Thursday, January 16, 2020

Replacing Minnesotas Education Clause with Floridas Makes no Sense

Jvonkorff on Education has begun posting on the proposal to repeal Minnesota's education clause and replace it language from Florida and Louisana.   This is the second in the series.   Today's post looks at the claim that the new amendment would bring the benefits of the Florida constitution to Minnesota.  Based on the actual language of the real Florida constitution, and the Florida experience, this seems like a really bad idea.   As a reminder, once again, we agree completely with those who assert that Minnesota needs to make major changes in its education system, especially as it pertains to the students we have been leaving behind, students who are disproportionately lower-income students, students of color, students with dyslexia, and English language learners. However, the suggestion that the proposed constitutional amendment is going to power Minnesota to solve its achievement gap, based on what has happened in Florida, seems a bit misleading.

Advocates for the new amendment assert that Florida's educational scores have risen and that its achievement gap has improved, and they attribute that improvement to the adoption of an amendment to Florida's constitution, which they then claim will lead to similar improvements here in Minnesota if we adopt the amendment that they propose.    Hold on!  We don't pretend to be an expert in Florida's education system or its constitution.  On the surface, however, one is suspicious that the advocates are not being altogether straight in the differences between Florida's constitution and the clause that they are offering here in Minnesota. Here are some things we need to scrutinize if the new Minnesota proposal is going to get serious consideration:

(1) The proposed Minnesota amendment does not bring with it from Florida some of the main features of Florida's education clause. Why did the Minnesota proponent's leave those provisions behind?  In 2002, citizens approved an amendment to the Florida Constitution that set limits on the number of students in core classes (Math, English, Science, etc.) in the state's public schools. Beginning with the 2010-2011 school year, the maximum number of students in each core class would be 18 students in prekindergarten through grade 3;22 students in grades 4 through 8; and25 students in grades 9 through 12. Since 2003, Florida has allocated a total of $43 billion dollars to class size compliance, some for hiring more teachers, and some for adding new facilities because reducing class size requires more classrooms.

Although advocates for the new Minnesota amendment claim that they are bringing the benefits of the Florida constitution here, they are leaving in Florida the class size protections?  Why is that?  And, why are they so certain that it wasn't the class size provision that accounts for the improvements that they assign instead to the other Florida provision.

(2)  The Florida amendment that they are borrowing from (without the class size protection) begins as follows:

(a)The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require

(3)  The proposed Minnesota version would be somewhat different.  It would read:
All children have a fundamental right to a quality public education that fully prepares them with the skills necessary for participation in the economy, our democracy, and society, as measured against uniform achievement standards set forth by the state. It is the paramount duty of the state to ensure quality public schools that fulfill this fundamental right.
High quality is changed to quality.   System of free public schools is changed to public schools.   Uniform efficient safe and secure is expunged from the language. "Adequate provision shall be made" is removed.  Class size protections is gone; the high is removed from quality; "adequate provision is removed.  Uniform, efficient, safe and secure is gone.  Indeed, how can anyone possibly argue that we are getting Florida's constitution?  

(4)  These word changes make a difference   Under the Florida version, the State of Florida introduced a voucher system called the Opportunity Scholarship system designed to allow children to port their public support out of a public school and use them in private schools. In the 2006 case, Bush v Holmes, the Florida Supreme Court held that the words uniform and free prohibited the state from funding private schools.  The advocates for the Minnesota version have altered the Florida language by eliminating those words.   Clearly, the intent is to eliminate provisions that demand adequate state funding, but assure that the new amendment is a vehicle for state support for private schools. 

(5)  In the last decade many advocates have come to believe that even under the new Florida Constitution, the state is failing to make necessary investments in public education.   In January of 2019, the Florida Supreme Court finally decided the "Citizens for Strong Schools" case holding that the Florida "paramount duty" language did not impose an enforceable duty on the State.  Under the Florida language, which is more powerful that proposed for Minnesota, the Supreme Court has held that the legislature has discretion to spend what it wants to spend on Florida schools. 

It does seem that the amendment we are being asked to consider primarily eviscerates the constitutional rights that we now have in Minnesota, in return for a clause designed to allow students to opt-out of public schools and port their money to private schools.   Is there anyone out there who can talk me down from the ledge on this one?

Monday, January 13, 2020

Does Minnesota Need a New Education Amendment

This post begins a series to discuss whether Minnesota needs a new education clause to replace the old one that has served us for over a century.   What is wrong with the old amendment?  What benefits will the new one bring, and will we be losing any of the benefits of the old?   Do the proponents of the new have a transparent agenda? 

