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.