, and those that serve low-income, Black students play out. Brent Elementary School is in the increasingly fashionable, gentrifying Eastern Market section of Capitol Hill. Two-thirds of the students there are white, and most students live in the surrounding neighborhood. Brent is a “rising” school: Roughly two-thirds of students performed in the highest levels of the PARCC assessment, which is the standardized test aligned to the Common Core State Standards. In a district where 77 percent of students are low-income, just 10 percent of the kids at Brent are.
Orr Elementary School is two miles away, across the river in the Randle Highlands part of Anacostia. Virtually all of Orr’s students are Black, and they are all low-income. In 2017, Just 13 percent of Orr students met grade-level expectations on the PARCC, and the school building itself is in disrepair. Students have had to deal with crumbling ceilings, outdated ventilation systems, problems with toilets, and vermin infestations—despite DC’s hyped investments in school facitlities. Many Orr students will eventually attend Anacostia Senior High, where the students walked out today in protest of similar conditions.
Read his full article here.
--on Twitter: Ed Law Prof Blog @DerekWBlack
Wednesday, April 11, 2018
North Carolina used to be remarkable for achieving the most integrated and stable schools in the nation. Save a couple of small exceptions, the state ran its school systems on a county-wide basis, which allowed more integrated, less white flight, and more shared interests in support of public education. This structure alone made North Carolina stand out. And this structure helped facilitate some of the lowest racial achievement gaps in the nation in places like Raleigh.
In the last decade, the state legislature has proven bound and determined to undo it all. First were budget cuts in excess of 20%. Next was the enormous growth of charters. Next was the attempt to eliminate teacher tenure. Next was a voucher program. Next was a change in the appointment process of statewide education officials, with the point being to deprive the new Democratic governor of the authority to begin reversing regressive policies.
Now the state is aiming at the lynchpin of equality and integration--the county wide school system structure. Without it, the entire education system could disintegrate into a thousand isolated pockets. See Pennsylvania's 500-plus school districts and 33% funding gap between districts for a glimpse of how disastrous this can be.
Bloomberg News offer a short summary of what is on the table in North Carolina:
On April 4, a little-known legislative committee met for the fourth time in six weeks in downtown Raleigh, N.C. Although its name is dull and obscure—the Joint Legislative Study Committee on the Division of Local School Administrative Units—its mission is anything but. The committee is the front line of a legislative push, led by statehouse Republicans, to dismantle North Carolina’s big countywide school districts by allowing rich, often white suburbs to secede.
Though it has no law allowing school secession, North Carolina is the latest Southern state looking to resegregate what’s left of the region’s integrated public schools. More than 60 years after the U.S. Supreme Court’s Brown v. Board of Education ruling made school racial segregation unconstitutional, school secession has been gaining momentum across the South, with richer areas trying to wall their kids and tax dollars off from big districts in Atlanta; Dallas; Little Rock, Ark.; Baton Rouge, La.; Birmingham, Mobile, and Montgomery in Alabama; and Memphis and Chattanooga in Tennessee.
Erika Wilson's article, The New School Segregation, offers a deeper analysis that explains this type of move within a broader context:
The South has a long and sordid history of resisting school desegregation. Yet after a long and vigorous legal fight, by the mid-1980’s, schools in the South eventually became among the most desegregated in the country. An important but often under appreciated tool that aided in the fight to desegregate schools in the South was the strategic use of school district boundary lines. Many school systems in the South deliberately eschewed drawing school district boundary lines around municipalities, and instead drew them around counties. The resulting county-based system of school districts allowed for the introduction of school assignment plans that crossed racially- and economically-segregated municipal boundary lines.
Affluent and predominantly white suburban municipalities in the South are threatening to reverse this progress. They are doing so by seceding from racially diverse county-based school districts and forming their own predominately white and middle-class school districts. The secessions are grounded in the race-neutral language of localism, or the preference for decentralized governance structures. However, localism in this context is threatening to do what Brown v. Board of Education outlawed: return schools to the days of separate and unequal with the imprimatur of state law.
This Article is the first to examine Southern municipal school district secessions and the localism arguments that their supporters advance to justify them. It argues that localism is being used as a race neutral proxy to create segregated school systems that are immune from legal challenge. It concludes by introducing a normative framework to evaluate the legitimacy of the localism justification for Southern school district secessions specifically, and decentralized public education governance structures more broadly.
