Sunday, February 28, 2010

February meeting--a typical day in the life

I've been pretty busy the last days and so I've provided those of you who want a vacation from my posts a blessed release. I wanted to post a few thoughts on last Thursday's meeting. This post is a bit more mundane perhaps that previous posts, but I thought it would be worth providing a sample of a typical board meeting and the issues that we face.

Last Thursday's meeting addressed a number of important issues and concepts that the board has been facing. But first, we paused to listen to the Apollo Concert Choir, which had been selected to give concert to the Minnesota Music Teachers Association (MMTA) annual convention. We listened to selections from their program, and it reminded us of the importance of a strong music and arts program in our schools. Several students spoke to the importance of the music program, and specifically the revival of a strong choral music program at Apollo. Music is a deep part of our culture. One of its functions is to lift our spirits; another to remind us of our spiritual core, and this function is critical to the development of young people. It lifts them up; it keeps them going when times are rough; it reminds them during drudgery that there is something more important than their daily obstacles; it teaches them to follow leadership and to take personal responsibility; it teaches them that when people work together the whole can be greater than the sum of its parts. It shows them that people working creatively together can make something wonderful. For all the emphasis on basic skills, which of course is important, this idea that people working together can create something wonderful is an important idea best learned through the actual act of creation.

At Thursday's meeting we saw a brief presentation on the implementation of a new method of monitoring how we are doing as a district called vision cards.

While they are called vision cards, I like to think of them as objective progress criteria. Using this new device, the district has set strategic measurable objectives for progress in a variety of aspects of education. We'll be able to better measure "how we are doing," where we are improving and where we are not improving. This is a continuation of the District's efforts to implement the idea that you cannot progress unless you expose through objective measurable standards the things that you are doing well and the places where you fall short. To some extent, education has at times feared to be transparent about the areas where improvement is needed. This stems from a fear that the public will not understand anything but success. Especially now, when critics seize on every issue to attack public education, there has been a fear to present meaningful objective information. But we cannot make progress, nor can we marshal our internal resources to make needed changes, unless we maintain consistent meaningful objective data on how we are doing.

The purpose of these objective criteria is not to make us look good. In fact, one of our purposes is to identify areas where we must improve in a way that connects problems to solutions. The monitoring process that is being installed will be systemic, providing better data at the student, classroom, school and district level. If criteria make you look uniformly successful, then your criteria are not ambitious enough.

At Thursday's meeting we approved a budget adjustment strategy to address the continuing financial crisis facing our district and of course many other districts in Minnesota. The decision that we made basically says that our budgetary limits will not increase class size in order to settle labor contracts. It means that as we move forward, the district will not engage in layoffs to create additional funds to settle contracts. The budget strategy involves use of some one-time temporary measures, and we've given considerable thought to whether that is appropriate. You could make an argument that we should never do that. But there is another side to that argument and it is this: the State of Minnesota regulates almost all of our funding. The State has engaged in a variety of temporary funding shifts and other devices--so we school districts live in an environment where the people in St. Paul are creating conditions in which we are virtually forced to do things that we would prefer not to do. The State should have been maintaining reserves for circumstances like this. As I've said in the past, Republicans and Democrats have conspired to destroy our State reserves--by spending down the reserves or sending the reserves back to taxpayers to "give the people their money back." The result has been that the State has left itself in a position where it cannot meet its responsibility to maintain programs, as it should, continuously.

And so, we have to face these issues with a heavy dose of humility. Every choice that we make has negative aspects. You can make a good argument against any choice that we might make under these circumstances, and so we try to make the best decisions we can, under difficult circumstances.

At Thursday's meeting we tabled an expulsion action and that created a headline in the Times. These decisions are subject to privacy rules, and so we cannot discuss the reasons for individual actions. In a general way, one can say that Minnesota law requires Board of Education to engage in a certain level of scrutiny for expulsion decisions. I believe that these decisions are elevated to the Board level precisely to afford the Board of Education an opportunity to assure the public that each step is being followed so that we can assure that we are maintaining student safety and appropriate due process. It is our job to supervise this process and use it as a supervisory technique to make sure that we are fulfilling our primary responsibility to assure the safety of all students.

In the last months, we've been examining the mechanisms for receiving public comment at board meetings. Since well before I joined the board of education, the Board has followed a practice of taking comment during a short period before the meeting begins. We have felt, however, that this method has been fairly sterile. It is seldom used and when it is used, it is typically used in a way that doesn't generally advance our need to get useful information from the public. For this reason, we've been maintaining a discussion on what changes that we should make. Two weeks ago, we tried an alternative method of engaging the public on the topic of educational excellence for disadvantaged students. We spent 90 minutes in conversation with citizens which gave them opportunity to dialog with board members and other citizens.

We've also been exploring a process by which we bring panels of persons with expertise in a particular area that we would like to examine. Last year, we invited a panel of representatives of organizations dealing with early childhood issues, to discuss how we can do a better job in our community to encourage improved learning for children before they come to school. We found that presentation tremendously stimulating, because the people who appeared before us had varying experiences and perspectives, and because, well, they knew a lot about the subject. We're going to continue in the next few months to explore better ways to get meaningful dialog with citizens.

Saturday, February 20, 2010

Underfunded Mandate Reform: Are they serious, or are they just talking

Every year, the legislature looks at the question of unfunded and underfunded mandates imposed on local government, and this year is no exception. Next week, a legislative committee is scheduled to look at unfunded mandates in public education to see if something could be done to remove the financial burden that is breaking the backs of public school districts across the state. Each past year, however, despite the popular call for removing unfunded mandates, the State --Governor and Legislature--has done very little to reduce the unfunded mandate problem. In fact, the general sweep of the past decade, including even the current biennium, has been to add more underfunded and unfunded mandates, even while decrying them. At the bottom of this post I've provided examples of some of the major underfunded mandate requirements imposed at the state and national level. The list is not exhaustive. There are many more.

Now the underfunded mandate problem isn't simple to solve. Underfunded mandates arise for two major reasons. One reason is that there is a powerful interest group behind the underfunded mandate that is advocating for a costly solution to a real problem, but paying the cost for the new mandate will destroy the legislative majority needed to procure approval. Because there is no legislative requirement that an interest group advocate for funding to pay for the initiative, or even identify its cost, advocating for the mandate is more effective than advocating for the mandate and the funds. In fact, from the point of advocacy, if you are trying to get the legislature to approve something that is really important, the last thing in the world you would want to do is to tie your initiative to actually paying for it. Many very important initiatives have been successfully passed in this way. Mandate now. Figure out how to pay for it later.

Listen. The reason that unfunded mandates are so difficult to solve is that many mandate really good things with very powerful interest groups behind them. Often the interest groups are advocating for very important public-minded causes. Some mandates are designed to accomplish very important reforms that really need to be implemented. It is not always true that the solution to an unfunded mandate is to eliminate the mandate, although there are many where that is true. Often, the solution to the unfunded mandate problem is to fund it, or to make hard choices among mandates. So we need to acknowledge that the fact that the legislature mandates something is not always bad. The solution to good underfunded mandates is to appropriate the money to pay for it, or to make hard choices and reduce the cost of the mandate in some way.

The largest unfunded mandates in public education have very powerful interest groups important to legislators, and when we see legislators or the governor, talking about solving the unfunded mandate problem, usually they ignore these completely.

