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

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