Saturday, September 3, 2011

School Finance Litigation: The Rose Decision

During the last several years, Minnesota's public education community has begun to form a consensus that the school funding system in Minnesota is fundamentally broken, and not just broken, but unconstitutionally broken.    The issue is not merely one of the distribution of funding, or the level of funding, it is more systemic than that.   We have a system that in many respects cannot be called a system at all, because the pieces of the system do not work together, and are not made to work together, in a rational coherent way.       The legislature and governor have established a system that forces districts to spend more than they receive in an irrational way that results in financial and educational chaos.

As we in Minnesota discuss what has happening to our system, and what must be done, we seek to understand better the efforts of other states to address constitutional deficiencies in their public systems.    Today, I'm posting about an historic constitutional case, Rose v. Council for Better Education, 790 S.W.2d 186 (Ky. 1989).    The Rose case was initiated by a council composed of 66 school districts.   The Council was joined in the litigation by the parents of 22 school children in bringing suit. They argued that Kentucky’s statewide school funding system violated the equal protection clause of the U.S. Constitution’s 14th amendment and Section 183 of the state constitution, which specifies that the “General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State” (Ky. Const. § 183).

You can read about the Kentucky experience in a 2009 publication, Substantial, and Yet Not Sufficient:   Kentucky's Effort  to Build Proficient for Each and Every Child , (The Campaign for Educational Equity, Teachers College Columbia December, 2009.)    In 1989, Kentucky's school system was suffering from very substantial statewide deficiencies that made it one of the most ineffective public school systems in the nation.   After the Court issued its decision in Rose, virtually every aspect of the State's educational system has been subject to major reform and restructuring.  To the extent that Kentucky has improved its performance, the consensus indicates that it was not just improved funding that achieved these results, but rather a systemic effort to implement structural reforms, and that these reforms resulted from the active participation of the executive and legislative branches of government, of the education community itself, of parents and business interests.

Let's look at the Rose decision itself  The Rose decision begins with reference to the Supreme Court's decision in Brown v. Board of Education.  "The goal of the framers of our constitution, and the polestar of this opinion, is eloquently and movingly stated in the landmark case of Brown v. Board of Education:"

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.”  Id., 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954) (emphasis added).
The Supreme Court found that the evidence presented in the trial court established that Kentucky's educational system was plainly deficient:
The overall effect of appellants' evidence is a virtual concession that Kentucky's system of common schools is underfunded and inadequate; is fraught with inequalities and inequities throughout the 177 local school districts; is ranked nationally in the lower 20-25% in virtually every category that is used to evaluate educational performance; and is not uniform among the districts in educational opportunities. When one considers the evidence presented by the appellants, there is little or no evidence to even begin to negate that of the appellees. The tidal wave of the appellees' evidence literally engulfs that of the appellants.,,,The achievement test scores in the poorer districts are lower than those in the richer districts and expert opinion clearly established that there is a correlation between those scores and the wealth of the district. Student-teacher ratios are higher in the poorer districts. Moreover, although Kentucky's per capita income is low, it makes an even lower per capita effort to support the common schools.  Students in property poor districts receive inadequate and inferior educational opportunities as compared to those offered to those students in the more affluent districts
Moreover, the court found,  "most of the witnesses before the trial court testified that not only were the state's educational opportunities unequal and lacking in uniformity, but that all were inadequate. Testimony indicated that not only do the so-called poorer districts provide inadequate education to fulfill the needs of the students but the more affluent districts' efforts are inadequate as well, as judged by accepted national standards."

The defendants in the case argued that the State had met its responsibility to provide adequate funding by granting local districts the opportunity to impose additional "permissive taxes," which could provide additional funding beyond the funding provided by the state.   These permissive taxes, however, were subject to local referendum repeal, and many districts were unable or unwilling to implement these supplemental taxes.  The Court explained:
The Court ordered  the legislature and executive to implement comprehensive and sweeping relief:
A child's right to an adequate education is a fundamental one under our Constitution. The General Assembly must protect and advance that right. We concur with the trial court that an efficient system of education must have as its goal to provide each and every child with at least the seven following capacities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii)  sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market. ......Lest there be any doubt, the result of our decision is that Kentucky's entire system of common schools is unconstitutional. There is no allegation that only part of the common school system is invalid, and we find no such circumstance. This decision applies to the entire sweep of the system-all its parts and parcels. This decision applies to the statutes creating, implementing and financing the system and to all regulations, etc., pertaining thereto. This decision covers the creation of local school districts, school boards, and the Kentucky Department of Education to the Minimum Foundation Program and Power Equalization Program. It covers school construction and maintenance, teacher certification-the whole gamut of the common school system in Kentucky. 
Following implementation of the Rose reforms, NAEP test scores on nationally normed reading and mathematics assessments increased substantially.  Critics of the decision argue that possibly these increases might have occurred even without the fundamental changes in funding and the structural and accountability changes that accompanied those funding changes, but the consensus in Kentucky is that the Rose litigation shocked the system, woke up legislators and the executive branch to their fiduciary responsibility to education, and resulted in groundbreaking reforms to Kentucky's educational system.

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