Saturday, May 19, 2012

State Constitution Requires Correlating the Cost of Public Education

From time to time, I've been writing about the approach taken by various State appellate courts interpreting their state constitutions' education clause.   Today, I'm focusing on some groundbreaking decisions by the Wyoming Supreme Court.   The Wyoming decisions represented groundbreaking precedent in the area of "correlating the cost of education," the concept that the Constitution requires the legislature to determine the cost of mandated educational services, and then to fund those costs.    Since 1982, in a series of opinions, the Wyoming Supreme Court had repeatedly held that educational  funding for Wyoming schoolchildren must be a function of state, not local, wealth Campbell County Sch. Dist. v. State, 2008 WY 2, 181 P.3d 43 (Wyo. 2008) (Campbell IV); State v. Campbell County Sch. Dist., 2001 WY 90, 32 P.3d 325 (Wyo. 2001) (Campbell III); State v. Campbell County Sch. Dist., 2001 WY 19, 19 P.3d 518 (Wyo. 2001) (Campbell II); Campbell County Sch. Dist. v. State, 907 P.2d 1238 (Wyo. 1995) (Campbell I).

Wyoming's school finance system presented a number of challenges.  Like most states, Wyoming had adhered to a "local control" approach which led the legislature to abdicate responsibility for the financial stability of local districts.  Heavy reliance on local property taxes led to significant financial inequalities, because Wyoming's great mineral wealth is not evenly distributed throughout the state.   And, significant portions of Wyoming has very low population densities, which created cost differences in the economics of education delivery between very rural and more urban districts.

Correlating the Cost of Education.   But it is not the inequality of school district wealth that I want to focus on here.   In recent years, school finance cases have begun to focus on the critical importance of the legislative process by which school funding is arrived at.  I discussed this issue in a series of blog posts on "Correlating the Cost of Education," and the recent Washington Supreme Court case, 
McCleary v. State.  (See links below).  The idea behind "correlating the cost of public education" is quite simple, really.   It says that the legislature and governor cannot perform their constitutional duty to fund a thorough and efficient system of public education, unless they arrive at that funding by a process which  first identifies the obligation of local public schools, and then goes through a deliberative process by which it determines the actual cost of producing that education.   As I've mentioned in the McCleary series of posts, remarkably, many state legislatures, and many governors' (including Minnesota's), make no effort to determine the actual cost of delivering the education that the State requires--and one of the key holdings of the  Wyoming cases is precisely this:  that the legislature and governor both have an obligation provide for school funding by correlating the cost of education with the funding formula, and then to provide the funding resources that makes it possible for local school districts to meet their educational obligations.

Correlating the Cost of the System Established by the Legislature:   Now right away, some of you are going to say, there you go again, Jerry, demanding more money for public education.   "Why can't you education people live within your means?"   But this post, and the posts that follow aren't focused on more money.   They are focused on the bedrock principle that the cost of public education is driven by the job assigned to school districts by the legislature and the cost framework created by the legislature that we have to work within.   For example, the legislature and State Department of Education impose certain minimum requirements on the construction of school buildings.   If we build a new high school, for example, we will be required to put that building on a tract of land with a certain amount of space.   We could build a high school for less, if we purchased less land, but it is pointless to figure the cost of a new high school construction by costing the construction of a school with little or no land.  Similarly, if we got rid of special education entirely, (obviously not a good idea) we could run our schools for a whole lot less, but it would be foolishness to ignore the cost of special education when we determine the cost of public education in Minnesota, because that is part of the package of services that we have to provide.  And, we know that charter schools currently have a substantially different labor cost structure not available to traditional  public schools.  Costing public education in Minnesota cannot start with the presumption that we can get rid of steps, lanes and collective bargaining, because that's not the cost structure that our legislature has created.   Correlating the cost of public education means costing the services that we have to provide, given the cost structure that state law requires.

Relevance to Minnesota.  In my next few posts, I'm going to discuss the Wyoming decisions in more detail, but I want to explain the relevance of these decisions to the Minnesota experience.   Minnesota is one of those states that intentionally refrains from funding its school districts by correlating the cost of education to state provided funding resources.  The abdication of this responsibility is shared equally by both political parties and by the legislative and executive branch, no matter who controls.   In Minnesota, any effort to actually determine the true total cost of providing the state-mandated education is avoided by both parties like the plague.   Governor Pawlenty originally thought costing was a good idea:  he created a bipartisan blue ribbon panel at the beginning of his administration to accomplish this objective.  But as the panel began to discover that Minnesota's education system was radically underfunded, the governor cancelled the commission.    The Governor could not face, and did not want the public to face, the fact that as currently delivered in Minnesota, the cost of providing the State mandated educational services were, even then, about $2 billion greater than currently provided to local school districts.

But, I regret to say, Governor Dayton has basically followed the Pawlenty model.   Many democrats give him a free pass on this, because they see him as "our governor."   But Governor Dayton has been in office for nearly two years, and there is no sign, at least yet, that the Governor intends to budget for education by first identifying the true cost of providing the education that state law mandates local districts to provide.

What could be the reason for this refusal to identify the necessary costs of public education?     Last year, the Governor convened a panel to look at education funding, but the ground rules for that panel, essentially provided that they had to work with existing revenues.   The Governor, and many in the education community, are afraid of being attacked or humiliated by the no-new-taxes crowd, if we actually identify the true cost of meeting our educational responsibilities.  But cases like McCleary and Campbell tell us that the Governor and legislature cannot meet their constitutional responsibility, unless they face the hard facts.  You wouldn't build a bridge across the Mississippi by convening a panel of engineers and telling them that they must build the bridge for a predetermined cost, whether the bridge is safe or not!  You wouldn't tell them, don't tell us what the bridge is going to cost, because we don't want to know, but a lot of us in the Minnesota education community are doing just that.  

What does Campbell say about this?   The Wyoming Supreme Court in its groundbreaking Washakie decision summarized its holding as follows:
To summarize, considering all of these various factors, the legislature must first design the best educational system by identifying the "proper" educational package each Wyoming student is entitled to have whether she lives in Laramie or in Sundance. The cost of that educational package must then be determined and the legislature must then take the necessary action to fund that package. Because education is one of the state's most important functions, lack of financial resources will not be an acceptable reason for failure to provide the best educational system. All other financial considerations must yield until education is funded.
This suggests another reason why the Governors and legislators would rather not identify the cost of providing the state mandated educational services.   They may recognize that there is no constitutional excuse for failing to providing that funding, and there may be powerful interests who fear that actually funding public education as required by the constitution might lead to unpleasant consequences in other arenas.  Better not to know, then we don't have to confront.

The Wyoming cases are often categorized as equality of funding cases, because they seem to hold that school districts are entitled to equal funding, but that is not the case, really.  In its 1980 decision, the Court held that equality of funding means full funding in accordance with the true cost in each district:
"until equality of financing is achieved, there is no practicable method of achieving equality of quality." Washakie, 606 P.2d at 334. This equality, we concluded, extends to the financing of physical facilities with which to carry on the process of quality education, which financing we found was "tarred with the same brush of disparate tax resources." 606 P.2d at 337. We commersed that "statewide availability from total state resources for building construction or contribution to school buildings on a parity for all school districts is required just as for other elements of the educational process." 
But the Wyoming decisions recognized that equity of funding means providing funding appropriate to need:

As nearly as possible, and making allowances for local conditions, special needs and problems, and educational cost differentials, the education system must achieve financial parity. A cost of education study and analysis must be conducted and the results must inform the creation of a new funding system. To fulfill the constitutional command of "equality of financing will achieve equality of quality," the legislature must state and describe what a "proper education" is for a Wyoming

In my next post, I'm going to write further about the approach taken by the Wyoming Supreme Court and why correlating the cost of public education is important to the future of public education in Minnesota. 