--on Twitter: Ed Law Prof Blog @DerekWBlack
Monday, April 9, 2018
As Teachers Protest Across the Nation, Don't Forget the Court Ordered Deadline for School Funding Increases in Kansas
With the high drama of teacher strikes sweeping the nation, it is easy to forget about the long running and even higher stakes drama in Kansas. The Kansas Supreme Court has struck down the state's school funding formula so many times in the past few years that I have stopped counting. That is not critique of the Court. The Kansas Supreme Court has proven to be one of the bravest in the nation. It has been forced to deal with a state legislature and governor that simply refuse to comply with their constitutional duty to provide an adequate and equal education to students. The state has been so obstinate that it has threatened the judiciary itself with funding and appointment changes.
Many courts would have cowered. The Kansas Supreme Court went for broke, emphasizing that the state constitution does not bend to the predilections of temporary legislators. Its most aggressive step was to set deadlines, after which the entire state's school school system would shut down. The Court reasoned that the current funding formula is so patently unconstitutional that schools cannot continue to operate under it.
The current deadline is April 30, 2018. The state house and senate have been scrambling to enact a new school funding bill before they leave for spring break. Things were looking dire for a while. Legislators were floating amendments to the constitution that would prohibit the court from enforcing it. That alone was gumming up the process. But when "[t]wo top Republican legislators in Kansas [finally] dropped a demand that lawmakers move to curb judges' power before increasing spending on public schools," a solution looked like it might be in sight.
A $500 million increase (phased in over five years) was floated, but the Senate passed a measure that was only half that amount. Democrats charged that such a small amount was not even close to an amount that would end the standoff between the courts and the legislature. They were probably right, so the legislature worked over the weekend and passed a $534 million increase over five years. The Governor has already expressed support and will presumably sign it any moment.
The looming question is whether it is enough. The school funding study commissioned by the state initially found that schools needed about $2 billion more. A lot of assumptions are built into that number. Cheaper estimates suggest that the state needs to increase funding by approximately 1.2 to 1.79 billion dollars. Either way, $500 billion falls far short. The state is presumable banking on the fact that the lower number is what plaintiffs had initially requested. That, of course, was prior to any through examination of the schools' needs.
Stay tuned. The Kansas school funding battle is one for the ages and will generate any number of important case studies in the long-term. For now, check out this symposium on Kansas school funding and one of its first papers here by Josh Weishart.
--on Twitter: Ed Law Prof Blog @DerekWBlack
Thursday, April 5, 2018
West Virginia teachers recently went on strike to challenge salaries that are among the lowest in the nation and won. Teachers in Oklahoma and Kentucky are attempting the same, with rumblings that more states may follow. But these protests are really just a sign of a much bigger problem—states have been gutting public education on multiple levels for a decade. Public school funding is down dramatically. Voucher and charter funding is up exponentially. And brand new studies reveal that by cutting school spending by as little as 10 percent, states “reduced test scores” and graduation rates.
The biggest cuts to public education began during the Great Recession. Early on, teachers and families accepted that states had to make hard economic choices. But states soon did more than just balance their budgets. They increased funding for charter schools and vouchers at the same time that they were cutting public school funding. Between 2008 and 2012, Florida, for instance, increased voucher funding every year. During that same period, the state cut public school funding by 23%.
States also fundamentally changed how they treat teachers. Wisconsin restricted the influence of teacher unions. At least seven states passed legislation to eliminate teacher tenure. Dozens of other states imposed high-stakes evaluation systems on teachers. New laws required districts to hire, fire, and promote teachers—largely based on statistics. They scared so many teachers away that it eventually created a national shortage.
States have done little since the Recession to repair the damage. By 2012, tax revenues rebounded and are substantially up now. But thirty-one states are still funding education at a lower level than before the recession began. The worst offenders are more than 20% below pre-recession levels. Even states that modestly increased funding in recent years have done very little to help the neediest districts. In Pennsylvania, the poorest districts receive 33 percent less funding than wealthier districts. Some poor districts began the 2015-2016 school year by asking teachers to work for free. By 2016, Erie considered closing its school district permanently.
Had the attacks stopped, communities might have accepted a new normal. But several states threatened to cut deeper into the core of public education. In the last two years, states like Texas, Arizona, and Nevada took steps to permit the “voucherization” of the entire school system. Speaking of a 2017 law, the head of the Florida Charter School Alliance proclaimed, “[m]ore was achieved this year for the charter movement than . . . in a very long time.”
This seemingly limitless degradation of public schools pushed many communities too far. In Texas, families and teachers from across the state descended on the capital to protest a pending voucher bill. They could not accept the state adopting an expansive voucher bill without first addressing the basic necessities of struggling school districts. Before the protests, the voucher bill had sailed through the state senate. After the protests, the bill died in the state house by a vote of 103-44. Similar grassroots movements eventually stopped or stalled voucher and charter bills in other states like Massachusetts, Arizona, and Nevada.
The current teacher uprisings in West Virginia, Oklahoma, Kentucky, and elsewhere are no different. With state revenues consistently increasing, teachers cannot understand why their wages remain stagnant while health care costs go up.
These seemingly disparate states and issues converged in the fight over Betsy DeVos’s nomination for Secretary of Education. She came to symbolize all that has gone wrong in education in recent years. Teachers and parents overwhelmed Senators’ offices with visits and phone calls. With that opposition, the same republican party that had summarily confirmed Obama’s last Secretary of Education could only muster lukewarm support for DeVos. It took the Vice President’s tie breaking vote to put her in office.
DeVos’ slim confirmation should have served as a warning to West Virginia legislators who thought teachers would back down. And both of these events should serve as a warning to other states. The public school resistance is growing, not shrinking.
The vast majority of parents are now making it clear that they do not want to shop for a public school, much less drive their kids across town every day. And neither teachers nor parents want to hear about education cuts or strikes. They just want to trust government to carry out its responsibilities to public education. The problem is that, right now, they can’t.
--on Twitter: Ed Law Prof Blog @DerekWBlack
Wednesday, March 28, 2018
As of March 2018, school funding lawsuits challenging inadequate education resources, outcomes and opportunities, especially for at-risk students, continue in state trial, appellate and supreme courts across the country. States with active litigation or outstanding court orders include Arizona, Delaware, Florida, Kansas, Maryland, New Jersey, New Mexico, New York, Pennsylvania, North Carolina, Tennessee, and Washington.
As the nation's legal defense fund for public education rights, Education Law Center monitors, supports and, in some states, participates as counsel or as amicus curiae (friend of the court) in these lawsuits.
Below is a brief summary of cases in the states:
- Washington: In McCleary v. State (2012 and 2017), the Supreme Court has retained jurisdiction. After earlier decisions in this case, the legislature enacted funding reforms, which the court found insufficient to remedy the constitutional violations. On March 8, 2018, the legislature passed a supplementary budget that raises school funding significantly, believing that this change will satisfy the constitution's requirements.
- Kansas: As in Washington, the Kansas Supreme Court has retained jurisdiction in Gannon v. State (2014 and 2017). Also in March, the Kansas Legislature received an education cost study estimating the need for a $2 billion increase in school funding to meet student performance targets. The legislature faces an April deadline set by the Kansas Supreme Court to adopt measures to adequately fund K-12 education.
Both the Washington and Kansas supreme courts will review the legislative response for compliance with their respective constitutions and court decrees.
- Delaware: In January 2018, parents and other Delaware citizens filed the state's first constitutional challenge to inadequate school funding in Delawareans for Educational Opportunity (DEO) and NAACP Delaware v. Carney. The Delaware constitution requires the state to provide a "general and efficient system of free public schools." Plaintiffs are asking the court to declare education a fundamental right and that the current state financing laws violate students' right to the opportunity for an adequate education. The State's response to the complaint is expected in April.
- New York: In late 2017, ELC joined the legal team in NYSER v. State of New York, a pending case in which the parent plaintiffs allege that the State's chronic underfunding of their schools has deprived their children of essential education resources, including teachers, reasonable class sizes, social workers and interventions for at-risk students. The parents contend that the lack of essential resources and poor outcomes for students are the result of the State's funding failures. In June 2017, the Court of Appeals, the State's highest court, denied the State's motion to dismiss and remanded the case for trial. The NYSER parent plaintiffs are from the New York City, Syracuse, Schenectady, Central Islip and Gouverneur school districts.
In October 2017, in Maisto v. State of New York, the Appellate Division reversed the lower court's dismissal, after trial, of the parents' claims that their eight"Small City" school districts were unconstitutionally underfunded by the state. The Court reaffirmed the framework established in the Campaign for Fiscal Equity (CFE) rulings for analyzing claims of violations of the New York Constitution's Education Article. The Appellate Division remanded the case to the trial court for specific findings on inputs and causation.