The second reason for unfunded mandates is that the governor and legislature have fallen into the habit of micro-manging public education. Partly, this is because the problems in education may seem so daunting, and the solutions so elusive, that its easier to work on little problems, rather than work on the big ones. Inherent in the legislative process is that in the months before session, legislators get calls and letters from constituents identifying something that they would like to change. One way to earn friends as a legislator is to introduce a bill to solve that particular problem.

Wouldn't it be fantastic if this year, something came of the resolve to deal with the underfunded and unfunded mandates problem in a meaningful way by focusing on the big ones, instead of the little ones. Here are a list of the underfunded mandates that really matter in Minnesota. And remember, some of these mandates are good mandates, or have a good purpose. But if we don't address the big ones, even though they have important public purposes, then we are evading the real conversation that needs to take place when addressing the underfunded mandate problem in education.

  • Special Education: The total unfunded cost of special education in Minnesota is over one-billion per biennium. This is an example of an underfunded mandate that has a very important purpose. But if you claim that a mandate is important, then you prove your commitment to its importance by paying for it. The special education mandate includes a huge state imposed mandate that requires districts to provide services beyond the level required by federal law. In our district the cost of that extra mandate--beyond federal services mandate--has been estimated at one-million dollars per year. If the legislative review of underfunded mandates does not include special education, then that's a sure sign that the purpose of the review is politics, not solutions.
  • Collective Bargaining and Labor Laws: This is another example of an underfunded mandate that has a very important purpose--assurance of decent pay for education professionals and other employees. But this year should prove that it is an underfunded mandate that is so powerful that it is driving school districts experiencing financial crisis to increase pay at a rate faster than legislative funding. Here is another mandate with the support of a powerful interest group. Paying teachers more is a good thing, but requiring districts to increase compensation costs faster than state funding increases is an unfunded mandate, and if the legislature wants to restore financial stability it needs to bring balance to this underfunded mandate by increasing the funding for labor settlements--which would have a positive impact on districts ability to attract and retain good teachers--or modify the mandate, so that it does not force school districts into financial failure.
  • Educational Outcome Mandates: In the last two decades, state and federal law makers have fundamentally altered the mission of public education, as I have described in prior posts, from a system requiring school districts to offer a set curriculum and opportunities to succeed, to a system that mandates that school districts must guarantee success for all students. Here is another worthy mandate, but it is a mandate with a cost. Saying to a district that Johnny must have an opportunity to learn decimals, fractions, word problems and algebra is one thing. Saying to a district that if Johnny does not learn decimals, fractions and algebra, you have to do something to make Johnny learn them, no matter what his motivation, ability or interest, that is an entirely different mission. I've listed some of these mandates below. They have been passed for really good reasons. I don't disagree with the mandates. I just say that you cannot change the mission without assessing the cost.
Let me say this one more time. I am not advocating for removal of any of the mandates I've listed above. They are the big kahunas in the mandate world. If you aren't talking about them, you are just pretending. What I am advocating is that if you want to have a thorough, efficient and uniform public education system, you need to pay for them, or modify them.
  • Minnesota Statutes Section 125A.03 provides that “every district must provide special instruction and services, either within the district or in another district, for all children with a disability,...... who are residents of the district and who are disabled as set forth in section 125A.02.” Under the statute, notwithstanding any age limits in laws to the contrary, special instruction and services must be provided from birth until July 1 after the child with a disability becomes 21 years old but shall not extend beyond secondary school or its equivalent, except as provided in section 124D.68, subdivision 2. Beginning in the school year 1999-2000 the State removed local levy support for special education and left school districts with hundreds of millions of dollars in shortfalls in special education, while failing to provide state funding to replace the lost local revenues. Currently the total special education mandate deficit--the difference between the state imposed special education requirement and the funds made available to meet this mandatory cost is about $500 million per year, or a billion dollars for a biennium, but over the next several years, the deficit is projected to rise to about $700 million per year.
  • The Individuals With Disabilities Education Act (IDEA) requires that federal funds “…may not be used to reduce the level of expenditures for the education of children with disabilities made by the LEA from (state and) local funds below the level of those expenditures for the preceding fiscal year….” (34 C.F.R. § 300.203). This requirement is referred to as maintenance of effort (MOE). The MOE requirements are a form of anti-supplanting provision that penalizes school districts if they accept federal support for special education while reducing total expenditures on special education. The impact of these provisions is to prevent the School District from reducing its total expenditures on special education. In other words, except in unusual circumstances, school districts cannot lawfully cut their total expenditures on special education in order to eliminate deficit spending.
  • The federal No Child Left Behind (NCLB) incorporated into state law by the legislature, requires states to develop plans to ensure that all students in all public schools are “proficient” in reading and math by the 2013-14 school year. NCLB sets an expectation that each student will meet or exceed the state's proficiency threshold by 2013-14, and it requires schools to make "adequate yearly progress" toward this goal. In 2004, the Office of Legislative Auditor predicted that absent significant changes, by 2014 from 80 percent to 100 percent of all public schools would fail to meet NCLB standards.
  • Among the miscellaneous statutes now imposing legislative mandates or establishing the current definition of an adequate education are: Minnesota Statutes Section 120B.12 (passed 2001) (able to read by second grade); Section 120B.13 (advance placement or IB opportunities) Section 120B.132 (passed 2006) (early preparation to increase participation in advanced placement or IB opportunities); Section 120B.30 (passed and regularly enhanced from 1997-2007) (minimum requirements for passage of state proficiency testing); 120B.35 (passed and enhanced from 1998-2007) (Student Academic Achievement and Progress); Section 120B.021 (passed 2003) (required academic standards); Section 120B.22 (passed 2003) (District must establish its own elective standards for world languages and technology education); Section 120B.023 (benchmarks; revised curriculum standards); Chapter 125A (special education).
  • In the last legislative session, the legislature passed a "maintenance of effort" requirement that prohibits school districts from reducing the number of counselors and other non-teaching licenced staff.

Tuesday, February 16, 2010

Let's talk about RITS, NWEA, and Progress-based testing

I want to discuss the use of MAP testing (Measure of Academic Progress) and RIT scores from the NWEA. This topic is important for parents, for teachers, and for people charged with evaluating the performance of schools and school districts. MAP tests provide parents and teachers with information on where each student is performing, and consistent measures of the amount of progress they are making over time. In the simplest terms:

Parents and teachers generally want to know two things, when looking at test scores: 1) Is my student performing at, above or below the expectation for their grade level (academic performance), and 2) Is my student making progress (academic growth) during the school year? MAP test scores help answer both these questions, but can be difficult to understand at first. MAP test scores (measures of academic performance) are different than other standardized testing scores, in that MAP uses "RIT" scores to place student's achievement into academic RIT bands that correspond roughly to grade levels.


At last Wednesday's Board Workshop the Board of Education listened to a a number of presentations on efforts to improving achievement among English Language Learners and what are often called "first generation learners." In my last post, I began a discussion on the implications of transforming education from a system which provides classroom opportunities to a system which is supposed to deliver all students to a pre-selected level of proficiency. In the old system, the one that existed when I was in school, the teacher delivered a pre-defined curriculum for each grade. First graders got first-grade math. Second graders got second-grade math, and so on. If a student fell behind, well, generally, that was viewed as just part of life. We didn't look at the teacher as having caused that problem. A teacher provided opportunities to learn. Students came to school, and they were either ready for her class, or they weren't, and if they weren't they fell behind and stayed behind.