Key Wyoming Cases
Washakie County Sch. Dist. No. One v. Herschler, 606 P.2d 310 (Wyo. 1980)
Campbell County School District v. State 907 P.2d 1238, (Wyo. 1995).
State v. Campbell CountySch. Dist., 2001 WY 90, 32 P.3d 325 (Wyo. 2001)

McCleary Posts
Correlating the cost of education: fund the child. 
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

Thursday, May 10, 2012

It's about Time: Let's Get Real

In today's New York Times, the National "Time to Succeed Coalition" published a full page ad, signed by more than 100 leaders from across the political spectrum, announcing a national movement to increase more learning time in the classroom.  The signatories include superintendents of schools, Mayors, nationally recognized education experts, business leaders, as well as Randi Weingarten, President of the American Federation of Teachers (AFT).  The coalition is calling for more quality time in school:  "Time to learn, time to explore, time to succeed."  Not just adding more time, but well planned quality learning time.

This national consensus reflects a growing consensus that we must address the educational preparation of students who are coming to school unprepared to learn.    Learning requires hard work, persistence, dedication, and of course more time.   When students are behind, a teacher cannot wave a magic wand and catch them up, not even great teachers can't.   Catching up requires the student who is behind to spend more time learning what has not been learned.   Policy makers, researchers and educators are coming to recognize that better curriculum, better teachers, and higher expectations, while important, isn't going to do the job without more time.  

We all know this in the education community, and we are all beginning to give lip-service to this important objective, but when are we going to do something about it, and what?   Its time to get real about finding more time.  

Nobody at the State legislature has a plan to address this problem.  Nobody at the Minnesota Department of Education has a plan.   In our own school district, St. Cloud, we have one of the shortest school days around, but we are deadlocked as an education community without a shared vision of how we would even get to the point where our school days are as long as most other school districts.   According to newspaper reports, Minneapolis teachers had a 38.7 hour teacher work-week, regarded as too short to address the achievement gap, while St. Cloud has a 37.5 hour teacher work-week.   The Minneapolis school district recently increased Minneapolis teachers work week to 40 hours at a cost of $3,000 per teacher as the price of adding 2.3 hours to the workweek.    To put that in perspective, increasing teacher pay by that amount here in St. Cloud would cost the school district $2.1 million per year.  

How are Minnesota school districts possibly going to find the resources to meet the challenge of more time?   The answer is that across Minnesota we are not having a serious and realistic dialog about this.   We are approaching this as if it were business as usual, by which I mean, in a dysfunctional manner.   In the last decade, the St. Cloud school district has made about $25.3 million in "cuts," to a budget with revenue below $100 million.  Here is the history of the cuts that we have made:

2002-2003:  $6.7 million
2003-2004   $4.0 million
2004-2005   $2.0 million
2005-2006   $4.1 million
2006-2007    $ 0.87 million
2007-2008    $1.0 million
2008-2009    $1.8 million
2010-2011      $1.5 million
                    2011-2013     $3.5million (2 year cuts)

In St. Cloud, this year's school district budget will show that since 2006, our operating fund budget revenues have increased from $85 million to an estimated $92 million for 2012-13.    In other words, the cuts that we are making result from the fact that our expenses are increasing faster than our revenues.  The revenue increases are inadequate, that is true.   Our special education deficit is too high. Our operating referendum revenue is insufficient But in that context, we, and virtually every other school district in the State of Minnesota, are cutting back, often deeply.   And part of the reason is that we are raising compensation faster than our revenues are increasing.     I'm not blaming the compensation increases alone. Its the combination of all of these factors.   Some of the cuts we have made during the above time period were necessary to salt some money away to build back the reserves we lost in the late 1990's and early 200's as well.   But basically, school districts in Minnesota have not found a way to maintain the programs that they have, let alone add to them, in most cases.  Many districts are in the process of desperately looking at reducing time, not increasing it.

St. Cloud's proposed 2013 budget shows us with $92.5 million in revenues and $93.2 million in expenses.    But 1.6 million that $93.3 million is one-time money.   Our budget is out of balance without even adding more time.    So we can have all of the national coalitions we want; we can publish full page advertisements with good intentions, but that is all just so much baloney unless we can come up with a comprehensive strategy to achieve that objective in a way that balances revenues and expenses, and Minnesota's state leadership hasn't made even a half-hearted attempt to do that.

Listen:  a lot of the national leadership is talking about charter schools as a way to accomplish this objective.  Most charter schools have existed only a few years.   As start-up businesses, they have lots of new teachers working at the bottom of pay scales.   Some of our Minnesota charter schools have average teacher salaries that are as much as $20,000 or more per year lower than public schools, and some of them even have longer work days at the lower pay scale.  .  It is really hard to maintain that pay scale permanently, because at some point, the teachers have families, buy homes, and start to plan to send their children to college, and so on. So  solving this problem by trying to scale up public education on the charter school model, at rock bottom teacher salaries seems more like an evasion, rather than a solution.

And yet, it seems very unlikely that we can find a solution to the more-time-imperative, unless we can find a way to buy that more time at a price more affordable than the Minneapolis model.   One thing is for sure, the current cycle of cut, cut cut, that has permeated Minnesota education has got to come to a halt, if we are ever going to have a chance to address the needs of 21st century education.  The Minnesota education community and state policy makers must come together and develop a comprehensive systemic solution to bring fiscal balance to Minnesota public education, and that means that system of solving compensation imbalances with draconian cuts must stop. 
 

Saturday, May 5, 2012

Governor Vetoes Continuing Contract Reform: Children Lose Again

Yesterday, I began a series of posts on last-in first out.   The last-in first-out principle is embodied in Minnesota teacher tenure laws and collective bargaining laws.   The effect of the two (tenure laws and collective bargaining agreements) taken together is to require school districts to retain the most experienced and most costly teachers when financial considerations for teachers layoffs.  In my last post, I argued that the last-in first-out legislation, vetoed by the Governor, would not have resulted in the promised benefits.  Call me a last-in first-out skeptic.

But then, the Governor vetoed a second bill from the legislature, which would have provided school district relief from unaffordable compensation increases during the so-called "contract in effect," while bargaining is proceeding.  In today's post, I want to explain the relationship between the two vetoes and suggest  that taken together, these two pieces of legislation, and the accompanying vetoes, are symbolic of the deep dysfunctionality of Minnesot'as education finance system and the complete failure of the two political parties to find a balanced solution to the mess that is Minnesota's school finance system.  

The Republican continuing contract reform simply said that when a labor contract expires, a school district cannot be forced, while bargaining is under way, to spend money that it doesn't have to fund increases that have not yet been agreed to for the next year's contract.   The Republican position is that school boards should not be able to insert pay increases in the current collective bargaining agreement that would take effect in the next bargaining agreement, before that next bargaining agreement is signed.  Some contracts allow such increases, and others prevent them, but the Republicans were trying to prevent careless school boards from granting such future increases when funding is not yet known.    The reason is that school boards don't know, when they sign the current collective bargaining agreement, whether the legislature will provide them with sufficient funding in the next biennium, to take care of any automatic increases.   If those increases are not funded, then they have to be covered by staff layoffs and program cuts, and kids wind up paying the price.   Indeed, one of the major reasons that we see school districts laying off teachers (leading to the LIFO debate) is that they sign agreements calling for future cost increases that school districts  cannot afford.

The background for this problem is  Minnesota's contract-in-effect law.  Under Minnesota's Public Employees Relations Act (PELRA) a public education collective bargaining agreement lasts for two years.    You can find the basic ground-rules for all public labor contracts at Minnesota Statutes Section 179A.20.   When the collective bargaining agreement comes to an end, the kids still need to go to school, and the teachers still have to keep teaching.  Although the newspapers sometimes claim that the teachers are "working without a contract," that's not true at all.   That's where Minnesota's continuing contract law comes into play.  Subdivision 6 of section 179A.20 states:

During the period after contract expiration and prior to the date when the right to strike matures, and for additional time if the parties agree, the terms of an existing contract shall continue in effect and shall be enforceable upon both parties.
But what about the built in raises in a contract, such as steps, lanes,  and health insurance cost increases.  Do those increases go into effect, or don't they in the continuing contract?  The answer is that the old collective bargaining agreement itself answers that question.    In some labor contracts, the continuing contract allows for significant increases that can raise the school district's costs considerably  even before bargaining takes place.  In other school districts, the continuing contract includes very few automatic increases, and the labor union has to bargain for those increases during the negotiations for the new contract.   As I said, in years when the legislature provides school districts with no increases at all, if an individual district has a continuing contract with very significant increases, the result is major cuts even before completion of negotiations.   And, when teachers are cut, the last-in first-out principle says that newer teachers should be laid off first.

