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.

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