That's
a bit of an oversimplification, I know, because of course, schools provided remedial instruction, and in later grades provided slow math for slow math students and fast math, sometimes, for fast math students. But the universe of education was built around the idea that students needed to take advantage of the standard curriculum. If you were behind, you'd better figure out how to catch up, or you'd be permanently behind. If you were ahead, find something else to do while you are waiting for the class to catch up.

Now in today's education, we are supposed to deliver all students to a pre-defined level of proficiency, as I have said. This has created a significant problem in trying to assess how a school, school district or teacher is doing. The temptation is to evaluate schools, teachers and school districts by the percentage of students who reach the predefined level of proficiency. The problem with that is that different students come to school with radically different levels of preparation. Comparing schools, without making allowance for the level of preparation would be like saying that pediatricians are better doctors than gerontologists, because the gerontologists lose more patients than the pediatricians. It would be like giving one teacher a class of students who can run really fast and another student a class of students who can run real slow, and arguing that the teacher whose class wins a relay race competition is a better teacher of running.

And so, in my last post, I said that one of the questions that we need to answer, that is the people who are responsible for the quality of our public education, is how to judge the amount of progress that is possible. If a teacher has a classroom of several dozen students who come to school already in the bottom 25% in terms of vocabulary, or in terms of other forms of school preparation, how are we to evaluate success in that classroom as compared to a classroom which has several dozen students who come to school already in the upper 25% in terms of vocabulary, or in terms of other forms of school preparation. And, if we decide that it is important that the children in the two classroom eventually reach similar levels of proficiency, how long should we expect it to take to bridge the gap, and what resources are required.

We need a way to find out how we are doing that truly assesses the progress that we are making. It should give credit where credit is due. If a student who is way behind makes significant progress, we want to recognize that progress, because it means that the combination of teacher, student and family are doing the right thing. If a student who is way behind makes little progress, it should not afford the student, the school, the teacher and the district an easy alibi: "well what do you expect, he was so far behind."

It is for this reason that many districts are moving to a new system of assessment that measures progress. The one that we have chosen is provided by the Northwest Evaluation Association. "NWEA has the unique ability to measure a student’s achievement and academic growth, independent of grade, across time. From the insight provided within MAP™ and its reports, educators can compare class or grade-level performance to students from a wide variety of schools across the country. Status norms provide a starting point for educators to review data. They get an understanding of where each child is, and needs to go. Having the right data is a key component in making learning more individual to each child. You can find out more about how the testing system measures student success by looking at this link: NWEA 2008 Norms.

NWEA fulfills a variety of objectives. It provides information to assist teachers in making sure that all students are learning. It provides valid information that measures the amount of progress that is occurring in a classroom. It rewards teachers for their students' progress rather than punishing them if they happen to have a large number of students who come into their class behind.

This is very important in a system that expects all students to progress to proficiency. In the old system, the teacher didn't have to adjust her curriculum to the student, because teachers provided predefined opportunity. But if you expect all students to make stellar progress towards efficiency, you have to find ways to address the educational needs of the students who are behind, and you cannot do that, unless you obtain early information on what the student knows and what they need to do to catch up. That's why an important element of the NWEA program is fall testing. For more information, click here:. Why is Fall testing so important?

When my kids went to school, and certainly when I did, tests came at the end of the year. The purpose was to provide information about what the student had learned, not to drive the instruction that the student would receive. But, in a system that has high expectations for all students, it is critical to find out where the student is deficient right at the beginning, so that something can be done immediately.

The NWEA test works in the following way. (See Teacher and Leadership Workbook: )

The NWEA computerized MAP tests provide teachers, students and parents with an accurate assessment of a student's ability, accurately measuring what a child knows and needs to learn. When administered at regular intervals over time, it is possible to find out whether an individual student, or an entire grade level, is making satisfactory progress in ...basic skill areas. Teachers can use this assessment information for instructional planning for individual students or an entire class.

Each student takes the MAP test on a computer......In the MAP system, the difficulty of the test is adjusted to the student's performance. That is, the difficulty of each question is based on how well the student has answered all of the questions up to that point. As the student answers correctly, the questions become more difficult. If the student answers incorrectly, the questions become easier. Within an optimal test, the student answers approximately half the items correctly, and half incorrectly. The final score is an estimate of the student's achievement level. Since each student in a class receives a different test, it is unlikely that two students taking a MAP test will see the same test items. In addition, a single student who takes the test more than once is not likely to have any test items repeated.

After a student completes a test, the program reports the student's RIT score. A RIT score in a given subject area shows the student's current achievement level in that subject. A student's RIT score should show growth from year to year, and since the MAP system keeps a record of all tests administered at a site, historical reports can be generated showing students RIT scores across years.


What is a RIT score.? See RIT Scale Explained: A ll of the tests developed by NWEA use the RIT scale to measure student achievement and student growth. The RIT score relates directly to the curriculum scale in each subject area. It is an equal-interval score, like feet and inches, so scores can be added togeter to calculate accurate class or school averages. RIT scores range from about 100 to 200. RIT scores make it possible to follow a student's educational growth from year to year.

That's it. I have to go. More on this topic next time I post.



Sunday, February 14, 2010

School Board looks at the learning gap!

At Wednesday's Board Workshop the Board of Education listened to a a number of presentations on efforts to improve achievement among English Language Learners and what are often called "first generation learners." A first-generation learner, as I use the term, is a person who is the first person in his recent family tree to reach a certain level of learning. I want to take a break from the posts on the Minnesota's Constitutional Education Clause for a bit and talk about this issue, sometimes called the achievement gap. When I return to that thread, we shall see if the two threads perhaps have an important relationship.

We know that students come to school with vastly different skill sets. Partly the difference is accounted for by the educational attainment of the parents. Partly it is accounted for by the family attitude towards learning, towards reading, and towards education as a road to success. One significant difference among children when they come to school is size and depth of vocabulary that a child brings with him to school. I pulled some quotes for this post off of an article by an author from the University of Toronto, but I could have pulled this information from the works of many others. For the original, click on this link:

By the end of grade two, children’s vocabulary already differs a great deal. English,speaking children whose vocabulary is in the lowest 25 percent know an average of 4000 root word meanings. Children with average vocabulary know about 6000 root word meanings. Children in the highest 25 percent vocabulary group know an average of 8000 root word meanings (Biemiller, 2005). Thus very large differences in vocabulary have developed in the preliterate period before children have had much opportunity to acquire vocabulary from reading. Even if children with low vocabularies add 1000 meanings per year after grade two (as many do), by the time they begin grade six they will have about the same size vocabulary as children from the top 25 percent had at the end of grade two. They continue to be an average of two grade levels behind average children in vocabulary—which shows up in the ranges of grade-equivalents seen in standardized reading comprehension by grade six. This is sufficient to make success in high school unlikely. (In fact, 30% of students are reported to “drop out” of high school in the U.S. Greene & Winters, 2006)
Sometime people frame this as a racial or economic issue, but its really a preparation issue.

"Students with inadequate vocabularies are at a much higher risk of performing poorly in high school, community college, or university (Hazenberg & Hulstijn, 1995; Cunningham & Stanovich, 1997). The source of these difficulties occurs very early in life. Young children with relatively small vocabularies comprehend less well. Because they comprehend less well, they often choose to read less. Over time students who read less acquire smaller vocabularies and comprehend less in later years (Stanovich, 1986). Children with smaller vocabularies will continue to lag behind children with larger vocabularies


Time and time again, research has shown that children who come to school "ready to learn," come with significantly larger vocabularies, significantly better "phonemic awareness," and come more used to staying on task when it comes to reading, writing, and other school skills. Students are coming to school with the benefits of family preparation for school in varying amounts, and the differences are very significant.