The Republican bill vetoed by the Governor read as follows:
Subd. 6. Contract in effect. (a) During the period after contract expiration and prior to the date when the right to strike matures, and for additional time if the parties agree, the terms of an existing contract shall continue in effect and shall be enforceable upon both parties, except as provided in paragraph (b).

(b) A contract term does not continue in effect and is not enforceable after the expiration date stated in the contract, and the parties may not agree to extend or honor a contract term beyond the expiration date of the contract if the contract term would:(1) provide a wage or salary increase to an employee, including but not limited to an increase based on cost of living, longevity, education or training, or performance or merit; or(2) provide an increase in the dollar amount of an employer contribution for insurance benefits above the amount paid under the expired contract.c) Paragraph (b) does not apply to the state employee law enforcement unit, the state employee correctional guards unit, the University of Minnesota law enforcement unit, or to other firefighters, peace officers subject to licensure under sections 626.84 to 626.863, or guards at correctional facilities.EFFECTIVE DATE.This section is effective the day following final enactment. For a collective bargaining agreement that expired before the effective date of this section, the requirements of this section apply to limit wages and benefits to the levels and amounts in effect on the effective date of this section.

Now comes the dysfunctional part.   There are two rational  solutions to this problem that arises from automatic cost increases, and the two parties have agreed to neither of them.   One of them,  which would be fair to teachers and to children, would allow districts to grant automatic future funding increases, as the Governor evidently favors, but to provide adequate state funding for those increases, so that the increases don't get funded by program cuts and teacher reductions.   But the Governor hasn't provided for funding for these increases, and so the effect of the Governor's veto is to leave those districts in Minnesota that have significant escalators in their collective bargaining agreements vulnerable to having to make major cuts every two years, to fund them.  

The other solution is the one proposed by the republicans, to bar increases until the school district agrees to them, after finding out what the legislature is going to provide in funding support.  But the Governor's veto has stricken that alternative leaving many districts in the lurch.   

What we have in Minnesota, then, is a dysfunctional system in which the Democrats consistently support a school finance and labor system which encourage school districts to make long-term financial commitments that they cannot be sure they can afford, and in which the Republicans consistently underfund school districts so that they must fund those cost increases by taking it out of the hides of children.      This entire debate about last in, first out, is a manifestation of that dysfunctional system.    

When you are elected to a Minnesota School board, you are soon presented with budget scenarios that show that your current collective bargaining agreement poses a substantial risk, if carried forward into future years, that your school district will be financially destroyed.   You are constantly advised by the people in the know that this is just the way things work, and that you have to accept budgeting and planning practices that put children at risk, that risk complete destruction of public education as we know it.  You have to become acculturated to the idea that you should make terrible decisions, when viewed from the perspective of the future, but accept that the consequences of those bad decisions will happen several years later, when people have forgotten who caused them.   We need, I suggest, for our leaders at the state level, republicans and democrats, to come together and provide us with a new financial framework that puts children first, but also provides realistic and reliable financial support to pay teachers appropriately, without putting our children's education constantly at risk.   In my view, doing this is what the Minnesota Constitutional guarantee of a thorough and efficient public school system means.  

The Governor and the Republican majority have failed us this year because each side has advanced a vision for public education finance that cannot command the support of the other.   And the result is another two years of school finance dysfunctionality not worthy of a great nation and a great state.

Thursday, May 3, 2012

I got the last-in first-out blues......

I got the last-in first-out blues.  What are they?
The last-in first out blues come from watching politicians all over the country begin to fight over last-in first-out teacher hiring and layoffs, as if the ability to fire senior teachers was somehow the linchpin of all school reform.   This fight, has deadlocked the Republican legislature and our Democratic governor and polluted the education reform landscape, destroying our ability as a state to marshall a coalition for true massive reform.  
I view this fight as a great evasion, a great diversion away from doing what really needs to be done.  Those of you who have read my prior posts know that I tend to take a "plague on both your houses" point of view, and this post is no exception.  I believe that Republicans are destroying the prospect for true reform by focusing on teacher tenure,  instead of supporting smart reforms that could really transform public education.  I believe that Democrats are destroying the prospect for true reform, by failing to advance smart reforms from their side as well.  As long as we focus on the tenure battle, both sides can fight the good fight for their respective die hard bases, while true reform passes us by.  

Now last-in first-out is the system we have in public education, both in our tenure statute and in most collective bargaining agreements, that says that when teachers are laid off at the end of the year through downsizing of faculty, that you must lay off the least experienced teachers first.   Last-in first-out is rooted in the tenure system that exists in public education and other forms of government civil service.  Tenure laws arose partly to prevent politicians from dismissing civil servants for political reasons; they were one of the great governmental reforms beginning at the end of the 19th century, first at the national level and then later spreading to local government as part of the progressive movement.   One of the assumptions made by anti-tenure reformers is that if we were to free up management to get rid of "bad teachers," that the result would be a major significant improvement in the quality of teaching.    But it is also possible, that another result of elimination of tenure would be the gross politicization of the teacher-hiring and firing system..

If we eliminated tenure, we would be increasing the risk level for persons entering the teaching profession.    Already teacher turnover rates are quite high, particularly in schools serving low-income, non-white and low-achieving student populations.  See HOW TEACHER TURNOVER HARMS STUDENT ACHIEVEMENT,  (National Bureau of Economic Research, 2011).   Nationally, about 30 percent of new teachers leave the profession after five years, and the turnover rate is 50 percent higher in high-poverty schools as compared to more affluent ones.  Teacher turnover rates also tend to be higher in urban and lower-performing schools.   It is simple economics that raising the risk in any profession requires an increase in the reward -- ie rates of pay -- in order to attract people to that profession.   If we make it easier to fire teachers, we make that job far less secure, and merely to keep quality even, we will have to raise pay significantly to compensate for that increased risk.   The folks that are campaigning for greater flexibility to fire teachers seldom if ever propose that public school budgets should be increased to compensate for the increased insecurity that goes with those jobs.  It is really ironic that often the greatest champions for the marketplace in teachers, refuse to acknowledge that increased flexibility in layoffs must be compensated for with greater investment in average teacher compensation.  

Another reason that we have our current seniority system, of course, is that the seniority system is critical to the effectiveness of unions.  That's one of the main reasons that the fight over seniority breaks down so heavily these days around political parties.   A central feature of collective bargaining here in Minnesota is the ability of unions to push up wages beyond management's perceived ability to pay, and to ultimately force management to inflict major cuts in order to pay teachers more.   If management could respond to pay increases by cutting the positions of the most senior teachers, why then those senior teachers would be far more reluctant to demand increases in pay.   Many of the people who claim to be pushing for elimination of last-in first out for quality reasons also see the reform as a way of undermining the power of unions, thereby undermining a key pillar of the liberal political movements. And, many of the folks who claim to believe in the sanctity of collective bargaining, on the labor side, refuse to provide local school districts with the funds necessary to pay the resulting wages.  So one of the benefits of the current system is that it allows wages to go up without having to raise the state budget by the amount necessary to fund those costs.  But that's an argument for another day, and another post. 

And so the debate over seniority talks about improving public education, but the subtext is a whole lot more about republicans undermining democrats and democrats defending a key coalition partner.  

Aside from the political opportunity to defend or undermine public labor unions, I believe that the last-in first-out debate is undermining our ability to develop consensus around some major reforms that would genuinely result in the maximum benefit to public education.   What reforms, you say?   That will be the topic of my next post on the last-in first-out blues.