- Pennsylvania: In September 2017, the Pennsylvania Supreme Court refused to follow prior court precedent and denied the State's motion to dismiss, in William Penn Sch. Dist. v. Pennsylvania Dep't of Education. The case is a challenge to inadequate resources, outcomes and funding in the state's higher poverty districts. The Supreme Court remanded the case for a trial on the merits. Legislative leaders opposed to the lawsuit have filed another round of motions to dismiss and block a trial on the merits. The motions were recently argued in the trial court, with a decision expected shortly.
- New Mexico: The trial in the consolidated cases Martinez v. State of New Mexico and Yazzie v. State concluded recently, and the parties await the trial court's ruling. The plaintiffs claim the State denies children's constitutional right to access equal educational opportunities resulting from a severe lack of quality teachers and leaders in schools disproportionately serving English Learner (EL) and low-income students. Plaintiffs also presented evidence that the State's failure to support and implement its own unique laws - the Indian Education Act, the Hispanic Education Act, and the Bilingual Multicultural Education Act - deprives students of the cultural programs that are essential to a sufficient education, as required under the New Mexico Constitution.
- Arizona: In May 2017, Arizona plaintiffs filed Glendale Elementary Sch. Dist. v. State, alleging the State's system for funding school facilities is unconstitutional. Plaintiffs won a similar case in Hull v. Albrecht (AZ 1998), resulting in the State establishing standards for school facilities and allocating funds to bring school buildings up to those standards. After tax cuts over the last ten years, plaintiffs claim that State funding is now far from sufficient, and many buildings have fallen below the standards.
- Florida: The plaintiffs in Citizens for Strong Schools (CSS) v. State of Florida have filed a petition in the Florida Supreme Court requesting review of a 2017 intermediate appellate court ruling. The appellate court affirmed a trial court ruling that claims under the detailed education article in the Florida constitution raise purely political questions left to the elected branches of the state government and, therefore, not appropriate for court adjudication.
- Tennessee: In 2015 and 2016, several Tennessee school districts filed lawsuits against the State, beginning with Hamilton County Bd. of Education v. Haslam and Shelby County Bd. of Educ. v. Haslam. The districts maintain that the State school funding system is inadequate and violates the Tennessee constitution. Motions to dismiss the complaints are pending.
- North Carolina: In 2017, the parties in the long-running school funding case, Leandro v. State of North Carolina (also known as Hoke County v. State), agreed to the appointment of an independent educational expert to devise remedies for the State's violation of its constitution by identifying additional steps the state should take to ensure qualified teachers, school leaders and resources to provide all North Carolina children a constitutional "sound basic education." The expert's report is due by the end of 2018.
- Maryland: In the 1990s in Maryland, parents and students in the Baltimore City school district filed Bradford v. Maryland State Board of Educ., alleging that the State failed to provide resources for students to meet contemporary education standards. Before trial, the parties settled and entered into a consent decree. That decree is still in force, and the plaintiffs are awaiting the results from a new commission, called the Kirwin Commission, to determine whether the state will address the chronic underfunding of the state's funding formula. Absent such progress, plaintiffs may move to reopen the Bradford case.
- New Jersey: Finally, in New Jersey, several key orders by the Supreme Court in the Abbott v. Burke lawsuit remain under implementation by the state. These include the court's 2008 ruling (Abbott XX) directing state implementation of a weighted student funding formula; the rulings in 2000 (Abbott VI) and 2002 (Abbott VIII) directing implementation of high quality preschool; and the rulings in 1998 (Abbott V) and 2000 (Abbott VII) requiring state financing of school building improvements. In the event of state non-compliance, these orders remain enforceable by the court on application by plaintiffs.
Molly Hunter, Esquire, is Of Counsel at Education Law Center
Tuesday, March 20, 2018
A new policy brief, authored by researchers at Rutgers University and released by Education Law Center, shows that most U.S. states fund their public schools at a level far below what is necessary for students in high-poverty districts to achieve at even average levels in English and math.
The full report, entitled "The Real Shame of the Nation: The Causes and Consequences of Interstate Inequity in Public School Investments," is the first of its kind to examine the relationship between school funding, student achievement, and poverty levels across all states and the District of Columbia in the United States. The report builds on the comparisons in state school funding systems in the "National Report Card, Is School Funding Fair?"
The report presents a new "National Education Cost Model" that uses a unique dataset of school spending, student achievement, student and family income levels, and other factors to construct estimates of how much states and school districts would need to spend for their students to reach the national average in English and math.
Among the key findings in the report:
- In numerous states - including Arizona, Tennessee, Alabama, Michigan, and Georgia - only the lowest-poverty districts have sufficient funding to reach national average student achievement outcomes.
- Mississippi, New Mexico, West Virginia, Nevada, and Louisiana spend so little that even their lowest-poverty districts can't reach national average student achievement outcomes.
- Only a few states - including New Jersey and Massachusetts - have higher levels of funding across all districts and have near-average outcomes, even in the highest-poverty districts.
- The cost of achieving national average outcomes in very high-poverty districts is three times higher - or $20,000 to $30,000 per pupil - than in low-poverty districts.
The report also debunks the common misconception of a nationwide "failure" in U.S. public education based on international outcome comparisons. When viewed from a state-by-state or district-by-district lens, there is wide variation in spending and student achievement outcomes, with strong performance in a few high-investment states and in low-poverty districts - even those in under-performing states - that rivals that of other high-performing nations.
Monday, March 19, 2018
Those who pushed the new federal tax law never stopped to seriously consider how it might affect key services at the state and local level. The cap on deductions for state and local taxes was about far more than whether the deduction favors rich or poor states. The intent of the cap may have been to fairly rebalance the interests of these states, but tax policy is never so simple. A cap on state and local tax deductions may have unintended consequences across the nation. One of the most significant loosers will be public education.
The largest chunk of state and local taxes go to support public schools. That money matters. Reviewing decades of data, a 2014 study found that a 20 percent increase in school funding, when maintained, results in low- income students completing nearly a year of additional education, wiping out roughly half of the graduation gap between low- and middle-income students. As to student achievement, a Kansas study conclusively showed that “a 1 percent increase in student performance was associated with a .83 percent increase in spending.” The debate over school funding is not whether money matters, but how to spend it on things that matter the most.
When federal law caps the deduction for state and local taxes, what it is really doing is creating a disincentive to fully fund educational needs. New Jersey, for instance, does not collect high tax revenues just so that it can buy newer and fancier police cars. New Jersey collects more tax dollars because the cost of education is higher there than most anywhere else in the nation. When people in New Jersey lose their federal deduction for state and local taxes, it will, as a practical matter, cost them more to fund education next year than it did last year. It will cost more because they will pay federal taxes on their state taxes.
Average and poor states will similarly find it hard to meet the needs of their most disadvantaged students under the new tax bill. Most people in these states won’t notice the cap on state and local deductions. But an important chunk of people will and those people are crucial to those states’ ability to fairly fund education. Because the cap on state and local deductions is a flat cap of $10,000 per taxpayer, it can hit high earners and land owners in any state. And those are the exact people who make what we call progressive school funding possible.
Monday, March 5, 2018
The West Virginia teachers' strike has been dominating the news as of late. I dare say no other local education news story of this genre has garnered this much attention in a few years. The only other comparisons that come to mind are the extreme teacher shortages in 2015, Pennsylvania's inability to pass an education budget between 2013 and 2015, and the Kansas courts' fight with the state over school funding since 2013.
What strikes me as different about West Virginia is how rapidly the story is developing and my expectation that the teachers will succeed. The news that the state appears to be on the verge of ceding to their demands sparked what should be an obvious point, but one worth making: teachers can accomplish more than courts.
I have spent the better part of my career focusing on education reform through the legal system--desegregation and funding equity in particular. The courts, however, always struggle to secure reform. Courts had to all but take over public schools to achieve desegregation in many jurisdictions and, even then, they needed school leaders to help.
School funding is arguably even more difficult. Courts cannot pass education budgets themselves and they cannot throw legislators in jail. The most they can do is order the shutdown of schools (a dangerous game of chicken) or fine the state (which it may or may not actually pay).
The most typical result in these fights, however, is a lot of foot-dragging by the state. In other words, no matter what, desegregation and funding litigation demonstrate that reform through the courts is a very slow process, even when it works.
West Virginia's teachers are showing how quickly they can make things happen when they put their mind to it. They have the leverage and courage of convictions that no others have.