One source of these differences is vocabulary exposure in the home environment. Clearly, words that are not heard or read cannot be learned. Hart and Risley (1995) have shown that by the age of three, children living in advantage homes hear three times as many words spoken as children living in disadvantaged homes. Furthermore, in advantaged homes and some working class homes, parents actively explain word meanings in the course of conversation, story reading, etc. (Weizman & Snow, 2001; Hart and Risley, 1999). Thus it is not surprising that by age three children from advantaged homes already understand many more word meanings than children from disadvantaged homes.


This gap has in school preparation has always existed. In fact, the number of students coming to school prepared for reading was far smaller at the end of the 19th century than it was at the end of the 20th.

In 1940, more than half of the U.S. population had completed no more than an eighth grade education. Only 6 percent of males and 4 percent of females had completed 4 years of college. The median years of school attained by the adult population, 25 years old and over, had registered only a scant rise from 8.1 to 8.6 years over a 30 year period from 1910 to 1940. National Assessment of Adult Literacy.

If you are one of those people who think that this is no big deal--that kids are sort of blank slates when they come to school--and all they have to do is put on their thinking caps and learn, well may I politely and respectfully disagree. A major factor in the success of children is the level of preparation that they have when they come to school, along with the support for learning that they have at home. Now children can overcome disadvantages. Sure they can. But when they do, we say they have "beat the odds."

Now the greatest issue in education at the beginning of the 21st century has been whether we can effectively close the statistical gap amongst learners who come to school well prepared for learning and those who do not. As a society we have waded into this complex issue with little careful discussion about the magnitude of the challenge and the implications for how we deliver education.

We know that across the teaching profession in the United States there has been a sense that the general public, politicians, pundits, and yes, even school board members, lack a full appreciation for the demands that have been made upon teaching by a central shift in mission of the public education system. It has contributed to morale issues among many highly effective teachers. Part of the problem has been that children are not distributed among communities, among schools, and among classrooms within schools randomly. Some teachers, and some schools, and some communities have vastly more students who are well prepared and others have fewer. The major reason is that the distribution of first generation students as well as the distribution of families who are equipped to prepare their children to learn, is not equally distributed amongst neighborhoods and communities.

But the No Child Left Behind movement was predicated on the political judgment, or should I say the politicians whim, that simply by setting national goals, we could will away these differences. Under NCLB we would declare that schools with children who came to school unprepared for advanced learning would be called failing schools unless they eliminated these gaps in learning within a time period set by politicians in Washington and in the various State Capitols. No research was done to determine what changes, what resources, what different methods of instruction would be required to bring about this transformation.

Now don't misunderstand me. Evidence shows that there was within our education system a vast unrealized potential. We know that the pressure to leave no child left behind has resulted in progress. The progress has not been as fast as the politicians decreed by fiat at the beginning. But there has indeed been progress. We have discovered new strategies, new ways of delivering instruction, and restored some older methods which were tried and true to their rightful place in education, and this has made some considerable difference. But at the same time, there has been this assumption at the State and National level that teachers and schools and school districts are the only variable in how well, and whether, students succeed. As a result, some very fine teachers working in some very fine schools, have been branded as failures in the media because they have not been able to bridge the gap in pre-school preparation as fast as the politicians decreed.

One of the questions that we need to answer, that is the people who are responsible for the quality of our public education, is how to judge the amount of progress that is possible. If a teacher has a classroom of several dozen students who come to school already in the bottom 25% in terms of vocabulary, or in terms of other forms of school preparation, how are we to evaluate success in that classroom as compared to another classroom which has several dozen students who come to school already in the upper 25% in terms of vocabulary, or in terms of other forms of school preparation. And, if we decide that it is important that the children in the two classroom eventually reach similar levels of proficiency, how long should we expect it to take to bridge the gap, and what resources are required.

These aren't questions that can be answered by pulling them out of our ears, or wishing the answers. If you think you know the answer, well I'm betting you are wrong. I'll have more to say about this in my next post.

Sunday, February 7, 2010

Let's Look at the Skeen Case to understand Minnesota's Constitutional Education Clause

This is the fourth in a series of blog-posts exploring whether Minnesota's current financial system complies with the our State Constitutional requirements that the state create a general and uniform system of public education that is thorough and efficient. If you have read my prior posts, you will know that I've not been focusing on the argument that the State must increase funding by an amount that is pre-determined by judges of the Supreme Court. I've been arguing rather that the State legislature has a duty under the Constitution to establish a general and uniform level of education that can be delivered effectively throughout Minnesota. I assert that the legislature is primarily accountable to the people through the democratic process to determine that level of education, but that once the legislature establishes that level, it must then provide a thorough and efficient delivery system, properly funded--one that delivers what the legislature has decided is necessary.

My argument has been that the legislature has chosen a mandatory level of delivery and then established a system of funding and governance that is not uniform, not thorough and not efficient, but rather represents a politically convenient evasion of the constitutional responsibility. In the first post, I began a discussion of some of the various theories that have been considered in other states to challenge dysfunctional delivery systems. (Click here for First Post). In the second post, I began a discussion of the state-requirements that existed back in the 1980's when the landmark case Skeen v. State was decided. This is important, because we need to recognize that the state requires a radically different product from local districts today than it did in the 1980's and before. (Click Here for Second Post.)

I said that the state requirement was basically that the district offer opportunities to students (the must offer requirement) and that students must take a certain number of those courses (the must-take requirement). I said that there was no requirement that all students succeed in these courses or that they graduate to any level of state established minimum proficiency. In the third post I discussed the the radical change in the mandates established by the legislature over the last two decades showing that the legislature has created a vast array of minimum proficiency requirements which I call the "must-succeed" requirement such that students who come to school with profound disadvantages must nonetheless be educated to levels of proficiency, by state mandate. (Click here for Third Post)

Now I want to take you back to 1988, when the state requirements were "must offer," and "must take," so that you can begin to understand the holding of the Supreme Court in the key Minnesota education case Skeen v. State. Prior to Skeen, the Supreme Court had held that different governance structures might be used in different districts of the State without violating the Constitution. But the Court had repeatedly held that local option or local differences cannot impair what was the requirement of a uniform state system of education. As the Court stated in 1933:
Recognizing the existence of a limited local interest in the matter of education, this court so frequently has affirmed the doctrine that the maintenance of the public schools is a matter of state and not of local concern that it is unnecessary further to review the authorities at this date.


While it is proper to create local boards and local school districts, the Supreme Court has held, it is not proper to vest the responsibility to deliver public education in a school district or school board, but to deprive that board of the power to raise the funds needed to deliver public education. The Court has stated:

There can be no question of the power of the state to delegate the duty to provide education to a municipal body. This power of the Legislature is not exhausted by exercise. To insure ‘a thorough and efficient system’ of education (cf. State ex rel. Smith v. City of St. Paul, 128 Minn. 82, 91, 150 N. W. 389), the body to which that duty has been designated should be provided with the necessary funds or power to raise funds adequate for the proper performance of that duty. To place the duty to provide education in one board and power in another which has no such duty to prevent its performance runs contrary to the policy of our state with regard to education as expressed in the decisions of this court.


