Monday, March 26, 2012

Correlating the cost of education: fund the child.

This is the sixth in a series of posts on concepts suggested by the recent Washington Supreme Court decision,  McCleary v. State, enforcing the State's constitutional requirement to assure appropriate funding for public education.  You can jump to prior posts in the series using links below.  McCleary v. State deals with a number of important issues in education finance jurisprudence. One of  McCleary v State's important holdings is that that the funding formula in Washington is unconstitutional, in part, because the funding formula did "not correlate to the real cost of amply providing students with the constitutionally required education." As a result, McCleary explains, the State has consistently failed to provide adequate funding for the program of basic education.

In yesterday's post, I suggested that one way that the Minnesota judiciary could apply the McCleary correlation doctrine is to require that the Governor submit a budget to the legislature that covers the true cost of a state required education.   I suggested, as well, that the legislature should be required to follow a process in response that is based on a genuine attempt to determine the cost of the education that the legislature requires.   How would a Court determine, under this approach, that the legislature and governor had done their job appropriately.

The vein I'm trying to mine here, is whether there is a principled approach to judicial review that maintains respect for the democratic functions of the executive and legislature.   Is there a way in which the Court can force the governor and legislature to meet their constitutional responsibilities, without taking over the entire governance process.   This is an important issue, and its solution requires some careful thought.   It is obvious, I think, that the Governor and Legislature are violating their constitutional responsibilities.  The real question is whether we can find a remedy that is properly respectful of the respective role of the three branches of government.  

 I assert that one test that could be applied, is whether the Governor and legislature engaged in an a genuine costing out process that meets certain minimum standards of validity.  One test of validity, surely, would be that the Governor and legislature adopt a costing approach that recognizes that some students cost more to educate to proficiency than others.   To be valid, I assert, the costing out approach would have to make a genuine attempt to measure those cost difference. 

This concept, that some children cost substantially more than others to educate to a high level, is supported by the highly respected conservative think-tank Thomas Fordham Institute, In its 2006 Report, Fund the Child, the Institute argues: "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"
As parents, we know that some of our children seem to thrive at school effortlessly, and some require tremendous extra assistance at school and at home. We put "Pat the Bunny" in front of one of our children, and almost as if by magic, it seems, they are reading at an early grade. But a second child, raised in the same home, by the same parents, with the very same level of dedication to learning, doesn't catch on until years later than the other. One child needs almost no encouragement from the teacher, the other desperately needs it. As parents, we don't say, "all of my children are equal, so I'm not going to give any more help to one of my children than the other." In fact, we know that when we love our children equally, it means that we give each the amount of help that they need to thrive. We discover as well, that often the children who needed extra help in school, nonetheless thrive and may later even equal or excel as compared to the sibling who seemed to thrive effortlessly in elementary school.

And if it is true that our children need different levels of help to thrive even though they are raised in the same home, it stands to reason with greater force that children raised in radically different environments, with very different obstacles to surmount, are going to need greater or lesser supervision, instruction and mentoring. The goal of proficiency for all students is not attainable if we refuse to recognize that some children cost more to educate than others.

That point is punctuated by the support for "funding the child" differently in accordance with cost to educate by the proponents of public voucher support. Private schools could not and would not accept the challenge of educating all children who come to them unless they received an elevated funding allocation for the children who cost the most to educate. We cannot expect public schools to do so either. Indeed, when we hear advocates from communities with very small populations of hard-to-educate children, they seldom advocate that they should get their share of the costly students along with the extra funding. Very few of these advocates would make that trade, because they know, in fact, that Minnesota's current funding system actually under-funds the hard-to-educate. They would not regard it as an acceptable solution to get the extra funding and the students who cost more along with it.

Ok, Jerry, you say, that's not very helpful.   What's to stop the legislature and governor from deciding that a child with significant learning disabilities, or a student who speaks no English, costs only  $100 more than educating a student with all the educational advantages?   Couldn't the governor and legislature make the process of judicial review essentially meaningless, by advancing an inherently ridiculous cost structure.   And that's a good point.  My answer is that safeguards exist to assure, when the government makes decisions based on facts, to assure that that the result can fairly be justified.  We'll save that topic for the next post. 

Links
McCleary v State, Washington's Groundbreaking School Finance Decision
 McCleary v. State, Part I  
McCleary v State Requires Legislature to Base Funding on Actual Cost
Jvonkorff on Education McCleary v. State, Part II
McCleary v State and Determining the Cost of Education
Jvonkorff on Education McCleary v. State, Part III
 McCleary v. State: what level of scrutiny is appropriate for legislative funding decisions
Jvonkorff on Education McCleary v. State, Part IV
Correlating the cost of education: fund the child.
Jvonkorff on Education  McCleary V. State Part V
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

Sunday, March 25, 2012

McCleary v State: Embedding Cost Correlation in the Budgetary Process

This is the fifth in a series of posts on the recent Washington Supreme Court decision,  McCleary v. State, enforcing the State's constitutional requirement to assure appropriate funding for public education.  You can jump to prior posts in the series using links below.  McCleary v. State deals with a number of important issues in education finance jurisprudence.  But I've been posting on one aspect of the decision, the part that holds that the State does not meet its constitutional obligation to public education, when it sets funding based on politics rather than a data based costing system.  Unless the state legislature bases funding on credible efforts to determine the cost of required programs, it is acting irrationally and irresponsibly.

This common sense articulation of  one component of the constitutional test for education funding says that a legislature does not perform its constitutional duty unless education funding formulas "correlate to the real cost of amply providing students with the constitutionally required education.  The McCleary court explained:

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,
In the last post, I explained that courts usually take an extremely permissive, hands-off, approach to reviewing  state legislation when a constitutional right is not impaired.  When applying this relaxed hands-off standard, the Court simply asks if there is any possible rationale that could support the decision that the legislature made.  Under this relaxed standard, the legislature need not actually go through the motions of acquiring data to support its decision.  The defenders of the State law can actually supply a rationale that the legislature didn't even consider.   Courts like Minnesota (Skeen) and Washington (McCleary), however, have held that this hands-off review of education funding does not apply when the right to an adequate education are implicated.

How then should the Courts fashion a principled approach to judicial review of whether the education funding formulas "correlate to the real cost of amply providing students with the constitutionally required education?"   The purpose of this post is to begin an exploration of a couple of approaches to the correlation process. .

De Novo Costing Out Approach:    One approach to evaluating whether funding is correlated to the real cost of education would be to conduct a "de novo" trial in which the trial court takes testimony from superintendents, state officials, and professional education costing experts.   There are a number of such experts.   University of Wisconsin professors Odden and Picus,  Augenblich  Palaich and Associates often testify for the plaintiffs, and Eric Hanushek of Stanford often testifies for the State defendant.  The result is a lengthy and costly battle of experts resulting in a trial court decision as to what it really does cost.

Under this de novo costing out approach, the Court determines the amount of shortfall in legislative funding and then orders the legislature to come up with a solution to the funding shortfall in a reasonable time.   The resulting court order typically leads to a complex litany of subsequent litigation in which the parties contest whether legislative changes in funding do, or do not, comply with the letter and spirit of the Court's order, and we could easily spend ten blog posts on the complexities posed by the de novo costing out approach and still not cover the topic adequately.

Legislative and Executive Cost-Out Approach   Another alternative would be to require both the governor and the legislature to follow their own business like costing out approach as they prepare the biennial education budget.   Under this alternative, the courts would require both governor and legislature to engage in certain minimum good faith data-based efforts to correlate the real cost of the education required by state law.    How would that work?   What would prevent the legislature from double crossing the court's mandate by making up phony numbers.  What would prevent the Governor to present a bogus budget that dramatically understates the cost of education under current law?      If a legislature can pretend that science doesn't support climate change, then what is to stop the legislature from adopting a completely bogus correlation between its funding formula and the real cost of amply providing students with the constitutionally required education?  

Let us begin to answer this question by acknowledging that our current legislature and governor make absolutely no pretense of conducting this correlation process, and neither did Governor Pawlenty and the DFL legislature which proceeded the current incumbents.  A system under which the governor submitted a cost-correlated budget and the legislature adopted a cost-correlated budget would be vastly superior to the current system in which everyone involved proceeds on the common understanding that they will not even attempt to cover the true cost.   A requirement that the legislature and governor actually go through the motions of covering the full cost of state required education would force the State Department of Education to engage in a costing out approach using actual data, something that simply is not done today in the budgetary process.  How can we possibly solve a problem as weighty as education funding when we begin our work agreeing not to determine the true correlated cost?

Once the executive and legislature actually began to attempt to build an education budget based on the correlated cost of state mandated education, a number of positive changes might well result.  First, the legislature and governor would have to begin to develop a modicum of expertise in the actual cost of education, and that expertise would give new meaning to the legislative process.   Many of the key legislators in both parties show remarkable, even appalling, ignorance of even fundamental costing issues.   This ignorance results, I believe, from a process in which the actual cost of educational programs is deemed irrelevant to the ultimate result. Why learn something that doesn't matter?   In today's process, the key knowledge for legislators is to understand the "runs" produced at funding time that explain how much their own district is going to receive as compared to other legislator's districts, so that the legislator can explain to the home folks that our district is in just as bad financial shape as other legislators' districts.
  


Second, when mandates are imposed, the legislature's new-found interest in the actual cost of those mandates might create a far more cautious approach to imposing mandates in the first place.  The current practice which disregards cost correlation tends to breed irresponsibility in the legislative process. 

Once we actually began to use costing information in the budget building process, there are a variety of safeguards that could be imposed in the budget building process to assure a modicum of integrity in the process.  I'm trying to keep these posts to a manageable length.  In subsequent posts, I'll suggest some further approaches to the correlation process that might preserve a proper relationship between the legislature, executive, and judiciary.



Links
McCleary v State, Washington's Groundbreaking School Finance Decision
 McCleary v. State, Part I  
McCleary v State Requires Legislature to Base Funding on Actual Cost
Jvonkorff on Education McCleary v. State, Part II
McCleary v State and Determining the Cost of Education
Jvonkorff on Education McCleary v. State, Part III
 McCleary v. State: what level of scrutiny is appropriate for legislative funding decisions
Jvonkorff on Education McCleary v. State, Part IV
Correlating the cost of education: fund the child.
Jvonkorff on Education  McCleary V. State Part V
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

Wednesday, March 21, 2012

McCleary v. State: what level of scrutiny is appropriate for legislative funding decisions

This is the fourth in a series of posts on the recent Washington Supreme Court decision,  McCleary v. State, enforcing the State's constitutional requirement to assure appropriate funding for public education.  You can jump to prior posts in the series using links below.  McCleary v. State deals with a number of important issues in education finance jurisprudence.  But I've been posting on one aspect of the decision, the part that holds that the State does not meet its constitutional obligation to public education, when it sets funding based on politics rather than a data based costing system.  Unless the state legislature bases funding on credible efforts to determine the cost of required programs, it is acting irrationally and irresponsibly.

We can agree, can't we, that respect for the constitutional requirement to provide a "thorough and efficient system of public schools throughout the state" as the Constitution provides, should afford some level of due diligence, some factual basis, to support the connection between the cost of  education and the revenues provided.   If the legislature were to mandate the construction of a bridge across the Mississippi River, and order that it be built for half of the cost necessary to keep that bridge from collapsing under the weight of traffic, surely we would all recognize that the legislature would be failing to meet its public responsibilities.   When the bridge collapsed, it would hardly be a defense to say, that the bridge was built at half price, because of political considerations.  How would we feel if legislators said,   "We couldn't build a safe bridge in Minneapolis, because we had to spread the money around to St. Paul and Mankato."   If the State orders a bridge built, it had better appropriate enough money to build it to state standards.  

If there is a role for the judiciary to play in policing this concept:  that the state must fund the cost of education that it mandates as part of the "general and uniform system of public schools,"  how should that scrutiny be exercised.   When judges review a law to determine that it is constitutional, they apply different levels of scrutiny, depending on the circumstances.   Suppose for example that the legislature sets the speed limit on trunk highways at 65 miles per hour.  Suppose a citizen is arrested for speeding at 67 miles per hour, and the citizen attacks the speed limit as arbitrary and capricious.  Suppose the citizen claims that the legislature had no reasonable basis to set the speed limit at 65, that the legislature held no hearings, performed no studies, had no data showing a lower accident rate at 65 miles per hour than 70 miles per hour.  Constitutional jurisprudence requires us to apply what is called the "rational basis test."

A memo prepared by the Minnesota legislative House Research explains:   "A rational basis test applies to economic regulation not involving suspect classifications and, thus, to most of the classifications involved in the tax laws.  In general, a classification has a rational basis and is constitutional, if it reasonably related to or has some rational relationship to the objective the legislature sought to achieve.  The rational basis test gives the legislature considerable flexibility in creating classifications."  

This rational basis test, if it applies, has several aspects to it.  One aspect is procedural.  We don't require the legislature to make specific findings to demonstrate that 65 miles per hour is a really good speed limit.  We don't require the legislature even to hold hearings on the speed limit, or to make a record of the data that supports the speed limit adopted.    We don't require that the legislature reviewed specific reports, or that it interviewed specific experts.  When the legislation is challenged in Court, the State can defend by offering evidence that the legislature did not consider.  As an on line law journal article explains, "In Beach Communications v. FCC, for example, the Court explained that “if there is any conceivable state of facts that could provide a rational basis” for a challenged law, it will survive rational basis review. And because the Court “never require[s] a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant . . . whether the conceived reason for the challenged distinction actually motivated the legislature.”  Thus, not only is the government invited to dream up entirely post hoc rationalizations for challenged legislation, it has “no obligation to produce evidence” in support of those rationalizations either".

Now at in a later post, I am likely to argue that Minnesota's current funding process does not even pass muster under this minimum test, the lowest of all low levels of scrutiny, save the level that says, the Courts don't even afford judicial review of any kind.   But in Minnesota, as in the State of Washington, public education is a fundamental right.   The Constitutional education clause calls upon the judiciary to scrutinize legislative funding decisions more closely than that.   And so, one of the most important topics of discussion that we can have in this arena, is to examine levels of scrutiny that seem to make sense... that assure that the constitutional mandate is enforced, without the judiciary completely supplanting the legislative role altogether.  
We'll discuss some ideas for how the judiciary in Minnesota might exercise that function appropriately in the next post.

Links
McCleary v State, Washington's Groundbreaking School Finance Decision
 McCleary v. State, Part I  
McCleary v State Requires Legislature to Base Funding on Actual Cost
Jvonkorff on Education McCleary v. State, Part II
McCleary v State and Determining the Cost of Education
Jvonkorff on Education McCleary v. State, Part III
 McCleary v. State: what level of scrutiny is appropriate for legislative funding decisions
Jvonkorff on Education McCleary v. State, Part IV
Correlating the cost of education: fund the child.
Jvonkorff on Education  McCleary V. State Part V
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

Monday, March 19, 2012

McCleary v State and Determining the Cost of Education

This is the third in a series of posts on the recent Washingto Supreme Court decision,  McCleary v. State, enforcing the State's constitutional requirement to assure appropriate funding for public education.  In  the first post, we introduced the Supreme Court's reaffirmation of the concept that State's constitutional Education Clause must be enforced by the judiciary.  In legal terms, we say that claims against the state challenging constitutionally inadequate funding are "justiciable."   The 79-page McCleary decision covers a lot of legal ground.  In the second post,  we began a discussion of just one of the principles propounded by McCleary, that  the basic education funding formulas did not correlate to the real cost of amply providing students with the constitutionally required education.  In my view, this is the central issue in constitutional funding jurisprudence today.

