Sunday, December 23, 2012

NRA Advocates safety of Weapons of Mass Murder over Safety of Children

I listened Sunday to Wayne LaPierre on Meet the Press.   He said that he was presenting a plan to make school children safer, but that claim was a gross deception.   He was presenting a plan to save the private unregulated ownership of so-called semiautomatic weapons and large capacity gun clips.  He was advancing a message designed to protect the sale of weapons capable of committing mass murder.   If you read the transcript of his interview, it became abundantly clear, that between the safety of children and the vision of unregulated weapons of mass killing, the children came second.   Repeatedly, Dennis Gregory asked whether the NRA could support regulation of weapons of mass killing and repeatedly LaPierre found ways to change the subject or to answer, in so many words, "No, not even if it would make kids safer."    The weapons are more important than the kids, he said, in all sorts of ways.

You're being unfair, Jerry.  The NRA proposal is a contribution to the safety of children., you say?   How can you be so cynical?   Well let's take a look at some of the problems with the NRA proposal:

  • The NRA proposal isn't designed to reduce mass murder.   Its designed to reduce mass murder when the mass murderer decides to attack children by walking past an armed security guard.  Under the NRA proposal, mass murder can be perpetrated against children, college students, movie patrons, in an unlimited number of ways.   If, using an assault rifle, the murderer picks off the security guard, the NRA proposal is basically worthless.  If the mass murderer waits for an unguarded door to open, he can gain entry the back way and wreak havoc before help arrives.   The NRA proposal does nothing to reduce the weapons of mass murder in our midst: it just creates a false sense of security by putting a single guard in a stationary location in just one of the places that children may be. 
  • The NRA proposal doesn't offer protection to  school children when they assemble in places unprotected by the one guard that is proposed.    Unless we are going to ban recess, field trips, and school buses, to name a few, any mass murderer who wants to access children with  weapons of mass murder, can do so in any number of places that simply cannot be guarded by a single armed officer.   
  • The NRA proposal fails to recognize that one of the reasons that mass murder occurs even when security guards are nearby is that a single security guard has a duty to protect himself so that he can eventually stop the mayhem.    When shootings are underway, a security guard cannot take the risk that he will be killed; his training requires him to take prudent steps to make sure that he can stop the intruder, and that often requires that he not rush into the line of fire without taking precautions.   
  • The NRA proposal doesn't offer a solution for day care centers, libraries, childrens' movies, or colleges and universities, and any number of groups of people who also deserve to be safe.  That's because the NRA proposal isn't about keeping people safe.  Its about calming people down and getting them to do something that will change the subject away from the fact that America allows anyone and everyone access to the weapons of mass murder. 
  • The NRA proposal places a single armed guard in a stationary position against an enemy with superior force and the element of surprise.     The NRA contends that security guards are stationed at all sorts of buildings and schools and wrongly contends that these security guards are posted in order to eliminate the threat of mass murder.  That's completely false.   Security guards are posted at buildings primarily to control the entrance of unarmed or lightly armed persons who don't intend to commit suicide.  You can't expect a single stationary security guard with a holstered gun to overcome a surprise attack from a heavily armed mass murderer who is willing to risk death. The NRA proposal refuses to recognize that security guards can do their job more efficiently if they face an who is unable fire 30 rapid fire rounds before reloading.  
  • The NRA proposal doesn't assure even a single armed security guard at each school; in fact it assures that there won't be constant security protection.  Let's face it folks.  Even security guards have to go to the bathroom.    It takes two security guards to assure that a single security guard is always present at a given entry point.  Not one, but two.   If there is no relief for the security guard, then a mass murderer need only wait until the security guard leaves his post.  Or, he can create a diversion of some kind that causes the security guard to leave his post. You can imagine any number of circumstances that will cause a security guard to leave his post; a student who gets injured, a scuffle in the halls, and so on.    Usually, when police are posted to a school, they serve a variety of safety functions besides keeping mass murderers out of the building.  They engage students in law enforcement discussions; in some schools, they meet with students who are suspected of criminal misconduct; they may collect data necessary for dealing with drugs, or serious harassment, and so on.  The security guards that NRA has in mind won't be able to perform this function, because if they are down the hall, or in a counselor's office, or in a classroom, a weapon designed for mass killing can kill a couple dozen children before the security guard arrives.  
  • The NRA proposal costs billions and still affords no safety.     News clippings are starting to surface with an estimate of the annual cost of providing a single armed security guard at each public school.   In Colorado, a public education official is reported as giving a $181 million cost for posting an armed security guard.  A Daily News analysis argues that placing an additional armed officer in each of the New York City's roughly 1,750 schools would cost about $81 million in salaries alone — plus benefits worth about a third of the yearly pay, for a total annual bill of well over $100 million.  The Daily News says, on a national scale, putting an armed guard in each of the country’s roughly 98,000 public schools would cost over $3.3 billion each year in salaries alone — plus benefits — according to Labor Bureau figures that put the average yearly pay of a a security guard at about $33,840.  

If you genuinely wanted to make public school children safer, you would go to law enforcement for advice.  Or to public school districts--school boards, superintendents and teachers?  Not the National Rifle Association?   The National Rifle Association is an organization dedicated to weapons before school safety.  It is dedicated to solutions that propagate weapons throughout society that are capable of committing mass murder.   Accepting advice from the NRA on how to eliminate mass murder in society is like asking the tobacco lobby to give us advice on how to eliminate cancer.  Its like asking the coal company lobbies to analyze the threat of global warming.   This plan of retaining Asa Hutchinson to create a plan is similarly flawed.    He's being asked to create a plan while on the payroll of an organization that's not willing to discuss solutions, unless the solutions fit within a preconceived set of parameters that put the safety of weapons of mass killing over the safety of children.  