A system is not thorough and efficient when the legislature delegates the responsibility to deliver public education, but deprives that board of both the state funds necessary to deliver the required education and the the power to raise funds locally to achieve that purpose. Whenever I say that, I must keep reminding readers that I am not saying that the Constitution requires that local boards be delegated unlimited money or unlimited taxation power. The revenues provided, or the taxation authority provided, must be sufficient to fund the legislative purpose, given the reality of the powers provided local boards to manage their costs.

Now that brings us to our first close look at the Skeen decision. In 1988, 52 school districts and ten parents brought suit against the State of Minnesota, State Board of Education, and the Commissioner of Education claiming that certain components of the Minnesota education finance system were unconstitutional under the Education Clause of the Minnesota Constitution. Minn. Const. art. XIII, § 1 (“Education Clause”). The primary characteristic of these districts was that they had lower property tax bases than most other school districts. That meant that when they tried to raise funds to build new schools, or when they tried to raise additional funds to improve their programs with what were called, in those days, "excess levies", through a referendum election, they felt that they were at a distinct financial advantage. Now twenty-four so-called "high tax base" school districts intervened in the case--that is they jumped into the litigation voluntarily to protect their own interests.

The majority of the plaintiff districts belonged to the Association of Stable and Growing School Districts (ASGSD). These districts had been experiencing a higher than average enrollment increase, with their enrollment rising by 22% between the 1973-74 and 1987-88 school years. Meanwhile, state-wide enrollment declined by 12% over the same time period. Although the resident income and home values in plaintiff districts were somewhat above the state average, their school districts have property tax base per pupil unit (ppu) below the state average. For many, this was because they lacked strong commercial and industrial tax bases.

Although it is common to talk about Skeen versus State as an education case, actually it was an equality of taxation case, and fundamentally different rules apply to equality of taxation as compared to the right to equal delivery of state mandated educational programs In Skeen, the Districts were not contending that their students were receiving an unequal education to the students of other school districts. In fact, they told District Judge Meyer in Wright County who heard the case that they all offered an educational program that complied with Minnesota's state requirements. Their issue was that they felt placed at a financial disadvantage when they went out to their voters to raise additional funds to support special programs or to construct new schools. The Supreme Court noted that the Skeen case was quite unusual in this regard.

Usually, citizens sue the state about educational opportunity when they believe that their school district is unable to provide the education mandated by the State because funding is inadequate, or because the provision of those educational programs is fundamentally unequal in some way. But in Skeen, the districts who were asking for relief, were in many respects educationally better off than some of the districts that the plaintiffs felt were advantaged. As the Supreme Court explained
"Unlike challenges to state financing of education in other states, which frequently have been initiated by property-poor inner-city districts, this case does not involve the three largest metropolitan school districts, Minneapolis, St. Paul, and Duluth Although these districts contain the majority of AFDC and minority population, they also have the highest property tax base because the state places a higher property tax rate on commercial entities. In addition, this case is somewhat atypical because the small, rural districts also are not included. These rural districts, which represent less than 12% of the state's pupil population, comprise over half of the total number of school districts.
In the early federal equal protection cases, the plaintiffs came from districts suffering from profound poverty with grossly inequitable facilities and programs. In other funding equity cases, the plaintiffs came from districts with high rates of poverty, low rates of educational success, that were seeking adequate resources so that their students could have a fair shot at a high quality education, consistent with state minimum standards. But in Skeen, the plaintiff districts actually were succeeding quite well with the resources they had, based on the existing state mandates. They just wanted a finance system that they believed would be fairer to their taxpayers. The issue was not education--it was fairness in funding.

Now, this argument, that a levy in one district must raise the same amount of money per mil of taxation must raise the same school revenues as a mill in another was destined to fail. The school taxes in Sartell are quite different from the school taxes in St. Cloud (Sartell being much higher). The rate of taxation in Stearns County is different from Hennipen, Todd, and Crow Wing counties. Inequality of taxation in one area or another may be wise, but its not unconstitutional. To win their case, they needed to show much more, and this, in the Supreme Court's opinion, they failed to do.

I'll address the Supreme Court's reasoning in Skeen in my next post. But if you are following these posts, remember, the central problem that the legislature has not faced is the consequences of the decision to mandate a "must-succeed" educational system, instead of a must offer system that prevailed when Skeen was decided. In the must offer system, it was perfectly proper to expend the same amount of resources on all students. We weren't providing uniform proficiency; we were providing equal access to teaching resources and and an equal number of hours in school. The system that existed then tolerated, indeed presumed, that not all students would reach the same level of proficiency. Everyone got a diploma, but not everyone was prepared to be proficient to a given state standard.

Thursday, February 4, 2010

Education and the Constitution (3): State Minimum Proficiency Requirements Fundamentally Changes the Cost of Education

Yesterday, I posted my second in a series of items designed to explore the reasons why Minnesota's current educational system violates the Minnesota Constitution's requirement to "establish a general and uniform system of public schools" and to "make such provisions by taxation or otherwise as will secure a thorough and efficient system of public schools throughout the state.”(Link to yesterday's Post).

I said that this requirement should be considered as a multi-tiered process in which the legislature first decides what level of education is uniformly required. The test of whether the system is thorough and efficient throughout the state begins then with a legislative determination of what constitutes the basic education which is required at the State level. I pointed out that in the 1980's, the state imposed quite minimal requirements upon local districts such that it was possible for school districts arguing before the Supreme Court that they all had adequate resources to meet the minimum state requirements.

The fundamental difference between what the State required in the 1980's and what it requires now, is that the legislature has imposed a comprehensive and all encompassing set of statutory mandates which together completely turn upside down the old system. Recall that I said that Minnesota's previous state education requirements contained of a "must-offer" requirement, defining what courses a district must offer students. The must-offer requirement did not insist that all students, or even any students, would pass or take the offered courses successfully. They also contained a "Seat-Time" rule which required that students sit in class for a minimum number of hours, before graduation. There was also a credits-taken-at-a -passing- level requirement, but here again, there was no requirement that students learn at any minimum level of proficiency. And, the State mandate was not that all children take the courses: it was merely that if you didn't take the courses, you did not graduate.

When you look at today's requirements the fundamental difference becomes apparent. When a school is subject only to a must-offer and must-take requirement, the cost of educating every child is the same. A child who is several years ahead in reading in math enters first-grade and sits through a first grade class of, say, 25 students, soaking up whatever knowledge the teacher imparts. A child who is several years behind in reading and math enters first-grade and sits through the same first grade class of 25 students, and learns whatever he or she can learn under the circumstances. Under the must-offer/must take paradigm, each child costs the same, because there is no expectation that all students will reach the same level of proficiency.

On the other hand, when the State imposes a mandatory proficiency requirement that each district must educate all students, however they find them, to a state prescribed level of proficiency, now all of a sudden the cost of educating children varies significantly, and some districts have a much greater task set before them. You can call this a "must succeed" system, if you like, as opposed to the must-take system. Under a must succeed system, where every child must achieve proficiency, the cost of educating students varies with the circumstances of the child.

