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"
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.
McCleary v State, Washington's Groundbreaking School Finance Decision
McCleary v. State, Part IMcCleary 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