If the NRA wrote an article about the characteristics of the 9mm Glock 19 semi-automatic pistol that Jared Lee Loughner used to shoot Gabrielle Giffords, or the Ruger Mini-14 rifle that  Anders Behring Breivik used to murder 77 in  Norway,   or the Glock 9 that Seung-Hui Cho, used a to murder 33 students at Virginia Tech, well I'd be inclined to take notice.   They know something about guns. But why would anyone take the NRA's advice on how to make schools safe?   If the NRA were genuinely interested in safe schools, it would have consulted with the people who run schools, and the people charged with helping us keep them safe, before it launched its proposal to put a gun-carrying guard in each school in America.  In truth, the NRA's proposal has nothing to do with saving schools; its a proposal to save automatic and semi-automatic weapons and high-capacity gun magazines.     Why won't the NRA plan work?  Because at its core, the plan isn't designed to work; its designed to give its allies in Congress something to say that doesn't make them sound like they are insensitive to elementary school murders.

Saturday, December 1, 2012

Strive Comes to Minneapolis and St. Cloud

  A Minneapolis group called Generation Next  has just announced a public-private coalition designed to foster a Strive-like initiative.    Learn more about Generation Next by clicking here.  With a bit less fanfare, the St. Cloud community has been working for over a year to develop its own strive-like initiative called "Partners for Student Success."     These efforts are part of a growing network of Strive initiatives which promote community based "cradle to career" civic infrastructure to support student success.  These initiatives are loosely based on Cincinnati's groundbreaking initiative called  "Strive Together".  

Minneapolis's Generation Next
aspires to foster a community wide commitment to "closing the achievement gap among Twin Cities’ low-income students and students of color..... an unprecedented partnership of key education, community, government and business stakeholders dedicated to accelerating educational  achievement for all of our children – from early childhood through early career."  St. Cloud's Partners for Student Success  "unites Central Minnesota parents, businesses, community organizations, and the St. Cloud Area Public Schools to support student success."  

The Strive idea is coming to Minnesota.

The first Strive network,  Cincnnati Strive Together is a regional network that strives to assure that all children in the Cincinnati region are successful "from cradle to career."   The thrust of the initiative is to marshal community assets in a coordinated way.  The assets are families, faith communities, non-profits, public and parochial schools, seniors, the business community, technical colleges and universities.  The phrase cradle to career, doesn't mean that the government takes over the rearing of children, or that family responsibilities become government responsibilities.  On the contrary, the idea of success "from cradle to career" is to use existing resources, public and private, more wisely, with more accountability, targeted to clear measurable objectives.

Across the country, a variety of urban regions are adopting the strive model for reviving, restoring, and preserving their most precious resource -- the next generation.  Cincinnati Strive Together writes:

Education is perhaps the most important engine of economic growth and individual financial gain, and there is little doubt that our success in growing a stronger economy and lifting incomes will depend on getting better results in education, cradle to career.  To achieve these results, for every child, every step of the way, from cradle to career Greater Cincinnati leaders at all levels of the education, nonprofit, community, civic, and philanthropic sectors are working together as part of the Strive Partnership to tackle some of our most pressing challenges, and to take advantage of some of our biggest opportunities.
As such, the Strive Partnership serves as a catalyst for working together, across sectors, and along the educational continuum, to drive better results in education, so that every child is Prepared for school, Supported inside and outside of school, Succeeds in school, Enrolls in some form of postsecondary education and Graduates and enters a career. 

The Portland area has adopted the Strive model as well.  "A broad coalition is coming together across Portland and Multnomah County to create an accountability framework known as cradle to career. Portland State University is leading the effort with the Leaders Roundtable, cabinet members of Mayor Sam Adams and County Commission Chair Jeff Cogen and others to replicate an approach first developed in Cincinnati.  Portland Strive's first Commmunity Report, issued in November of 2010 explains:


A community with high levels of educational attainment provides far-reaching social, cultural, and economic benefits. Evidence is clear that a better-educated population reduces unemployment, crime, welfare dependence, and the need for costly interventions and incarceration. Educational success also contributes to quality-of-life advantages such as the arts, civic engagement, and vibrant urban neighborhoods. Some of these benefits can be quantified by dollars. For example, increasing the number of individuals who earn a two-year or four-year degree by age 24 by 1 percent is estimated to boost thelocal economy by $1.6 billion annually.

The Community Report continues:
We have come together to develop a comprehensive and data-driven strategy to analyze both our educational and our social/community indicators so that all students can succeed. We are laying important groundwork so that decision making by parents, educators, government policy makers, business leaders, and others can be based on evidence. Data and analysis help leaders support programs and practices that work and help them reject those that don’t.
In Cincinnatti, community leaders came together to form an executive leadership team, representing university, non-profits, government, business, and K-12  education.   They agreed to focus on three key student success indicators and to prod all elements of the community to work to lend their efforts to improve performance in those areas.

Cinncinnati had a very strong parochial school system that prided itself in delivering quality education to minority students.  Partly as a result of its traditional commitment to minority education, the Catholic diocese joined with the Strive effort building on over two decades of support for improving educational results in the community. At one time, parochial schools in southern Ohio had been regarded more as an escape from school integration.  But Archbishop Joseph L. Bernedin believed that Catholic education must be a part of the effort to end the cycle of poverty in Cincinnati.  He argued that the cycle of poverty could only be broken through education and made it his mission to help children coming from disadvantaged households.   In Cinncinnati, Catholic education is an integral and formal part of the community initiative. 

Strive initiatives involve the entire community in a concerted coordinated effort to support the success of young people.  They are ambitious projects.  To be successful, they will require resilience, persistence, and active involvement of community leadership.  

Sunday, November 25, 2012

What if Public School Districts were Treated Like Public Utilities

At the beginning of his first term, Governor Pawlenty wisely recognized that he could not fix the dysfunctional school finance system in Minnesota, unless he developed a consensus on the actual amount it should cost to deliver the educational programs and services required by the State.  And so, he convened a task force that was supposed to study the issue with great care, and report the results back.  But as the work of this task force moved forward, it began to develop that the bipartisan task force was likely to report that we were a couple billion dollars short of the actual cost.  That should have been unsurprising, because by then, the shortfall in special education alone was recognized to be about $650 million per year, and projected to rise still higher.   For whatever reason, the Governor cancelled the task force, and left the work of the task force unfinished.   Governor Dayton created a new task force, but he too refused to ask the task force to answer this question.   That has caused me to ask the following question:
What if the State of Minnesota set school district revenues as if they were public utilities?  That's the topic of my post today.   Or, I might rephrase that question:  suppose the State tried to set public utility rates by ignoring the cost of delivering services, as we do in the case of public schools?  

I think that I started down this road, because I've been working on a number of cases involving a Minnesota public utility, and that has caused me  think about the stark difference in the approach to rate setting between the two.   After all, a public school system has a lot in common with public utilities.  Both provide important necessary public services.  Both are required to provide those services to all comers.   And either one would surely fail if required to deliver services at below cost.    As with school districts, the government determines the reimbursement rate for public utilities.  However, think what would happen if the State tried to set utility rates in the same way that it set funding for public education---in other words, by ignoring the cost of providing mandated services? (Or, to rephrase the issue:  if the State can set public utility rates by determining the cost of electricity or natural gas, why shouldn't it be able to do the same with the cost of public education)

Suppose, for example,  the state decided to cut NSP's electric utility rates by 20% next year, just because Minnesota families are overburdened with medical costs, taxes and other expenses?  Suppose the state created a committee at the Public Utility Commission to examine rates, but the committee was ordered to ignore the true cost of producing electricity!  Would that be constitutional?  That's what Governor Pawlenty, and now Governor Dayton have both done! 

Clearly, our Courts would not allow the State to set utility rates at a level below the cost of providing service! Indeed, if the State attempted to force public utilities to deliver electricity in return for revenues below the cost of service, the state or federal courts would strike those rates down as unconstitutional, because it is just not possible to deliver a product for less than cost, and you can't rationally set rates, unless  you have a system that determines the rates based on real hard facts. 

Public utility rate setting actually begins by determining the public utility's necessary operating expenses.   The Public Utility Commission here in Minnesota approves rates based on a rigorous examination of the actual cost of delivering the required service, for example, natural gas or electricity.   As Wikipedia explains,the traditional rate formula is intended to produce a utility's revenue requirement:  R = O + (V - D)r   In this formula, R is the utility's total revenue requirement or rate level. The R is the total amount of money a regulator allows a utility to earn.   O is the utility's operating expenses.  Notice that where public utilities are concerned, the starting point for determining the revenues is the total operating costs required by the utility.   If the legislature proposed to set revenues for electric companies or natural gas companies without determining their total operating costs, why the legislature would be the laughing stock of the nation, and a lawsuit would result in an immediate injunction.   You can't run a power business or a natural gas distribution business if you're not allowed to cover your expenses.    V in the formula is the gross value of the utility's tangible and intangible property.   r is the rate of return a utility is allowed to earn on its capital investment or on its rate base.    The formula recognizes that it is impossible to maintain the physical plant necessary to run a public utility, unless the utility is provided with sufficient revenues not only to cover operating costs,  but also to provide enough money to pay for the equipment needed to deliver the service.    As Wikipedia explains:

"A [public utility's operating expenses, such as wages, salaries, supplies, maintenance, taxes, and research and development, must be recouped if the utility is to stay operational. Operating costs are most often the largest component of the revenue requirement, and the easiest to determine. Although both agencies and courts have the legal authority to supervise the utility's management, they will not substitute their judgment unless there is an abuse of managerial discretion.

In other words, when setting power or natural gas rates, the management of the public utility informs the state utility commission what the reasonable expenses of the utility are going to be, and the state basically accepts that judgment.  But actually public utility rate-setting requires the State to assure that the utility's expenses are completely covered  by revenues, with profit to spare.  Public utilities are protected by a process that assures that their right to full funding of their operations, plus a substantial rate of return sufficient to attract investment to build necessary infrastructure, is guaranteed.   The way it works is that the utility prepares a cost estimate which sets out the various component costs required to cover their costs plus a reasonable profit.    The State administrative agency that regulates utilities reviews those costs and reduces them where they are unreasonable through an administrative process that guarantees the utility due process.   The Minnesota Public Utility Commission is headed by an Executive Director with a PhD in economics.  The reason is that the public utilities expect that before their revenues are determined by the State, experts in evaluating the true costs of delivering electricity must make a fair and rational determination of the necessary revenues.   Under threat of constitutional litigation, the state has carefully crafted an administrative process, implemented by staff trained in the economics of costing public utility services, to determine the cost of service, and if the state ever attempts to make a public utility conduct its business at less than cost, the court will most certainly strike that attempt down.