The Thomas Fordham Institute, a non-profit politically moderate think-tank focusing on education puts it this way: "Although we may wish that achieving this [proficiency] goal were easy for every student, numerous studies have shown that some students require more resources than others:
  • Some start behind because their lives prior to school did not provide them with the same educational opportunities as other children.
  • Some home circumstances present problems related to health, nutrition, parental support, and other conditions, all of which materially impact children’s performances.
  • Some have disabilities that lead them to require additional education services and attention.
  • Some are from homes where English is not the primary language.
  • Some are recent immigrants who had little formal education in their home countries"
Now listen, if you are about to tell me that you think that it costs the same is possible to educate a child who comes to first grade not speaking English from a family's whose parents lacks no formal education to the same level of proficiency as a child whose parents are college professors, or doctors, or otherwise highly educated, you are just engaging in wishful thinking. There is simply no data, none at all, to support that theory. Yes, here and there, you can find some kids who, as we call it, "beat the odds." But Minnesota has adopted a system which requires all local school districts to take all students to a high level of proficiency, whatever their level of literacy when they come to school.

You can argue that this every child must reach proficiency is a bad system. You can claim that we can't afford to achieve the goal of high proficiency for all students. But when you do that, you are not arguing with me: you are arguing with a decision that the legislature and the United States Congress, our Governor and three Presidents in a row, Democrat and Republican have imposed on us.

This change to a must-succeed system has major consequences for funding adequacy and funding equality. Despite the fact that the State has radically increased the level of mandated services, the State's investment in education per student, has not kept pace with inflation. This would be like deciding that from now on highways must be built with eight lanes instead of four, but making no change in the appropriation for highway construction. It would be like deciding that every city must double its police force, while prohibiting city's from spending more on law enforcement. The adequacy problem here is that the legislature keeps piling on more and more requirements, without adjusting the appropriation necessary to fund those requirements. You can argue, if you like with the increased requirements. But it makes no sense to pretend that you can move from a system that did not require proficiency for all students, to one that does, without major financial consequences.

The equity problem arises from the fact that different students now cost significantly different amounts of money to educate. Again, this differences arises from a change to the must-take/seat time state mandate, to the must succeed state mandate. As a result of the way our cities are laid out and the disproportionate concentration of educationally disadvantaged students in particular school districts, the cost of meeting the new state mandates is markedly different in different school districts. Unless the State adjusts its funding distribution to this new reality, some school districts are going to be placed at huge financial disadvantage.

This issue is not about who has to pay more taxes--the uniformity problem addressed in Skeen. The problem is that the State provides no mechanism at all to fund what the State mandates, even a mechanism that raises more money in some districts. The Districts who have the highest unfunded costs are reduced to seeking voter approval of an operating referendum to fund what the state mandates, and when the voters refuse, then the legislative mandate cannot be fulfilled.

The difference between the state mandated requirements on local districts when the Skeen case was decided is thus markedly different today. Let's take a look, then for a minute, at some of the recent requirements now imposed on local school district in today's Minnesota, so that we can begin to understand the radical difference in what the state now requires as opposed to the requirements that existed several decades ago.

  • Minnesota Statutes Section 125A.03 provides that “every district must provide special instruction and services, either within the district or in another district, for all children with a disability,...... who are residents of the district and who are disabled as set forth in section 125A.02.” Under the statute, notwithstanding any age limits in laws to the contrary, special instruction and services must be provided from birth until July 1 after the child with a disability becomes 21 years old but shall not extend beyond secondary school or its equivalent, except as provided in section 124D.68, subdivision 2. Beginning in the school year 1999-2000 the State removed local levy support for special education and left school districts with hundreds of millions of dollars in shortfalls in special education, while failing to provide state funding to replace the lost local revenues. Currently the total special education mandate deficit--the difference between the state imposed special education requirement and the funds made available to meet this mandatory cost is about $500 million per year, or a billion dollars for a biennium, but over the next several years, the deficit is projected to rise to about $700 million per year.
  • The Individuals With Disabilities Education Act (IDEA) requires that federal funds “…may not be used to reduce the level of expenditures for the education of children with disabilities made by the LEA from (state and) local funds below the level of those expenditures for the preceding fiscal year….” (34 C.F.R. § 300.203). This requirement is referred to as maintenance of effort (MOE). The MOE requirements are a form of anti-supplanting provision that penalizes school districts if they accept federal support for special education while reducing total expenditures on special education. The impact of these provisions is to prevent the School District from reducing its total expenditures on special education. In other words, except in unusual circumstances, school districts cannot lawfully cut their total expenditures on special education in order to eliminate deficit spending.
  • The federal No Child Left Behind (NCLB) incorporated into state law by the legislature, requires states to develop plans to ensure that all students in all public schools are “proficient” in reading and math by the 2013-14 school year. NCLB sets an expectation that each student will meet or exceed the state's proficiency threshold by 2013-14, and it requires schools to make "adequate yearly progress" toward this goal. In 2004, the Office of Legislative Auditor predicted that absent significant changes, by 2014 from 80 percent to 100 percent of all public schools would fail to meet NCLB standards.
  • Among the miscellaneous statutes now imposing legislative mandates or establishing the current definition of an adequate education are: Minnesota Statutes Section 120B.12 (passed 2001) (able to read by second grade); Section 120B.13 (advance placement or IB opportunities) Section 120B.132 (passed 2006) (early preparation to increase participation in advanced placement or IB opportunities); Section 120B.30 (passed and regularly enhanced from 1997-2007) (minimum requirements for passage of state proficiency testing); 120B.35 (passed and enhanced from 1998-2007) (Student Academic Achievement and Progress); Section 120B.021 (passed 2003) (required academic standards); Section 120B.22 (passed 2003) (District must establish its own elective standards for world languages and technology education); Section 120B.023 (benchmarks; revised curriculum standards); Chapter 125A (special education).
  • In the last legislative session, the legislature passed a "maintenance of effort" requirement that prohibits school districts from reducing the number of counselors and other non-teaching listened staff.
Let me provide some further detail from these statutes:

Minnesota Statutes Section 120B.12 provides Subdivision 2: For the 2002-2003 school year and later, each school district shall identify before the end of first grade students who are at risk of not learning to read before the end of second grade
. The district must use a locally adopted assessment method. The district must annually report the results of the assessment to the commissioner by June 1. Subd. 3. Intervention, requires that for each student identified under subdivision 2, the district shall provide a reading intervention method or program to assist the student in reaching the goal of learning to read no later than the end of second grade. District intervention methods shall encourage parental involvement and, where possible, collaboration with appropriate school and community programs. Intervention methods may include, but are not limited to, requiring attendance in summer school and intensified reading instruction that may require that the student be removed from the regular classroom for part of the school day. Subd. 4 provides that: Staff development, requires that each district shall identify the staff development needs to ensure that: (1) elementary teachers are able to implement comprehensive, scientifically based, and balanced reading instruction programs that have resulted in improved student performance; (2) elementary teachers who are instructing students identified under subdivision 2 are prepared to teach using the intervention methods or programs selected by the district for the identified students; and (3) all licensed teachers employed by the district have regular opportunities to improve reading instruction.

Minnesota Statutes section 120B.30 subdiv 1 (b) states: For students enrolled in grade 8 in the 2005-2006 school year and later, only the following options shall fulfill students' state graduation test requirements:
(1) for reading and mathematics: (i) obtaining an achievement level equivalent to or greater than proficient as determined through a standard setting process on the Minnesota comprehensive assessments in grade 10 for reading and grade 11 for mathematics or achieving a passing score as determined through a standard setting process on the graduation-required assessment for diploma in grade 10 for reading and grade 11 for mathematics or subsequent retests; (ii) achieving a passing score as determined through a standard setting process on the state-identified language proficiency test in reading and the mathematics test for English language learners or the graduation-required assessment for diploma equivalent of those assessments for students designated as English language learners; (iii) achieving an individual passing score on the graduation-required assessment for diploma as determined by appropriate state guidelines for students with an individual education plan or 504 plan; (iv) obtaining achievement level equivalent to or greater than proficient as determined through a standard setting process on the state-identified alternate assessment or assessments in grade 10 for reading and grade 11 for mathematics for students with an individual education plan; or (v) achieving an individual passing score on the state-identified alternate assessment or assessments as determined by appropriate state guidelines for students with an individual education plan; and (2) for writing: (i) achieving a passing score on the graduation-required assessment for diploma; (ii) achieving a passing score as determined through a standard setting process on the state-identified language proficiency test in writing for students designated as English language learners; (iii) achieving an individual passing score on the graduation-required assessment for diploma as determined by appropriate state guidelines for students with an individual education plan or 504 plan; or (iv) achieving an individual passing score on the state-identified alternate assessment or assessments as determined by appropriate state guidelines for students with an individual education plan. (c) The 3rd through 8th grade and high school level test results shall be available to districts for diagnostic purposes affecting student learning and district instruction and curriculum, and for establishing educational accountability. The commissioner must disseminate to the public the test results upon receiving those results. (d) State tests must be constructed and aligned with state academic standards. The testing process and the order of administration shall be determined by the commissioner. The statewide results shall be aggregated at the site and district level, consistent with subdivision 1a.

Other state mandates imposed include:
  • PELRA provisions which penalize a school district $25 per student if they fail to agree to terms with labor by a statutory deadline.
  • Health insurance provisions which prohibit school districts from changing health insurance coverage, and requiring them to include all retirees in group coverage, a requirement that increases the cost of insurance coverage state wide by hundreds of millions of dollars.
  • Minimum requirements for construction of school buildings substantially different from the standards applicable to private schools.
That's a lot of legislation, and you can follow the links above to look at the statutes themselves. There is a simpler way of looking at the fundamental difference between the approach to education today and the approach taken several decades ago.

In this series of posts, I have tried to introduce the topic of the Constitutional mandate under Minnesota's Constitution. I have explained that at one time, citizens in certain states tried to convince the federal courts that the federal constitution imposed a form of equality requirement on state governments and those contentions were rejected. (Ironically, since rejection of that proposition by the federal courts, the Congress has launched a series of initiatives legislatively requiring statewide minimum proficiency requirements, but without the funding required to implement that Congressional mandate. I explained that then in some states, such as Minnesota, courts addressed a different contention--that the State constitution required that there be a uniform funding system, such that the level of taxation in in each school district required to meet the statewide objectives would be uniform. I have yet to explain the Supreme Court's holding in the Skeen case, and I have yet to discuss the more recent challenges to school funding, the so-called "adequacy" challenge.

Wednesday, February 3, 2010

Minnesota's Education System Is Unconstitutional--the Change in State Minimum Basic Education

Yesterday, I began writing about the reasons why I believe that the current legislative provisions for education in Minnesota are unconstitutional. I said that this is a complicated subject. Its one of those issues that cannot be tied up into a neat little sound-bite. I promised to try to provide a series of articles explaining the legal theory that I expound that could be understood by non-lawyers. But I didn't promise that I could do it in a few sentences, nor did I promise that the issues could be understood without a bit of hard work. Today, I write the second post in the series. My goal today is to argue that the first job of the legislature is to define what is the basic education that all Minnesotans should receive.

This is a critical step in understanding the constitutional question. I did not say, nor would I ever argue, that it is unconstitutional for one school district to provide more programs, or different courses, than another school district. You cannot think clearly about this question, I believe, until you recognize that the legislature has a responsibility to define what education each district must provide. Once that requirement has been met, local districts can do more. I contend that the Skeen decision starts with that proposition: that it is primarily a legislative function, subject to public accountability of the democratic process, to tell local school districts what the definition of a state mandated education is. Now, if the legislature were to decide that school districts need not teach all students to read and write in basic English, that might present a constitutional problem of a different kind. But that is not a problem that we have right now. Our first job in understanding how the Constitution applies to the matter of public education is to recognize that the Constitution expects that the legislature will define what education is required.

Beyond that, I would argue, a district can decide to spend more money and offer more programs. The constitutional scrutiny applied to such differences is on an entirely different level than when some districts provide the mandated education and some do not, and when that difference results from the failure of the legislature to make provision for sufficient funding and sufficient power within the school board, to actually achieve that objective.

Now Minnesota's open enrollment system creates special problems in this analysis. Under an open enrollment system, a district that fails to offer amenities like football, baseball, yearbook, and a broad array of activities pays a huge penalty in student enrollment. And, the penalty it pays is the loss of students from families who care enough to invest in the time and effort to send their child to another district, and quite often, that creates an exodus from a district with financial challenges of the very students that the district needs to stay financially viable. This problem must be considered as part of the system that the legislature has created, and which it has failed effectively to address--the danger of the downward spiral. But this is something we can discuss in another post.

To think clearly about this question of what is the basic mandated education, one should begin with the education that the state required back when the Skeen case was being litigated in the District Court in Buffalo Minnesota. What we are going to discover is that there has been a radical change in the legislative definition of the basic education required for all students. I think that even long time educators have forgotten the magnitude of the difference. (Now as I use the word "basic" education, I am not here referring to the idea of a simple McGuffy's reader type education or a "back to basics" education, whatever that means. I use the term basic here as the education which the legislature defines as required of students across the state.)

At the end of the 1980's, the State of Minnesota had a very low minimum requirement for a 12th grade education! Most of us have no idea how little the State actually required of local school districts. Under the regimen that existed at that time, the state's mandatory graduation requirement consisted of three basic components:

  • A "Must-Offer" rule that required that every school district offer a certain set of courses to its students. This "must offer" requirement granted great latitude to local districts to offer a broad array of courses in the social studies, language, math and science, or a much narrower range of courses. It also granted great latitude to local districts as to whether it would offer challenging courses with great rigor, or whether the courses offered would be less demanding. If you don't believe me here, I suggest that you do some digging around and look at the State's statutes and rules at this time.
  • A "Must-Take" rule that required that every student must take certain courses in certain disciplines. But the course content requirements of these courses were almost entirely left open to local option, and students could meet this requirement by taking and passing the course at a very low level, a level that was locally defined.
  • A "Seat-Time" rule that required that every district require its graduates to take a certain number of course hours spread across certain disciplines. Although we tend to look back in hindsight believing that Minnesota was the "education state," and that surely the State of Minnesota required all of its students to take a rigorous set of courses and to demonstrate mastery of a common core of critical knowledge and skills, in fact, this is not true at all. By the end of the 1980's, it was lawful in Minnesota for a school district to graduate students who didn't know that there were two world wars, or the causes of the civil war, or who couldn't do more than cash register arithmetic. Local school districts could grant diplomas to persons who lacked minimal knowledge, or they could require high levels of proficiency. Minnesota was a radical local option state as a result of a decision of the Minnesota legislature that the State should not impose requirements of great rigor on local districts.
Now this meant that under state law as it existed when Skeen was decided, local districts were not required at the state level to produce graduates literate in math, science, literature, reading and writing. You cannot understand the Skeen decision without understanding this. In the next post, I will tell you that when the plaintiffs argued their case to the Supreme Court, all of the school districts seeking relief told the Supreme Court that their districts were meeting the minimum requirements of the State of Minnesota. They said, look, all of our students are doing well enough to meet state standards (which incidentally were extremely low). The Skeen plaintiffs were not arguing that they could not comply with State standards. They were arguing something quite different. They were arguing that an unequal taxation and finance system made it more difficult for them to comply. Skeen was at its core, an equality of financial resources and equality of taxation effort case, rather than a case challenging the State's failure to provide sufficient resources and local power to provide the State's mandated basic education at all.