Minnesota's Constitution, Article XIII, section 1 states:
UNIFORM SYSTEM OF PUBLIC SCHOOLS. The stability of a republican form of government depending mainly upon the intelligence of the people, it is the duty of the legislature to establish a general and uniform system of public schools. The legislature shall make such provisions by taxation or otherwise as will secure a thorough and efficient system of public schools throughout the state.
I believe that if the Minnesota Constitution's requirement to secure a "thorough and efficient system of public schools throughout the state" means anything at all, that it means that the legislature and governor must fund the true cost of the education that they mandate, and that means to engage in a deliberate effort to determine costs.   How can it be "thorough and efficient" to demand that a product be produced for ten million dollars, providing only five? The "thorough and efficient" requirement, I believe, begins with actually making a credible effort to determine the cost of providing that mandated education within the framework established by Minnesota law.  

Any credible costing system must begin by costing the current system of education, based on the legislative requirements we face today.   For example, the current Minnesota law on special education, and the administration of that law, is costing about $1.4 billion per biennium more than the revenues provided.   Now there are experts somewhere who claim that if the laws were rewritten, and if various legal constraints were lifted, that we could deliver a creditable special education program for less that we do today.     But I believe that the Constitution does not allow the legislature to fund public education at a level that might work if all of those requirements were lifted, but then leave the requirements in place.    That is not a thorough and efficient system of public education.  If the legislature wants to fund special education at a lower price, then the constitution requires, I believe, that it implement reforms that are necessary to make it possible to deliver the lower cost services.  That's the lesson of McCleary v. State and cases like it.

The tragedy is that in Minnesota, the legislature never makes even the most minimal effort to determine what the average teaching cost should be, in order to maintain a highly qualified reliable teaching force.  Neither the legislature nor the governor make an honest effort to total up the cost of textbooks, teachers, transportation, and all the rest, and then fund it.   We use a funding system that merely provides revenue in the amount that the legislature wills, and mandates program that the legislature wills, without connecting actual cost to revenue.    Early in his term in office, Governor Pawlenty recognized the logic of this basic idea...that public school funding should be rationally based on data.    To this end, on June 14, 2003, Governor Pawlenty named a 19-member Task Force to focus on Minnesota's school finance system.  The first recommendation of that Panel, found in its Report "Investing in our Future", was that Minnesota’s 21st century educational funding formula should be a rationally determined, learning-linked, student-oriented and cost-based Instructional Services Allocation.  To begin that effort, the Task Force recommended that an Instructional Services Allocation funding approach should be developed for Minnesota schools building on a professional panel's research-based judgment.   Suggestions that the Task Force Study might result in a $2-billion increase in school funding essentially torpedoed that effort and the governor cancelled the task force's work.

A pioneer press article in 2004 explained:
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.
As I explained in the prior post, the State of Washington engaged in a similar effort.  But in Minnesota, the effort to develop cost-based public school funding was derailed even more decisively than in Washington.   As the results began to materialize, the Governor cancelled the task force's work amidst partisan cross accusations.

How should the Governor and legislature go about accomplishing this objective, of funding education based upon valid data and non-partisan logic?   First and foremost, Governor Dayton should restart the costing out process that Governor Pawlenty abandoned.  The Governor had an opportunity to correct Governor Pawlenty's mistake, but instead, he created a task force designed to paper over the problem.  Its mission statement was not to make the true cost of education transparent, but rather to attempt to assure that current funding is distributed as fairly as possible without significantly rocking the boat?   During the next legislative session, the legislature should be setting school funding policy based on the true cost of mandated services.  If it does not, it is time to challenge that abdication of responsibility in court.

 Links
McCleary v State, Washington's Groundbreaking School Finance Decision
 McCleary v. State, Part I  
McCleary v State Requires Legislature to Base Funding on Actual Cost
Jvonkorff on Education McCleary v. State, Part II
McCleary v State and Determining the Cost of Education
Jvonkorff on Education McCleary v. State, Part III
 McCleary v. State: what level of scrutiny is appropriate for legislative funding decisions
Jvonkorff on Education McCleary v. State, Part IV
Correlating the cost of education: fund the child.
Jvonkorff on Education  McCleary V. State Part V
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

Sunday, March 18, 2012

McCleary v State Requires Legislature to Base Funding on Actual Cost

In yesterday's post, I began a discussion of the recently issued Washington State Supreme Court decision in McCleary v. State regarding funding of public education.  Today, I want to carry forward that discussion by focusing on the part of the decision that discusses the legislature's obligation to base the funding formula upon the true cost of the educational program mandated by the legislature.  The case is instructive, because the issues facing the State of Washington bear a striking resemblance to the circumstances here in Minnesota in many respects.   Both states, Washington and Minnesota, transitioned from what the McCleary Court describes as a seat-based education system  to a performance-based system. And both states have failed to adjust their funding approach the significant change in costs that results from that transition.

 In a seat-based system,  the state mandates that each school district supply a certain amount of total "seat-time"  for all students, and it mandates as well, a certain amount of seat time in particular subjects, such as math, social studies, science, reading, the arts and so on.  

In a seat-based paradigm, public education sold time in a chair, with a teacher at the front of the classroom.  The quality of the teaching and the curriculum was locally determined and locally adjusted.  If local schools were confronted with less prepared students, they could spend more to make up the shortfall, or they could adjust their graduation expectations downward accordingly.   Under the seat-based education system,  Minnesota lacked any state mandate regarding the degree of difficulty of the subjects taught to the students occupying those seats, nor any state mandate as to the level of educational proficiency that students must attain in order to be issued a high school diploma.   Under the seat based paradigm, costing public education was much simpler, because you can produce an hour of seat time for any student at the same price, regardless of the student's particular educational challenge. If the funding were reduced, you could increase class size, cut textbooks, and even lower the rigor of a school district's educational expectations.

But once you change to the proficiency paradigm, as both Washington and Minnesota have done,  it becomes necessary to project the actual cost of getting different students to the mandated level of proficiency.   This change, from measuring time in chairs to measuring proficiency occurred in Minnesota the early 1990's.  But Minnesota's legislative and executive branches never adjusted the funding of education to reflect that change, indeed, never developed and implemented methods to cost the new state mandates.  McCleary v State holds that the State does not meet its constitutional obligation to public education, when it sets funding based on politics rather than a data based costing system.  Unless the state legislature bases funding on credible efforts to determine the cost of required programs, it is acting irrationally and irresponsibly.

It stands to reason, certainly, that the cost of delivering students to a pre-set level of proficiency is going to be significantly greater (inflation adjusted), than the cost of simply putting them in classrooms and hoping that they take advantage of  the standard curriculum delivered by the teacher.   Its like the difference between going to the car-dealer and saying, give me all the car you can give me for $20,000, or going to the car dealer and saying, I need a car with 4 wheel drive, exceptional power and handling, and sports-car looks.   Once you specifiy the end result, the cost is likely to rise significantly.

But in both Washington and Minnesota, and in many other states, the legislatures generally focused not on the cost of the newly specified educational result, but instead focused on how much money has historically been provided to public education, and then sought to adjust the level of funding based on existing revenues, tax policy, and the political philosophy of the legislators.

This issue is perhaps the most important issue in school finance.   It permeates the problems we face here in Minnesota, and it was a central focus of the McCleary decision.   The Washington Supreme Court pointed out that State of Washington had actually completed a study by nationally recognized experts Picus and Odden  the results of which led to an estimate that education was underfunded by about $2 billion.  The Supreme Court's opinion details in pages and pages, other studies and reports showing that the current funding system in Washington did not rationally connect to the State legislature's legislative package of basic educational programs. Slip opinion pages 19-35.  The Court explained:

“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.” The report further surmised that “[s]table and significantly increased funding is required to support the evolving needs of our education.  Opinion, pages 23-24.
 The Supreme Court found that the State could not meet its obligation without connecting actual cost to actual revenues:
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 [an] unstable financial foundation......The basic education funding formulas examined by the trial court did not correlate 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.  Because the State’s funding formulas did not correlate to the actual cost of maintaining its basic education program, state funding for “basic education” consistently fell below the mark.  
Whether you think that we have enough school funding, too much, or too little, surely we can all agree that it makes sense that when the legislature determines school funding, it should start by determining how much it should cost to deliver the education that the legislature wants to accomplish.   In my next post, I'll discuss the implications of this important concept:  that the legislature must engage in an effort to connect actual cost of mandated programs to the revenues provided.

Links
McCleary v State, Washington's Groundbreaking School Finance Decision
 McCleary v. State, Part I  
McCleary v State Requires Legislature to Base Funding on Actual Cost
Jvonkorff on Education McCleary v. State, Part II
McCleary v State and Determining the Cost of Education
Jvonkorff on Education McCleary v. State, Part III
 McCleary v. State: what level of scrutiny is appropriate for legislative funding decisions
Jvonkorff on Education McCleary v. State, Part IV
Correlating the cost of education: fund the child.
Jvonkorff on Education  McCleary V. State Part V
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, March 17, 2012

McCleary v State, Washington's Groundbreaking School Finance Decision

On January 5, 2012, the Supreme Court of the State of Washington issued its decision in a constitutional challenge to Washington's school funding system., McCleary. State.   The case is one in a long string of State Constitutional decisions issued in the past several decades, but it is particularly important, because it illustrates an emerging trend in education finance jurisprudence.  

State Supreme Courts have addressed these constitutional challenges in a variety of ways.  Some Courts have refused to enforce their state constitutions, holding that their constitution's education clauses are merely invitations to the State legislature to do their constitutional duty.   An example of such a case is  Bonner v. Daniels, 907 N.E.2d 516; 2009 Ind. LEXIS 472,  where the Court stated:  
Guided as we are by the text of the constitutional provision in the context of its history, we conclude that the Education Clause of the Indiana Constitution does not impose upon government an affirmative duty to achieve any particular standard of resulting educational quality. This determination is delegated to the sound legislative discretion of the General Assembly. And in the absence of such a constitutional duty, there is no basis for the judiciary to evaluate whether it has been breached. The plaintiffs are not entitled to the declaratory relief sought regarding the Education Clause.
We say that these State Supreme Courts regard the enforcement of the state constitutional education clauses as not "justiciable," that is solely political questions to be addressed by the voters at the polls. See also, for example, Coalition for Adequacy & Fairness in School Funding, Inc. v. Chiles, 680 So. 2d 400, 405 (Fla. 1996); Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 29-32, 672 N.E.2d 1178, 220 Ill. Dec. 166 (1996); Nebraska Coalition for Educational Equity & Adequacy v. Heineman, 273 Neb. 531, 550-54, 731 N.W.2d 164 (2007); Oklahoma Education Assn. v. State, 2007 OK 30, 158 P.3d 1058, 1065-66 (Okla. 2007); Marrero v. Commonwealth, 559 Pa. 14, 19-20, 739 A.2d 110 (1999); Pawtucket v. Sundlun, 662 A.2d 40, 58-59 (R.I. 1995).

The majority of state Supreme Courts, however, have found their state constitutional clauses to create positive rights subject to enforcement by the judiciary.  Examples of such cases include Lake View School District No. 25 v. Huckabee, 351 Ark. 31, 67, 91 S.W.3d 472 (2002), cert. denied, 538 U.S. 1035, 123 S. Ct. 2097, 155 L. Ed. 2d 1066 (2003); Lobato v State of Colorado, 218 P.3d 358 (Colo. 2009); McDaniel v. Thomas, 248 Ga. 632, 644, 285 S.E.2d 156 (1981); Idaho Schools for Equal Educational Opportunity v. Evans, 123 Idaho 573, 583-84, 850 P.2d 724 (1993); Montoy v. State, 275 Kan. 145, 155, 62 P.3d 228 (2003); Rose v. Council for Better Education, Inc., supra, 790 S.W.2d 212; Hornbeck v. Somerset County Board of Education, 295 Md. 597, 632, 458 A.2d 758 (1983); McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545, 618-19, 615 N.E.2d 576 (1993);  Skeen v. State, 505 N.W.2d 299, 310-11, 315 (Minn. 1993); Columbia Falls Elementary School District No. 6 v. State, 2005 MT 69, 326 Mont. 304, 311, 109 P.3d 257 (2005); Abbott v. Burke, 119 N.J. 287, 374, 575 A.2d 359 (1990); Leandro v. State, 346 N.C. 336, 347, 488 S.E.2d 249 (1997); DeRolph v. State, 78 Ohio St. 3d 193, 203-205, 1997 Ohio 84, 677 N.E.2d 733 (1997); Pendleton School District 16R v. State, 220 Ore. App. 56, 67-68, 185 P.3d 471 (2008); Neeley v. West Orange-Cove Consolidated Independent School District, supra, 176 S.W.3d 783;Olson v. Guindon, 2009 SD 63 (S.D. 2009); Scott v. Commonwealth, 247 Va. 379, 384-85, 443 S.E.2d 138, 10 Va. Law Rep. 1192 (1994); Pauley v. Kelly, 162 W. Va. 672, 705-706, 255 S.E.2d 859 (1979); Vincent v. Voight, 2000 WI 93, 236 Wis. 2d 588, 622-23, 614 N.W.2d 388 (2000); Campbell County School District v. State, 907 P.2d 1238, 1258-59 (Wyo. 1995);

The Washington Supreme Court's position on this question of justiciability is that "article IX, section 1 [of the Washington Constitution] imposes a judicially enforceable affirmative duty on the State to make ample provision for the education of all children residing within its borders."

Courts that have recognized citizens right to sue to enforce the right to a constitutionally adequate education have taken varying approaches to the central question, how best to apportion the responsibility between the judiciary and the other two branches of government to define and enforce that right.  This question involves a balancing between the legislative function in a democracy and the judicial function inherent in constitutional government.    I intend to discuss the Washington approach in more detail in subsequent posts.    We will see that the genius of the Washington Court's approach is that it creates a framework under which the legislature can continue to perform its legislative function, but in a way which forces the legislature to confront its constitutional responsibility in a more transparent, responsible and accountable way.  

The Washington Court's idea is this.  The Constitution apportions to the legislature the responsibility to define an adequate education.    When a Court is called upon to determine whether that definition is constitutionally sufficient, it must give great deference to the legislature.   Now, if the legislature decided that an adequate education consists of reading at a third grade level and counting to 100, the Court could, and should, strike that ridiculous definition down as inconsistent with the modern understanding of the level of education sufficient to function in a free society.   But by and large, in the last several decades, legislatures have generally been defining basic educational requirements in a responsible way.  And when that happens, the Court should look to state statutory requirements and defer to them.

In this context, then, judicial review consists of determining whether the legislature has made a credible effort to connect the funding level provided to public schools with the true cost of providing that education.   Now many of you are shouting at me, at this point, well certainly most legislatures have conducted that analysis.   Surely, the legislature has carefully costed the programs it requires, and made an attempt to provide the revenues necessary to cover those costs.   But actually, the reverse is true.   In Minnesota, in Washington, in Colorado, and in many other states, the fact is that the legislatures don't make even a half-hearted attempt to derive the cost of the educational programs that they require.   Its not even a part of the dialog between Democrats and Republicans.   This is a bipartisan problem.  When Democrats are in control of the legislature, they don't set the funding formulas based on cost; when Republicans are in control, they don't set the funding formulas based on cost.  Its not part of the legislative process, period.  

It would be as if you decided to build a house with a swimming pool and three car garage, but never consulted with a builder to determine the cost of the lumber, labor, and land.   And so the idea at the core of the Washington decision is that it is irresponsible and constitutionally impermissible for the legislature to go about its  work in this fashion.   The funding process must begin with defining the education that shall be provided.   Then, the legislature must make a rational, fact-based determination as to how much money is required to deliver that education, and that process must control the funding process.

I'll discuss this idea further in my next post.

McCleary v State, Washington's Groundbreaking School Finance Decision
 McCleary v. State, Part I  
McCleary v State Requires Legislature to Base Funding on Actual Cost
Jvonkorff on Education McCleary v. State, Part II
McCleary v State and Determining the Cost of Education
Jvonkorff on Education McCleary v. State, Part III
 McCleary v. State: what level of scrutiny is appropriate for legislative funding decisions
Jvonkorff on Education McCleary v. State, Part IV
Correlating the cost of education: fund the child.
Jvonkorff on Education  McCleary V. State Part V
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