Periodically, I've posted opinions that argue that Minnesota's school finance system is unconstitutional because it requires school districts to deliver mandated services, but fails to provide the funding necessary to deliver those services.   Links to some of those posts are listed below at the bottom of this post.   Suppose your spouse demanded that you purchase a lake home on Gull Lake on two acres of forested land with three fancy bedrooms, a family room and two modern bathrooms, but insisted that you "keep the price under $125,000."    That would be unreasonable, wouldn't it, because you can't budget $125,000 to buy a house with specifications for many times that price.   You'd have to figure out what a house like that costs, before you can set your budget.    The same is true with regard to public education.   You can specify how much a school district will have to spend per student.  Or, you can specify what the school district must accomplish:  what quality of education it must produce in its students.  But you can't specify revenue and results, unless you assure that the revenue is sufficient to get the job done. 

In Minnesota, however, the State makes absolutely no effort to determine the necessary operating expenses. As I pointed out in an October post, a 2004 Minnesota Education Finance Reform Task Force recommended that our public schools should be funded based upon a rationally determined, learning-linked, student-oriented and cost-based Instructional Services Allocation. (See Inve$ting in our Future, Seeking a fair, understandable and accountable, twenty-first century education finance system for Minnesota, Recommendation.  But the state terminated the task force designated to establish the reasonable cost of mandated services.  Recently, the Governor established a new task force, he told the committee not to try to determine the cost of providing state mandated services.   In other words, like Governor Pawlenty before him, the Governor decided that it would be inconvenient for the public to find out how much state revenues it would actually require to deliver the services that the State requires. 

If it is unconstitutional to order public utilities to deliver electricity at below cost, how can it be constitutional to order public school districts to deliver education at below cost, while providing them with no taxing power to meet state requirements?    I'm not suggesting that the same Constitutional law principles govern public utility rates and public education. I am suggesting that the same common sense principles make it impossible to contend that when a state mandates that districts deliver a specified service, that it need not provide sufficient funding, or a taxation source to provide sufficient funding, to provide that service.

If Minnesota is ever going to fix its school finance system, we need to stop avoiding hard economic facts.  You can't budget for public education unless you figure out the actual cost of providing that education.   What's true for electricity is true for education:  revenues must cover costs or the system is broke.   


Links
Jvonkorff on Education McCleary v. State, Part I
Jvonkorff on Education McCleary v. State, Part II
Jvonkorff on Education McCleary v. State, Part III
Jvonkorff on Education McCleary v. State, Part IV
Summary of Decision Network for Excellence
Washington Supreme Court Blog  
JvonKorff on Education, The Rose Decision 
Minnesota's School Finance System is Unconstitutional, Part I
Minnesota's School Finance System is Unconstitutional, Part II
Minnesota's School Finance System is Unconstitutional, Part III
Minnesota's School Finance System is Unconstitutional, Part IV

Saturday, November 17, 2012

St. Cloud Begins Superintendent Search

I've been away from JvonKorff on Education for a while, because my work and school board schedule has been overwhelming.   On the school board front, we've been starting the process of hiring a new superintendent to replace our retiring superintendent Bruce Watkins.   The first step in our process has been to hire a superintendent search firm.  An adhoc committee of the board managed the process of collecting search firm proposals, calling references and recommending finalists to the board.   Our board then spent two evenings interviewing  four of the firms, and then a third meeting to decide on the firm we wanted to hire.
A frequent question is "why can't the school board conduct it's own hiring process?"  "Isn't that what we pay you for?", some people say!

Now before I answer that question, let me say that one thing I will not blog about is the specifics of  our actual hiring process.   The information about that process will be handled by the search firm under whatever protocol they establish in consultation with the school board.   But I thought that it would be helpful to say a few words about why school boards typically use a search firm to assist in the process. 

Most school boards use a search firm to manage their superintendent search for a number of  really important reasons.  Here is a bulleted list of those reasons:
  • Whatever we think about our own strengths and competencies as board members, we are not  professional executive recruiters.  We are part-time school board members.   A number of the board members will be hiring a superintendent for the first time, and executive recruiting is a skill that improves with experience.    The ultimate decision belongs to the board, and we are responsible for the choice we make, but a professional search firm assures us that we have the best possible panel of finalists from which to choose. 
  • When a school board member serves as the primary communication link with potential candidates, that presents all sorts of problems.  In the first place, the candidates don't  know that board member.   They may be concerned that the board member won't protect confidential information.    They may not be sure that the board member is communicating information to the rest of the board in an unbiased way.    Candidates want to know whether they have a strong chance to be considered, and a single board member is not able to assess whether that is the case.  When a search firm is handling these communications, the candidate pool knows that they are dealing with a company whose reputation depends upon maintenance of the highest professional standards.  
  • If a district employee manages communications for the search, why then that person is managing a critical part of the hiring of his or her own future supervisor.    Typically, the top people in a school district have short-term contracts.   However professional the top executives in the district, there is an appearance that possibly the internal staff have an agenda that might differ from that of the district.  Sometimes there are internal candidates and employees may have positions on whether that internal candidate should, or should not be hired.   A search firm assures that all employees have input to the same extent and that the search will be managed without favoritism.
  • The best candidates are likely to be in a position where their current employer wants them to stay.  A good search firm has built longterm links to the existing administrator community and actually recruits people who may not have been contemplating a career move.    Search firms build databases with information about executive talent and they all employ as consultants recognized outstanding former superintendents who are in constant contact with school districts and superintendents throughout the state and region.  A good search firm brings forward candidates that local people might never have considered.
  • Superintendents who are thinking about applying may often be reluctant to announce their intentions to seek alternative employment, until they have a pretty good idea that they are likely to be successful.   Sometimes, they don't want their own community to know that they are in the market.  Sometimes they actually don't know whether they are in the market, and won't make the decision until they are reasonably sure that they are going to be one of the top candidates.   A search firm can provide assurances of confidentiality and manage those communications with the board in ways that the Minnesota Open Meeting Law and data practices law would otherwise make impractical.  
  • A search firm typically leads community stakeholders and employees in a discussion about the perceived strategic needs of the school district.   The hiring of a superintendent typically becomes a time for stock-taking and soul-searching about whether the district needs to strike out in new directions or emphasize new objectives.   The best search firms are really good at helping the school board, staff and community think strategically about the talents, skills and priorities that the new superintendent should have.   
  • Related to all of this is the need for the new superintendent to arrive with a sense of legitimacy:  that the best possible selection was made in the most professional way.   
There are a number of fine superintendent search firms serving our market.  Hiring a superintendent is one of the most important things that a school board does, and is one of the most important events for any community.   It should be accomplished with the assistance of experienced professionals.