Let us begin by agreeing that Minnesota's education system is failing too many students.  Let us also agree that our leaders in both political parties and in the executive and legislative branches lack a bold plan to transform our current education system.  None of the last three governors --including the current governor -- have even hinted at a plan to transform Minnesota's public education system so that it works for the students that Minnesota traditionally leaves behind.  Something must be done, but the central question is whether this failure arises from the constitution itself and whether the new constitutional amendment would actually make things better.  Or, is it finally time for our governor to present the legislature with a bold plan to implement the constitution that we already have?

 Minnesota currently has a robust constitutional protection for our system of public education.   The current constitutional provision comes with specific language that was devised in the 19th century as part of a great national movement called the Common Schools Movement, associated with Horace Mann, and with the anti-slavery movement as well as the effort to revitalize our national democracy by assuring that all would be prepared for productive participation in society.   Many of the sponsors of this movement were abolitionists, and they envisioned that education would become available not only to working whites but also to former slaves.

 Minnesota's current constitutional education clause provides as follows:

 Uniform system of public schools. The stability of a republican form of government depending mainly upon the intelligence of the people, it is the duty of the legislature to establish a general and uniform system of public schools. The legislature shall make such provisions by taxation or otherwise as will secure a thorough and efficient system of public schools throughout the state.

 Like all constitutional provisions, the reach of this clause required interpretation over the years, but in 1993 and 2018, the Supreme Court afforded the clause binding interpretation that makes it more robust and meaningful than many of its peer clauses in other states.  A careful review of the language of the clause itself discloses several important features:

    (1)  The clause imposes a duty on the legislature.
    (2)  The clause requires the establishment of a general and uniform system of public schools.   
    (3)  The legislature must make provision by taxation or otherwise to secure that uniform system.  
As it happens, our Supreme Court has connected the education clause to Minnesota's Uniformity Clause, a part of our constitution that  is derived from the federal 14th amendment, which guarantees "equal protection."  Our supreme court has held that because the right to an adequate education is a fundamental right, legislation that impairs the fundamental right is subject to what the courts call "strict scrutiny." 

 Because we have lived with this existing clause, and because the clause is mirrored to a great extent in other state constitutions passed in the mid to late 19th centuries, there are many decisions interpreting the impact of similar clauses.  Important cases arising under similar clauses have been decided in Connecticut, North Carolina, Kansas, Wyoming, Colorado, Alabama, Pennsylvania, New Jersey, and many others.  Not all courts, however, have interpreted their education clauses to mandate the legislature to fund an adequate education.  In Minnesota, our Supreme Court has placed itself amongst the court that has held that the education clause imposes an enforcible mandate on the legislature because the clause affords a fundamental right.  The Supreme Court has held:

(a) that the requirement to create a uniform system of public education imposes on the legislature a duty to provide districts with enough funding to afford each student an education that meets all state standards;
(b) that the education clause does not guarantee equality of access to funding to provide education beyond that required by state standards
(c) that the eduction clause may extend to other defects in our uniform system, as for example claims that our school system is not providing an integrated education. 

Against a challenge by Governor Dayton's administration, as well, the Supreme Court has rejected claims that the constitutional clause is directed only to the legislature and has held that the constitution creates a fundamental enforceable right, that is so powerful that it supersedes legislative immunity.  The clause is a direction to the legislature and enforcible by Minnesotans against the legislature. 

  Under our existing Supreme Court precedent --- and this is very important --- the legislature establishes state standards, that is, what we expect school districts to deliver.    In Skeen v. State, the Supreme Court considered whether the Court should determine the requirements for a Minnesota adequate education. (Court decisions in some other states have recognized a constitutional function for the judiciary to set out the basic parameters of an adequate education.)  However, the Skeen decision defined a Minnesota adequate education under the constitution as one that meets the standards set by the legislature and by authorized state education regulations, and of course, applicable federal requirments.

Our constitutional framework as it happens has failed largely in the legislature and governor's efforts to comply with the education clause.   We've discussed that failure in a number of prior posts: but the overwhelming evidence is that the flaw in our education system lies in the lack of leadership in the executive and legislative branches to implement our constitutional education clause.

The failure of Minnesota to realize the promise of an adequate education for all children has led some to argue that the problem with our education system can be solved by a new constitutional amendment in place of the old.   A consortium of leaders has proposed an amendment that would read as follows:

 EQUAL RIGHT TO QUALITY PUBLIC EDUCATION. All children have a fundamental right to a quality public education that fully prepares them with the skills necessary for participation in the economy, our democracy, and society, as measured against uniform achievement standards set forth by the state. It is the paramount duty of the state to ensure quality public schools that fulfill this fundamental right.
There is much in common between the two clauses.  However, as we review this new proposal, it is important that we ask what is different in the new constitution.  The proposed amendment would supplant the old and so we need to ask what are we losing, and what are we gaining in return.   Presumably, the authors of the amendment believe that it will accomplish something that the old provision will not, and it is important as well to consider what unanswered questions are left to be explored.  

Along with the press release announcing the proposed amendment, the proponents delivered a somewhat loosely researched article purporting to show that similar amendments were passed in Florida and Louisiana, and that following passage of those amendments, those two states experienced substantial educational improvement.  Jvonkorff on Education is going to suggest that these claims ought to be scrutinized with a great deal of skepticism.  Indeed, it is very common for advocates for one reform or another to point to changes that occurred, even in Florida or Louisiana and assert that those changes are the cause of improvements in educational results.  Hurricanes have happened in both those states: if education improved after the hurricane, we can't assert that hurricanes cause educational scores to increase.

One difference between those two states and Minnesota is that both states did not have enforceable constitutional mandates like that of Minnesota.  So we ought to take a pause and subject the claims that doing what Florida did will make a difference for our children to deep scrutiny.  Another point that deserves mention is that if the current amendment is repealed and replaced, we will lose completely the benefit of the existing Supreme Court decisions.  We need to ask a number of questions then:

(1)  Who will be able to sue to enforce the new amendment, and who will they be able to sue?
(2)  What does it mean that the constitutional amendment states that the State has the paramount duty to provide an adequate education? Might that actually be read to mean that only the state itself can enforce the right? 
(3)  Will families be able to sue their school district to provide education even if the state fails to provide enough funding?  Are the skeptics right that this amendment is actually designed to provide a constitutional right to vouchers?
(4) If these amendments are modeled after Florida and Louisiana, how have the Florida and Louisiana courts implemented them?  Can a citizen in Florida enforce the constitutional right, or Louisiana?   Are we adopting an amendment from states that actually enforces their constitution more robustly than Minnesota, or are we copying a clause which the courts have held that the right is not enforceable against the state? 

For the Florida Supreme Court's interpretation of the constitutional provision see this summary of Citizens for Strong Schools.

We'll have more to say about these issues in coming posts?

Sunday, December 15, 2019

Will the Inn be Full in the Walz Education Budget

Minnesota has a long history of welcoming refugees and immigrants from across the world, with occasional aberrations during times of nativist sentiment.   Immigrants make our state and nation strong, and in the long run, they make major economic contributions to the welfare of the state.  Immigrants have made contributions in science, technology, and industry.  Their work ethic powered the iron range, agriculture, and the construction industry.  The authors of our constitution included a mandate to provide a uniform thorough and efficient system of public education with immigrants and English language learners in mind.  They believed that education was the "balance wheel of the social machinery," essential to our democratic tradition.  

It was in that spirit that Governor Walz rejected an invitation from the Trump administration to remove the welcome mat for refugees from Minnesota's front door.  Immigrants and refugees have become an important element of communities like Minneapolis, St. Paul, Worthington, Wilmar and St. Cloud.   Yet, next year is a budget year, and one wonders whether the Governor's budget will speak as loudly with action as he has done with his words.  

A study by the Association of Metropolitan School Districts estimates that as of FY 2016, the "English language learner cross-subsidy" in Minnesota school districts was about $100 million per year.   That's the difference between what school districts actually spend on ELL education and the amount of state funding provided to cover the extra cost of English language learner education.   However, that underestimates the difference, because most school districts are unable to offer programs that actually meet state standards.  This is especially true with what the state calls "Students with Limited or Interrupted Formal Education" (SLIFE), many of whom are refugees. 

In a recent court filing here in St. Cloud, the Walz administration and legislature told the state district court that the state has no constitutional obligation to provide what the administration calls the "extra cost" of affording English language learners, "students of poverty" and students with disabilities an education that meets state standards.  In essence, the Governor and Attorney General are saying:  the inn is not full in Minnesota, but please don't ask the state to pay for the cost of educating those students. 

There is no doubt that refugees and immigrants make a valuable contribution to Minnesota.  Decades ago, Minnesota provided many unskilled and semi-skilled jobs. But in today's economy, the educational demands are far greater.   If we want refugees and immigrants to provide the greatest possible contribution to our economy, it is essential that our schools prepare them for success.  Moreover, Minnesota's LEAPS Act demands that they do.  If Minnesota' is going to be a welcoming state, then Minnesota should ante up the cost of that welcoming, and not expect to shift the cost of education onto a few communities. 

Hooray for the Governor, in standing up for what is the best of a welcoming Minnesota.  Most educators by far agree with his position.  But in this first education budget of the Walz administration, we will have an opportunity to find out whether the Governor recognizes that the cost of providing English language learning is a state obligation -- as the constitution provides -- or whether he is expecting that the communities who welcome immigrants and refugees are on their own when it comes to providing that education.   For 25 years, the state has shirked its constitutional responsibility to provide the full dollar cost of providing state required education to English language learners (and to other students as well).   If Governor Walz really stands for an inn-is-not-full policy, he will include the cost of providing the state-mandated education to English language learners, instead of shifting that cost to the welcoming communities.

Saturday, December 14, 2019

SCERAC Asks Court of Appeals to Enforce Skeen's Funding Mandate

This is the first in a series of posts to explain the brief that St. Cloud Educational Rights Advocacy Council submitted to the Minnesota Court of Appeals.  The St. Cloud Educational Rights Advocacy Council is a group of parents, students, school board members (past and present), and community leaders who have been involved for years in trying to supplement the educational programs that the St. Cloud district cannot provide, because of the state's inadequate funding.  SCERAC members have worked for years to support education, and eventually, it was decided that the state was never going to act courageously, without a court decision enforcing Minnesota's constitutional education clause. SCERAC is relying on the 1993 Skeen decision, in which our Supreme Court held that the constitution provides a fundamental right to adequate education funding, which the Court defined as "enough funding" to afford "each student" with "an education that meets all state standards."  SCERAC alleges, what any educator knows, that Minnesota is not providing enough funding to provide the education that state laws, regulations, and policy require.   SCERA says that the current system violates the constitutional right established in the Skeen decision. 

The Skeen decision is a pretty simple--straightforward decision, at its core.   Skeen says that the State must provide enough funding to each school district to do the job that the State of Minnesota requires of all school districts.  That's not a very startling proposition!  The constitution requires the legislature to provide a thorough and efficient system of public education.  How could a system be thorough and efficient if it demanded that a school district must deliver an education that costs, say, $16,000 per student, but to do that with only $10,000 per student!  Listen:  we're having our home shower repaired because it's getting old and leaking.  Suppose hypothetically the craftsman who inspected the job told is that it would cost about $5,000 to put in a new shower fiberglass shower, or $2,000 more to put in a nice looking tiled shower.   Imagine we said, no, we demand that you put in a tile shower for $4,000:  imagine what he'd say.   How thorough and efficient would it be to require a craftsman to do home repairs at the price the homeowner demanded, without regard to the cost of labor and materials? 

That's what Skeen is about.  It says, the constitution requires the state to pay the full cost of what it demands a school district to do:  that is, the education that the state requires. 

The background of the Skeen decision begins with a lawsuit brought by the Association of Stable and Growing School Districts (ASGSD).   In 1988, a consortium of about 25% of Minnesota school districts brought an equity-based school funding suit, Skeen v. State, asserting that Minnesota’s constitutional education clause demands that all school districts deserve equal funding and that consequently, reliance on property tax based “excess levies” providing superior access to supplemental funding to districts like Edina and Minnetonka deprived the Skeen districts of an equal opportunity to this funding.   Skeen was what scholars call an "equity" suit: urging that the state had an obligation to fund all schools and districts equally so that all students would receive the same educational inputs.   You can read more about the equity theory in an article written by Jack Perry, a Minnesota lawyer, by clicking here.

However, in 1989, Kentucky’s Supreme Court in Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, announced an alternative constitutional funding test, one that required Kentucky to provide enough funding to afford all students with an adequate education.  See also Abbott v. Burke, 119 N.J. 287, 575 A.2d 359 (1990).  In their briefs to the Supreme Court,  Minnesota advocated against the application of an equal funding test and supported an adequacy foundation for Minnesota’s education clause.  Minnesota said funding need not be equal:  each district needs enough money to deliver an education to its students that state law requires.  The State of Minnesota's own brief thus argued for funding based on actually producing the desired educational results, telling the Court:
“The plain meaning of the Education Clause … is that the system of public schools must be similarly available to all students similarly situated, it must be a complete system, and it must properly produce the desired effects."
Thus, the Minnesota defendants advocated that adequate funding meant the amount needed to produce an adequate education for all students. The Minnesota defendants further argued that the Court should defer to the legislature to establish state standards, but that once having established those standards, the state’s funding obligation was to provide enough funding to meet state education standards. Like the craftsman discussed earlier, Minnesota recognized that you have to pay for the product that you demand.  

In making this argument, the State pointed to a stipulation entered in the trial court establishing that Minnesota’s current funding system meets all state standards.  The agreement stated:
All parties agree that….all of the plaintiff districts meet or exceed all educational requirements for themselves and their students established by the Minnesota Legislature, the State Board of Education, and the Commissioner and the Department of Education…..The parties agree that for purposes of this litigation all school districts in Minnesota meet state requirements set forth in statutes, rules and policies. 
That's the test, the State told the Supreme Court. Minnesota's funding is constitutional if it the state provides enough funding so that each district can "meet or exceed all educational requirements for themselves and their students established by the Minnesota legislature, the State Board of Education, and the Commissioner and the Department of Education." 

This brings us to an extremely important point in understanding the Minnesota Supreme Court's ultimate decision in Skeen.  The State itself (including the department of education and legislature) fought against funding equality for all students and districts because it recognized that different students require different amounts of resources.   The State said, look, it's not unconstitutional for some districts to spend more than others.  All that matters is that each district has enough money to provide an education that the state requires, and that amount may be different, from district to district, but the funding must be sufficient to meet all state standards.   If Minnetonka wants to provide an equestrian program for its students so that they can learn to ride, the constitution doesn't demand that all other districts need enough money to teach their students to ride a horse.

The above-quoted agreement became the foundation for the Minnesota Supreme Court’s ultimate constitutional funding standard.  The Supreme Court resolved the constitutional issues presented by deciding

(a) that the Minnesota Constitution affords a fundamental enforceable right to sufficient funding,

(b) that Minnesota satisfies its constitutional funding obligation if it provides enough “funding to each student in the state in an amount sufficient to generate an adequate level of education which meets all state standards.”  Skeen v. State at pages 315-316.

As it happened, the Skeen plaintiffs had agreed in their case that all districts had enough money to meet all state standards.  How can that possibly be, you ask!  Didn't we have achievement gaps in 1993 when Skeen was decided?   Of course, the answer is yes.  But in 1993, Minnesota's state standards -- its education laws, regulations, and policies -- focused on educational inputs, not educational results.   It was possible at that time for a district to meet state standards, while large proportions of our students did not receive what could possibly be described as an adequate education.  

In short, Minnesota’s mandatory standards at the time were not rigorous and they weren't based on what students must learn.  However, the State defendants told the Court that Minnesota's state standards were being changed:  the legislature had just decided to set standards based on outcomes, on what students must learn.  When the case was submitted to the Supreme Court, Minnesota defendants were worried that the Supreme Court might do what the Kentucky Supreme Court had done:  that is, to set judicial standards for an adequate education.   To reassure the Court the state specifically committed that the legislature was developing rigorous standards which would assure that all students would be held to high achievement-based standards, instead of undemanding input-based standards.  As promised, during the next decade, the State began to create a robust and rigorous set of state education standards that obligates each district to comply with proficiency and programmatic standards far more demanding than existed when Skeen was decided.  

As you can imagine, if you are thinking ahead, once the Supreme Court decided that the state must provide districts enough funding to afford each student with an education that meets state standards, why then it was going to cost more money to meet state standards, especially if those standards focused on what students must learn.   But as we shall see in the next post,  Minnesota did, in fact, adopt a set of rigorous standards based on what students learn, standards that radically increased the cost of delivering an education that meets state standards, but there was no corresponding effort to correlate state funding to state standards.  

Monday, November 4, 2019

Minnesotas Growing Special Education Deficit

In past blogs, we've discussed Minnesota's growing special education deficit.   In our last post, we displayed an MDE chart that makes the point that Minnesota's basic funding formula is losing ground to inflation.   These two charts, must be considered together, to get a more accurate understanding of what is happening to school districts.  As the special education deficit grows, districts must take more and more money out of their other revenue sources.    So, the basic funding formula is lowing ground to inflation, but at the same time, more and more funds are pulled out of basic formula money to help cover the growing special education deficit.

Replacing Minnesotas Education Clause with Floridas Makes no Sense

Jvonkorff on Education has begun posting on the proposal to repeal Minnesota's education clause and replace it language from Florida and...