The state, of course, resents this, which probably explains whey they are dragging this out for a few more days. Legislators probably assume that if they cave too easily they just invite similar efforts in the future.
There is probably truth and ignorance in such a notion. The ignorance lies in the notion that teachers would just do this on a whim. The vast majority of teachers care deeply about their students and don't just wake up and decide to shut down schools. It takes quite a bit of neglect to push teachers this far. Most just quit their job and move to another profession rather than take such bold moves.
And those that suffered the neglect in West Virginia thought deeply about their students before striking. They know that some students get their only meals at school. So before they went on strike, they made sure students had food, securing meals for students out of their own pockets.
Of course, this is nothing new. Teachers across the country spend hundreds of dollars a year to buy supplies for their students. Many go to extraordinary lengths to see that their students have clean clothes or maybe a gift over the holidays. And they do it quietly without complaint.
So I don't think West Virginia needs to worry about teachers being too self-serving. What West Virginia and other states need to worry about is teachers realizing the power they have to make a difference in public education policy. When states have attacked teacher tenure and other benefits in recent years, the response of teacher organizations has been to argue that what is good for teachers is good for students and that many of the most helpful reforms of the past two decades have come because teachers demanded it.
If teachers in the 26 or so states that have recognized a constitutional right to education fully appreciated what students are owed, they could achieve far more than any state supreme court. State legislators may threaten and ignore courts, but let's see them do that to teachers. State legislators only real leverage in a battle with teachers is the court of public opinion. I am guessing that when teachers act with righteous convictions on behalf of their students, they are going to win that one.
Friday, March 2, 2018
Joshua E. Weishart, Associate Professor of Law & Policy at West Virginia University College of Law and John D. Rockefeller IV School of Policy and Politics, offers this provocative analysis of the West Virginia teachers' strike:
Much was made over the past few days that the teacher strike has been unlawful. The attorney general was keen to remind state agencies repeatedly that his office stood ready to pursue legal action against the teachers. To be sure, during the last statewide teacher strike in 1990s, the West Virginia Supreme Court ruled that, because teachers enjoy no collective bargaining rights, they have no right to strike. Yes—they have no rights, because they have no rights. Traditionally, a strike by public employees was viewed as affront to the state’s sovereignty that could threaten public health, safety, and welfare by interrupting vital government services. That argument carries more force with, say, firefighters and law enforcement than teachers, who are not public safety officers, at least not yet. Of course, teachers do perform vital services, indeed, they perform constitutional services to nearly 300,000 children in our state. But that is the very reason why it was shortsighted to view this latest teacher strike as “illegal” in any true sense of the word.
From the moment the attorney general tweeted that the strike “is unlawful and should come to an end” (before it even began), the debate about the teacher strike has been focused on the wrong West Virginia Supreme Court decision. The consequential decision is not the one upholding the common law rule that teacher strikes are, strictly speaking, unlawful but the groundbreaking decision which held that children have a fundamental right to an equitable and adequate education under the West Virginia Constitution. Pauley v. Kelly was the first high court decision in the nation to define the right to education in substantive terms. Among other things, the court determined that the “thorough and efficient” education prescribed by the constitution requires good and competent teachers. Decades of empirical social science research, in fact, confirms that teacher quality is the most influential educational resource affecting student achievement that is entirely within a school’s control.
So, when noncompetitive salaries and benefits, teacher shortages, or the lack of professional development and support cause us to lose quality teachers, those unfavorable conditions, in turn, jeopardize our children’s fundamental right to education. Viewed from that perspective, the teacher strike was no more unlawful than the state’s dereliction of its own constitutional duty. To put things into further perspective, approximately 80% of public school expenditures are for personnel salaries and benefits. It’s not the school building or the textbooks that educate, it’s our teachers. And funding that education, Pauley held, is our state’s first constitutional priority, “ahead of every other State function.” In a footnote the court added, “The patriots of this State were never afflicted with an Appalachian mentality that finds nobility in ignorance.” In that spirit, the teachers who walked the line to provoke greater investment in our children’s education were not deviants engaged in “illegal conduct” but patriots who deserve our utmost respect and gratitude.
Wednesday, February 28, 2018
The past decade and a half has shown there is no limit to the number of education reforms that states and the federal government can churn out. I won't try to list them all. I will just note two of the most vicious: those aimed at public school funding and those aimed at teachers. States moved large sums of money out of the public school budget and into voucher and charter programs. On top of that, they just took a hatchet to bottom line for school funding. At the same time, they attacked teacher tenure, froze salaries, instituted high stakes evaluation systems, and sought to reduce the influence of teacher unions. The net result was to scare so many current and prospective teachers away that a nationwide teacher shortage developed in 2015.
In Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education, I outlined the short and long-term threats of these trends. But because I was basically tracking the problem in real-time, I indicated things might get worse before they got better. On the other hand, maybe I was being alarmist. It will take after-the-fact analysis by statisticians to reach any systemic conclusions. A new story out of Detroit reveals, however, that many students and teachers can feel exactly what is happening while the education reform world experiments and then looks backwards.
The Detroit Free Press offers this account:
The kindergartners at Palmer Park Preparatory Academy were shouting out words written neatly on small cards — correctly recognizing words such as "after," "red" and "look" — when their teacher Vanessa Parnell noticed a telltale sign that it was time for a classroom potty break.
"I see some of you wiggling," said Parnell, whose University District neighborhood school is struggling with large class sizes because of teacher vacancies in the Detroit Public Schools Community District.
And when you have 38 wigglers, taking a bathroom break isn't simple. Parnell must first spend time getting her class into two lines, then the students must traipse down a long hall, up a few stairs and down another long hallway to reach the middle school bathrooms. They take this long trek because the middle school bathrooms have more stalls than the elementary bathrooms — and saving time is important when you have nearly 40 students to get through.
It's just one of the frustrations Parnell faces every day managing a crowded class at this crowded school. Here, enrollment is up more than 100 students from last year — good news after years of declines. But a combination of teacher vacancies and building problems — illustrated by the four large buckets that were collecting leaking water in the kindergarten classroom on a recent day — have made classes swell.
Parnell said she and other teachers work hard to help students thrive despite "the hurdles and outside things that impede learning," and she worries that dealing with large classes impacts that work.
"It's extremely stressful, because I don't get to spend the one-on-one time that's needed with young children," said Parnell, who doesn't have a paraprofessional to assist her.
Palmer Park isn't the only school with large classes. The teacher contract establishes class size limits. In grades K-3, the class size is supposed to range from 17-25 students. In grades 4-5, the maximum is 30. And in grades 6-12, the max is 35 students.
Across the district, 14 out of the district's 115 schools have oversize classes — many of them with multiple classes that are too large. According to fall class data provided by the district:
-Nearly every K-8 class at Palmer Park is teeming with students. A third-grade class has 40 students, a sixth-grade class has 44 and a second-grade class has 39. The school's overall numbers have increased even more since fall.
-An eighth-grade class at Noble Elementary-Middle School has 52 students.A third-grade class at Bow Elementary-Middle School has 48 students.
-An eighth-grade class has 47 students.
-A fourth-grade class at Dixon Elementary-Middle School has 49 students, while a fifth-grade class has 43 students.
-A fourth-grade class at Mason Elementary has 45 students.Meanwhile, a sweeping report on school funding in Michigan that was released last month suggested 20 as the optimal class size for children in grades K-3.
There are now 178 vacancies in the Detroit school district, down from 260 at this time last year. But it's still enough to cause problems.
Superintendent Nikolai Vitti said a large part of the problem is the district's difficulty attracting teachers, a problem exacerbated by the fact that experienced teachers often must take a pay cut in order to get hired by the district. That's because under the district's teachers' contract, teachers hired receive credit for only two years of teaching experience. That can mean a pay cut for many.
This is why I prefer equity and adequacy to experimentation.
Monday, February 26, 2018
Joseph Oluwole and Preston Green just posted a proactive new paper to ssrn: Are California's Charter Schools the New Separate-But-Equal "Schools of Excellence," or Are They Worse Than Plessy?. "This article explains how charter schools provide California's black and Latino communities the opportunity to create modern separate-but-equal schools of excellence. However, they also pose a danger. Outside entities that prioritize financial gain are also seeking to offer charter schools to black and Latino communities. Unfettered charter school expansion spearheaded by these groups could further drain educational resources, thus creating a situation that would be even worse than Plessy v. Ferguson." They conclude with this:
California’s black and Latino children are being educated in public schools that are both segregated and unequal. In that respect, their experience is similar to the one received by black students in the aftermath of the Plessy case. If handled correctly, charter schools could provide a tool for the state’s black and Latino children to create schools of excellence in this setting– just like in the separate-but-equal era. However, their unregulated nature could enable outside entities such as EMOs to create schools that drain resources from the traditional public-school systems, thus creating a situation that would be even worse than Plessy.
Because of this analysis of California’s charter schools, the authors suggest that states enact the following safeguards to protect black and Latino communities. First, states should only permit school districts to be charter school authorizers. As the resource-center debacle shows, authorizers that are not under the control of black and Latino communities might be more interested in financial gain than in serving the educational needs of the students whom they are serving. Second, states should seriously consider banning EMOs from operating charter schools because of this same concern. Finally, states should allow school districts to base chartering decisions on their economic impact to serve all of their students. Communities that serve black and Latino communities already have limited resources. California’s experience with charter school construction financing shows that if districts do not have the power to accept or reject charter schools, they might proliferate in ways that will further financially compromise these districts.
Thursday, February 22, 2018
This from the Education Law Center:
The seventh edition of Is School Funding Fair? A National Report Card (NRC), released by Education Law Center today, again shows public school funding in most states is unfair and inequitable, depriving millions of U.S. students of the opportunity to succeed in school.
The nation's continuing failure to sufficiently invest in public schools stands in stark contrast to a growing body of research demonstrating that increased funding leads to better outcomes for students. Studies show that school finance reforms that increase spending in low-income districts result in improved student achievement in those districts and a narrowing of achievement gaps. In fact, these benefits have been shown to last into adulthood in the form of greater educational attainment, higher earnings, and lower rates of adult poverty.
The National Report Card (NRC) uses data from the 2015 Census fiscal survey, the most recent available. The NRC goes beyond raw per-pupil spending calculations by analyzing factors crucial to educational opportunity: whether states provide a sufficient level of school funding and then distribute that funding to address greater student need, as measured by student poverty.
The latest NRC results confirm a disturbing trend: almost no improvement since the end of the Great Recession in those states that do not provide additional funding to districts with high student poverty. There is also no change in the vast disparities in levels of funding for K-12 education across the states, even after adjusting for cost. The states with the highest funding levels (New York and Alaska) spend more than two and a half times what states with the lowest funding levels spend (Arizona and Idaho).
Key findings include:
- Funding levels show large disparities, ranging from a high of $18,719 per pupil in New York, to a low of $6,277 in Idaho.
- The ten states with the lowest funding levels - less than $8,000 per pupil -- include Florida, Mississippi, and Oklahoma. Three of those states, Arizona, Idaho, and North Carolina, provide less than $7,000 per pupil.
- Many low funding states invest a low percentage of their economic output to support public education. These "low effort" states include California, Utah, North Carolina, and Tennessee.
- Seventeen states, including Connecticut, Maryland, Maine, and Illinois, have "regressive" school funding. These states provide less funding to their higher poverty school districts, even though students in these districts require more resources to achieve.
- Students in the South and Southwest face a "double disadvantage" because their states provide low funding with no boost in funding for high poverty districts. States with flat or regressive funding include Alabama, Mississippi, and Florida in the Southeast, and, Arizona, Nevada, and New Mexico in the Southwest.
- Only a few states, including Massachusetts, New Jersey, and Wyoming, provide high levels of school funding and distribute more funding to their high poverty districts. Notably, New Jersey and Massachusetts are the top performing states on student outcomes.
- States with low or flat school funding have poor results on resource indicators crucial for students to succeed in school. In these states, access to early childhood education is limited; wages for teachers are not competitive with those of comparable professions; and teacher-to-pupil ratios in schools are unreasonably low.
"The NRC released today is a sobering reminder of why unfair school funding is the most significant obstacle to improving outcomes for our nation's public school students," said David Sciarra, ELC Executive Director and report co-author. "The stark reality is most states still fund their public schools based on pure politics, not on the cost of delivering quality education to all students."
"School finance reform is long overdue," said Bruce Baker, the Rutgers University Graduate School of Education Professor who developed the report's methodology. "It's long past time for states to develop, and then fund, finance formulas built on the costs of providing essential education resources, accounting for diverse student needs and local fiscal capacity."
Is School Funding Fair? A National Report Card is coauthored by Dr. Bruce D. Baker of the Rutgers Graduate School of Education; Dr. Danielle Farrie, Education Law Center Research Director; David Sciarra, Education Law Center Executive Director.