Saturday, October 6, 2012

Testimony to Education Finance Working Group



Last Friday, I joined with William Mitchell student Nathen Berg to offer testimony on behalf of the Center for Negotiation and Justice to the Minnesota Education Finance Working Group.    The Center is led by adjunct professor Jim Hilbert.  The thrust of our testimony was to urge the Governor's Working Group to incorporate the requirements of Minnesota's Constitution in school funding reform.   Here is the testimony that we delivered. 

Testimony of the Center for Negotiation and Justice
William Mitchell College of Law
before the
Education Finance Working Group
October 5, 2012


            The Center for Negotiation and Justice[1] at William Mitchell College of Law has been working to develop an analysis of the State of Minnesota’s constitutional requirements with respect to public education.  For the last two years, Center faculty, students and advisers have met with representatives of school districts, parents, community groups and school organizations to promote dialog on how Minnesota might adjust its school finance system to meet its requirements under the State Constitution.  Based on those discussions and other analysis, we think that it is likely Minnesota will face a constitutional challenge to the current funding system in the near future. 

            We respectfully request that you review our written testimony and take the following steps:

·         Recommend that the Governor restart the process to identify the true cost of delivering mandated education services and to recommend that these costs play an integral part in the Governor’s budget recommendations as well as legislative action.

·         Confront recent court decisions from across the country, specifically the Lobato and McCleary decisions discussed herein, that hold that the Constitution requires that education finance must be based on the true cost of delivering mandated educational services. 

·         Make it clear in your report that the cost of delivering the services mandated by the legislature is likely several billions of dollars greater than the current funding provided.

·         Consider giving the Center an opportunity to visit with your working group, or a subcommittee of your working group, so that we might make a more detailed presentation focusing on the ways in which Minnesota could begin to adopt a constitutionally compliant school finance system.   

In our discussions with educational leaders in the last two years, we find that there appears to be widespread consensus that the current school funding system is failing.[2]  It is our sense that to avoid constitutional challenge, prompt action is required.  It is for that very reason that we hope to inspire consideration of the latest constitutional approaches to state education finance.  We understand that your mission is time-limited, but if time permits, we’d be willing to share the results of our analysis to the working group at a more formal presentation.

            We summarize this testimony as follows:

Based on both Minnesota Supreme Court precedent and recent cases from other states, the current Minnesota funding system is constitutionally deficient, and any reform proposal should urge the Minnesota legislature to take prompt action to comply with state constitutional requirements.
                                                          
             
                                                           Since 1993, the year in which the Minnesota Supreme Court declared that Minnesota schoolchildren have a fundamental right to an adequate education, Minnesota has transitioned from a seat-based education system, requiring only delivery of instruction, to a proficiency-based education system, requiring that all students must be educated to proficiency in math, science, reading and writing. This shift requires that the state develop a cost-correlated school finance system.  Your report should urge the legislature to adopt a cost-correlated school finance system, that is, to adopt a budgetary process that begins by determining the reasonable cost of delivering state mandated education services, and to assure that every district receives sufficient funding to deliver the services required of that district.

                                                           Your predecessor, the 2004 School Finance Reform Task Force, called upon the state to implement such a system, recommending a rationally determined, learning-linked, student-oriented and cost-based funding mechanism.[3] This working group should reaffirm that recommendation, and it should promote compliance with the Minnesota Constitution by urging the Governor to complete the work of the 2004 Task Force and now finally make transparent the actual cost of delivering mandated education services. 

In this submission, we begin by discussing Minnesota’s primary case with respect to Minnesota’s educational obligations under the state constitution, Skeen v. State 505 N.W.2d 299 (Minn. 1993).  Skeen joins a long line of constitutional cases from other states establishing a fundamental right to an “adequate” education.  Before proficiency mandates, plaintiffs in these types of cases asked the courts to decide what an “adequate” education means.  Many of the leading cases include detailed articulation of the minimum requirements of a 21st century education.  See, e.g., Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989); Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 990 A.2d 206 (2010).  In many of these “adequacy” cases, the courts ultimately required the legislature to provide sufficient funds to deliver that judicially required education.

This adequacy approach shifted to the judiciary a primary responsibility to manage critical aspects of state education policy.  However, the most recent State Supreme Court decision on these issues, McCleary v. State, a Washington State Supreme Court decision takes a different approach, one that recognizes the transition to a state mandated proficiency system for public education.  Under a proficiency-based system, the state legislature sets expectations for student performance, not the courts, and setting those standards is accomplished by state legislation or regulatory standards.  Thus, the Court does not need to define an adequate education, because the legislature assumes its responsibility to set educational standards. 

The Court’s job, under this new approach, is to assure that the legislature does not abdicate its constitutional responsibility to credibly determine the cost of state mandated services, and then to fund the mandated services.  A legislature cannot meet that responsibility when it refuses to derive those costs in a responsible manner, and the legislature needs the Governor’s executive leadership to get that job done.  As described more fully below, the McCleary case holds that the legislature has a responsibility to correlate the funds provided to school districts with the actual cost of state-mandated education services.  Under this approach, the legislature no longer determines school funding by adjusting funding to political pressure from competing interests, but rather determines funding based upon data through a rational fact-based process.  We think that the McCleary approach has great merit and represents a sea-change in how courts from across the country (including Minnesota) will evaluate state educational finance.  It establishes that true school finance reform begins with a systemic approach to determining the cost of state mandated educational services.  

The Constitutional Landscape for Education in Minnesota

Minnesota’s Constitution states:
“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.”  Minn. Const., art. XIII, § 1.


            In Skeen, the Minnesota Supreme Court issued its groundbreaking decision that this education clause creates a fundamental right which is enforceable by the courts.  The Court wrote:
[W]e hold that education is a fundamental right under the state constitution, not only because of its overall importance to the state but also because of the explicit language used to describe this constitutional mandate.  While a fundamental right cannot be found absent constitutional mandate the Education Clause is a mandate, not simply a grant of power. Skeen at 319.  (emphasis added and cites omitted). 
Importantly, Skeen was decided at a time when Minnesota’s state education standards did not require that local school districts must educate all students to a state determined level of proficiency.  The plaintiffs in Skeen actually conceded to the Court that the plaintiff school districts were already adequately delivering all state mandated services and that all of their students were receiving an adequate education.  The school districts in Skeen were claiming, instead, that their lower property tax base made it more difficult for them to fund so-called “excess levies.” 

The Skeen plaintiffs chose not to contend that funding deficiencies interfered with students’ fundamental rights to receive state mandated services because Minnesota imposed no proficiency outcomes on local districts.  At that time, Minnesota’s was a “seat-based” system that merely mandated that school districts deliver to students a minimum number of hours of specified courses.  A seat-based system does not force a school to spend more money on students with educational disadvantages.  A school can provide lower level courses on a lower level track to students who are behind, and higher level courses to higher level students who are at an average level or ahead.  In a seat-based system, a school district can adjust its programs, class sizes, and course offerings to the amount of funding the state provides.  Under a seat-based system, a school district with a higher percentage of students with educational disadvantages could avoid the additional cost of educating disadvantaged students by simply refusing to close the educational gap.  

            Thus, the Skeen Court was confronting a challenge to the uniformity of the property taxation system which the plaintiffs admitted did not interfere with students’ fundamental rights to an education.[4] That is why the Minnesota Supreme Court refused to strike down the “excess levy” system that existed in 1993.  Although the mil rate imposed in some districts was higher than others, in order to achieve the same excess levy revenues, the education clause was not violated, because according to the plaintiffs, all of the plaintiff districts nonetheless had enough resources to meet state requirements. 

            During and after the Skeen litigation, Minnesota began the transition to a proficiency-based educational system which mandates actual delivery of minimum level of educational proficiency to all students.  Arthur Levine of Columbia Teachers College recently described this transition as moving from a system that provides teaching to a system that provides learning.[5]  Once Minnesota shifted to the minimum proficiency model, the cost of education for each student varied dramatically, based on the level of literacy, language barriers, home support for learning, disabilities, and for transferring students, the level of their preparation in previous schools.  Moreover, because the State was now mandating a higher quality education for all students, the total resources provided to all districts should have risen to compensate for that requirement.  Nonetheless, the State never attempted to derive the additional cost of meeting the new and higher standards. 

Meeting the goal of proficiency simply costs more for some students than others, and high cost students are concentrated in some school districts and not in others.  While Minnesota has made modest efforts in providing compensatory funding, those efforts are not based on evidence that the compensatory funding is sufficient to make up the differential cost disadvantage; they are based on political pressure.  In special education alone, based on our conversations and other analysis, there is a $700 million deficiency in the funding as compared to the cost, and the differential is distributed unequally among districts in a way that is not rationally related to any legitimate end.

Since Skeen in 1993, no one has yet brought forward a claim to the courts asserting that Minnesota’s current funding system fails the so-called “rational basis test”, nor has a citizen yet brought a claim alleging that state’s system interferes with the fundamental right to a state mandated basic education, but it is our view that under current circumstances, both of those claims would likely be successful.    

Recent Cases from Across the Country

            That brings us to the recent Washington State Supreme Court decision in McCleary v. State, 173 Wash.2d 477 (2012), a case that addresses the state’s constitutional obligation under a proficiency-based education system.  We have chosen to focus on McCleary because it addresses circumstances in the State of Washington that are quite similar to the current circumstances in Minnesota.  As the McCleary decision explains, in 1992, the Washington legislature “took its first major step toward adopting a performance-based education system.”  In the ensuing years, the State of Washington added and strengthened the proficiencies required of all students, cementing Washington’s transition from a “seat-based” education system to a “proficiency-based” system.  By 2005, an official state study recognized that although the requirements for students had dramatically changed, still the legislature was funding public education based on its old funding formula, subject only to minor tinkering that had not been based on genuine examination of costs.  

Despite this radical change in educational objectives, the State legislature failed to reform funding to recognize the cost-implications of this change in mission.  The Court explained:
“[D]espite the shift to a performance based system more than a decade earlier, the funding model for K-12 education has not been updated to reflect the new expectations and has not addressed the question of how to use resources most effectively in order to improve student outcomes. (citations omitted).  McCleary at 501.
In response to plaintiffs challenge to the legislature’s failure to fund appropriately, the Washington Supreme Court held that state legislation defining the proficiencies which school districts were required to deliver “together define a basic education—the substance of the constitutionally required education” under the State’s Constitution.[6]  McCleary at 523.

In fulfilling its duty, the Washington Supreme Court held that the legislature has a responsibility to provide local school districts with sufficient reliable funding sources to deliver the education required.
The legislature’s duty to make ample provision for funding the basic education program includes the requirement that funding be accomplished by means of dependable and regular tax sources.  McClearyat 526.
The Court rejected voter approved excess levies as an appropriate funding source to meet the State’s constitutional responsibility noting that in a prior case “we rejected special excess levies as dependable and regular not only because they are subject to the whim of the electorate, but alsobecause they are too variable insofar as levies depend on the assessed valuation of taxable real property at the local level.”  McCleary at 528.  The delegation to local referendum of the decision whether to meet the state's constitutional obligation to provide a uniform basic education is generally held to be unconstitutional.  See, e.g., Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989); Montoy v. State, 112 P.32 923 (Kansas 2005); Helena Elementary School Dist. No. 1 v. State, 769 P.2d 684 (1989).  See also Horton v. Meskill, 376 A.2d 359 (Conn. 1977).

            The legislature cannot do its job, the Court held, if it ignores the true cost of providing mandated services.  Accordingly, the Washington Supreme Court found that the legislature has a duty to “correlate” the revenues provide to the actual cost of state mandates:
The trial court concluded that the State has failed to adequately fund the “education” required by article IX, section 1. Substantial evidence supports this conclusion. The evidence at trial showed that the State’s now-abandoned basic education funding formulas did not correlate to the real cost of amply providing students with the constitutionally required “education.” As a result, the State has consistently failed to provide adequate funding for the program of basic education,including funding for essential operational costs such as utilities and transportation. To fill this gap in funding, local districts have been forced to turn increasingly to excess levies, placing them on the same unstable financial foundation as the schools in Seattle School District.

McCleary at 529 (emphasis added).

            The parallel between Washington and Minnesota is striking.  The legislature in Washington had done exactly what Minnesota’s legislature has done –allocated funding based upon the historical basic formula with minor adjustments that reflect primarily political and state tax revenue considerations:
The basic education funding formulas examined by the trial court did notcorrelate to the level of resources needed to provide all students with an opportunity to meet the State’s education standards. This disconnect had its genesis in the legislature’s failure to update the funding formulas after the State transitioned from a seat-based education system to a performance-based system in 1992. The legislature continued to fund schools using the formulas adopted in the Basic Education Act—formulas that were based on a snapshot of actual staffing levels and school district expenditures in the mid-1970s, not the level of resources needed to allow students to meet the new performance-based standards.[7]
McCleary at 530.


The Court ordered 
“The legislature must develop a basic education program geared towarddelivering the constitutionally required education, and it must fully fund that program through regular and dependable tax sources.”  McCleary at 546-47.

Just three weeks before the McCleary decision, a state court in Colorado arrived at a similar conclusion.  Lobato v. State, slip op. Case No. 2005CV4794.  In the Lobato decision, the District Court again pointed out that Colorado’s legislature had carefully specified educational outcomes which must be attained, but had never engaged in a rational fact-based process to adjust state funding to the new more demanding educational tasks.  The Court explained:

Although the standards-based education system intentionally established standards of educational achievement and a method to measure accomplishment of those standards, the finance system has never been adjusted to address the costs of meeting those standards. Although one of the primary purposes of standards-based education was to provide objective measures of achievement that could be costed-out and funded, the two systems have remained out of touch and actually diverging, with no meaningful effort to analyze and align funding levels with educational costs.  Lobato at 181.

The change to standards-based education represents a massive change in mission that requires the legislature to address the cost of those changes head-on:

In recent years, new educational goals linked to school readiness and postsecondary and workforce readiness were mandated, and measurements of school and school district performance with sanctions for failures have been implemented as part of educational accountability.  Again, these changes in the education system have added and will continue to add significantly to the costs of education, but the finance system has been completely unresponsive.  As a result, there is not enough money in the system to permit school districts across the State to properly implement standards-based education and to meet the requirements of state law and regulation . . . .  The problem has been compounded by the fact that during this same time Colorado and virtually every school district have experienced significant demographic changes, particularly in the number and concentrations of English language learners, ethnic minorities, and children of poverty. The number of children with severely disabling conditions has also grown. There are now significantly larger percentages of students with more expensive educational needs. The educational achievement requirements for these students are the same as for general education students, but the cost to achieve proficiency and growth requirements among these students is much higher . . . .  Once again, the State has not attempted to quantify and fund the costs of providing educational services to these and similarly situated students with special needs.  Lobato at 181-82.


The McCleary and Lobato decisions tie directly to the work of the 2004 School Finance Reform Task Force which recognized that Minnesota’s school funding formula must be:

a rationally determined, learning-linked, student-oriented and cost-based Instructional Services Allocation. (See Inve$ting in our Future, Seeking a fair, understandable and accountable, twenty-first century education finance system for Minnesota, Recommendation #1).  

The Task Force’s recommendation represents a bipartisan recognition that ignoring the actual cost of meeting state requirements makes meaningful reform impossible. A Pioneer Press article in 2004 reported on the work of the Task Force:

The governor's task force is recommending a funding formula based on the actual cost of providing a student with an education sufficient to meet state standards. But the proposal stops short of setting that cost. Schools would still get additional funding help for certain challenges, such as poverty and students who are learning to speak English.  Similar panels have had limited results in recent years trying to improve and simplify the state's K-12 funding system.  Former state senator and task force member Duane Benson said legislators typically look only at how such changes would affect their local schools. Benson said he's optimistic lawmakers will look hard at this proposal and adopt most of it.  "When change comes, sometimes it's a little scary. This can be a little bit scary, but I think doing nothing can be more scary," Benson said.

In fact, the Task Force was on the brink of making public the fact that Minnesota’s education budget was then approximately $2 billion short of meeting mandated education services when the 2004 Task Force was summarily terminated by Governor Pawlenty.  As a result, for another eight years, four bieniums, Minnesota made no effort to develop a “rationally determined, learning-linked, student-oriented cost-based funding formula.” 

Eight years after the task force correctly pointed out that the education finance system must be “rationally determined” and “cost-based,” still neither the Governor nor the legislature have made an effort to develop the cost data necessary to establish an appropriate funding strategy.  
           
Conclusion

Thank you for considering our testimony on the importance of addressing constitutional requirements in your efforts to reform Minnesota’s education finance system.  Your efforts will fail if you merely advocate that the legislature add money or move it from one place to another.   A reformed system should be based on the actual cost of providing state mandated educational services.  The governor’s budget should be founded on cost data.  When the governor delivers his budget, he should make transparent to the legislature what it actually costs to deliver the programs that his budget and state law mandates.  Any other approach is not rational, is not constitutionally sound and will simply perpetuate the flaws in the current system.   
           


[1] The Center for Negotiation and Justice at William Mitchell College of Law develops coursework and provides community advocacy to explore, develop, and advance the connection between principled negotiation and social justice advocacy, combining these two critical disciplines into a focused study and practice using negotiation as a means of promoting social justice.  The executive director, Jim Hilbert, was one of the plaintiffs’ lawyers on the 1995 adequacy case, Minneapolis NAACP v. State of Minnesota et al.  For more information on the Center, please visit http://web.wmitchell.edu/negotiation-justice/.

[2] Test scores, graduation rates, and disparities in student achievement along racial and socioeconomic lines also confirm that the system is broken. 
[3] (See Inve$ting in our Future, Seeking a fair, understandable and accountable, twenty-first century education finance system for Minnesota, Recommendation #1).
[4]   The Court explained: 
In this case, the plaintiffs concede that they continue to receive an adequate education, thereby satisfying the fundamental right to a general and adequate system of education.  With respect to uniformity, the funding system in question provides the same amount of funding for each student.  The equalization process the state uses to arrive at the basic revenue figure meets, if not exceeds, the constitutional requirements of a "general and uniform" system of public schools.  Because the present system provides uniform funding to each student in the state in an amount sufficient to generate an adequate level of education which meets all state standards, the state has satisfied its constitutionally-imposed duty of creating a "general and uniform system of education."   Therefore, the state's present system of education withstands strict scrutiny analysis. 
Skeen at 315. 
[5]   He describes this as “the most profound change in American education in modern times.” — the shift in focus from teaching to learning. When education systems concentrate on teaching, the emphasis is on the process of instruction, measured in the length of time students are exposed to teaching. (Think, for instance, of the 180-day school year.) Time is the constant; all students are expected to learn the same amount of information in the same period of time.  In contrast, when the focus is on learning, the emphasis shifts to how much the student has mastered rather than how long the student has been taught. There is a shift in concern from the process of education to the outcomes of education, from coverage of a subject to learning the subject matter. Time becomes variable; learning is the constant.”  Arthur Levine, Better Schools through Smarter Testing, Los Angeles Times, August 3, 2012.
[6]   The Court recognized the legislature’s authority to redefine basic education, but warned that in so doing, it must exercise its authority within constitutionally prescribed bounds, any reduction of programs or offerings from the basic education program must be accompanied by an educational policy rationale. That is, the legislature may not eliminate an offering from the basic
education program for reasons unrelated to educational policy, such as fiscal crisis or mere expediency.  Rather, the legislature must show that a program it once considered central to providing basic education no longer serves the same educational purpose or should be replaced with a superior program or offering.
[7]   The Court continued: “We agree with the trial court’s conclusion that the legislature’s definition of full funding amounts to little more than a tautology. If the State’s funding formulas provide only a portion of what it actually costs a school to pay its teachers, get kids to school, and keep the lights on, then the legislature cannot maintain that it is fully funding basic education through its funding formulas. Even assuming the funding formulas represented the actual costs of the basic education program when the legislature adopted them in the 1970s, the same is simply not true today.”  Id.