Now, since Skeen, a number of major changes have happened in the legislative definition of what local school districts must provide. Today, in Minnesota, about half of the schools in the State are not meeting state defined proficiency standards, standards implemented in law. And the primary reason that this is the case is not, as some suggest, a deterioration in the level of education that students are receiving. The primary reason is that Minnesota law has set a vastly higher minimum state standard required for all students. And so, our constitutional analysis must begin with the fact that in Minnesota today, the state minimum requirements are fundamentally different than they were back when Skeen was decided. Now we still have a long way to go to understand this complicated issue. We need to look at these issues and quite a few more:

  • What are the state laws which today define the minimum required education that all school districts must provide. We will see that these laws are vastly more demanding than the laws that existed in the 1980's?
  • What is the third kind of constitutional litigation, called the "adequacy litigation," and is that really the right approach to understanding the constitutional infirmity in Minnesota today?
  • How are Courts dealing with the problem of local funding that depends on a referendum vote of the citizens of that District? Is it really constitutional for the legislature to let local citizens decide whether to provide funding sufficient to meet state standards? If it is, then what really is the meaning of the Constitutional guaranty?
  • What are we to make of a legislative system which purposely imposes mandates that intentionally cost hundreds of millions of dollars more than the legislature appropriates for this purpose?
  • Is there any requirement that when imposing mandated educational service, that the legislature can refuse to provide funding for that service and simultaneously deprive local school districts the power to raise the revenues that the State recognizes are required to provide that service?
  • Why is it commonly contended that launching a constitutional challenge is vastly expensive in legal and expert witness fees? Who is defining the strategy to launch a constitutional challenge, and is it possible that we are overlooking simpler less costly and more straightforward approaches?
  • What are recent cases in other States saying, and do they offer any guidance for Minnesota? What does the Skeen case say, and does it suggest that plaintiffs today might have a strong chance of prevailing, and if so under what circumstances?
We are a long way from being done. I want to come back to this fundamental point, however. I believe that the Constitution requires the legislature to follow a rational tiered approach to providing a quality education in Minnesota. The first step is to decide what a 21st education must require. This is a legislative function to which the Courts are going to afford substantial deference. The cost of public education, that is the education mandated by the State, will rise and fall to a significant extent based upon that legislative definition. As I write on this topic, some folks are going to say, oh, oh, he is trying to get the courts to raise our taxes. And the answer is no, I am trying to get the legislature to fund what it mandates and to give local school districts the power to deliver what the State mandates with the funds that the State provides. I'll talk about the next tiers in a future post.

What is not constitutionally acceptable, I believe, is for the legislature to mandate that all school districts provide a particular level of education to all students, but then to grant some school districts more than adequate funding to meet that objective, while depriving other districts of that same ability by providing insufficient funding.

Tuesday, February 2, 2010

Minnesota's Education System is Unconstitutional Part I

The education clause of the Minnesota Constitution states:
“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.”
I have believed for several years that the current system implemented by the legislature and governor for now the last decade or more does not meet this mandate. Recently, more and more people have contacted me to discuss whether it is the appropriate time to put that contention to the test through litigation. Throughout the education community in Minnesota, there has been a pervasive belief that the Supreme Court's Skeen decision created a difficult hurdle to overcome to challenge our dysfunctional educational system. For several years, I've been reading and studying the course of litigation in other states, and I've been trying to square what we do here in Minnesota with the evolving role of education in our society. The more I read, the more research I do, the more I become convinced that our current system, especially as applied in some specific school districts in Minnesota, simply cannot pass muster under our Constitution or under the test laid down by the Minnesota Supreme Court in its Skeen decision.

In today's blog post, I'm taking a break from several other threads to explain my views on this topic hopefully in a way that educators and non-lawyers will understand. If I were writing for lawyers, my post would contain a string of constitutional decisions from more than a couple dozen states. My laptop research folder on constitutional litigation is filled with dozens of law review articles, state Supreme Court decision and think-tank white papers. I'm going to try to simplify a very difficult subject.

Scholars often attempt to place the various constitutional challenges in tight categories. One of my primary contentions will be that this separation of cases into one category or another is fundamentally the wrong approach to understanding our constitution's mandate. To understand what I mean, first one has to understand the three standard categories as described by scholarship in this field. The first category is classified as the federal equal protection litigation. These first challenges began with the premise that education is a basic constitutional right, akin to freedom of speech, or freedom from racial discrimination, and that the 14th Amendment to the United States Constitution bars any state from providing unequal access to that right. These cases harken back to the language found in Brown vs. Board of Education where it stated:
Education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.Brown vs. Board of Education, 347 U.S. 483, 493(1954).
The problem with the federal equal protection challenge to state educational systems is that it inherently injects the federal government and federal courts into what historically has been a state responsibility. However, in 1973, the Supreme Court of the United States ultimately rejected the theory that the equal protection clause of the fourteenth amendment commanded the federal courts strictly to scrutinize differences in educational funding within a single state. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973). But the Rodriguez case should never be misconstrued to suggest that the federal courts were granting clearance to the State Courts or State Legislatures to ignore their own state constitutional mandates. On the contrary, by removing the federal courts as an avenue for enforcement, the Rodriguez decision made it even more imperative for state legislatures and state courts to honor their constitutional imperatives.

The second traditional category of funding challenge is as federal courts began to reject the idea that federal judges should interfere with state educational systems, a second brand of funding litigation focused on funding equality as a violation of the state constitution. These litigations advanced the theory that each local school district had a right to equal access to funding resources. They focused on inequality of local taxing resources and demanded that the legislature equalize the revenues, or at least the tax base available to fund local schools.

This so-called “second wave” of litigations has been described by Professor Reich of Stanford University as follows:

The essence of the claim in second wave cases, according to the wave typology, was the equity of school funding schemes. Courts primarily sought to achieve either so called "horizontal equity" across school districts such that per pupil revenues were roughly equalized by the state. Alternatively, courts sought so-called "fiscal neutrality" such that the revenues available to a school district would not be solely dependent on the property wealth of the school district. Instead, funding between school districts could be unequal, but the inequality would be a product of the democratically-decided preference of a locality to tax itself at a high or low level and not the property wealth of the locality. Equality and Adequacy in the State’s Provision of Education: Mapping the Conceptual Landscape (2006).
The leader in developing the equality approach to school finance was the New Jersey Supreme Court. Through its decisions in Robinson v. Cahill (1973-1976) and Abbott v. Burke (1985-2005), the justices of New Jersey's Supreme Court have defined the state's constitutional guarantee of a "thorough and efficient" education, set parameters for how the state's urban schools should be funded, and provided guidance on how education dollars should be spent in these communities, called the Abbott districts.

Our own Minnesota
Skeen decision represented an attempt to bring a unique brand of second-wave litigation challenging equity in the taxation system, and in my next post, I will try to explain why the Skeen decision failed to provide relief to the claimants in that case, and yet offered significant legal authority for challenges to today's dysfunctional state educational finance system.

Links: Discussion of
Skeen Decision in the District Court before Appeal: