“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: