Thursday, April 30, 2015

Time for Minnesota leaders to face the true costs of a Proficiency Based Education System

Over the last seven years, I've had occasion to engage legislators, MDE Commissioners, state senators and representatives during their biennial efforts to fund public education for Minnesota.   The remarkable thing has been that never has any of these leaders sought to ground their positions on public school funding on what it should cost to deliver the services and results that the State of Minnesota mandates.   These are all conscientious people, public servants all of them.  But their point of view is evidence that there is something gravely wrong in the way our political class approaches public school funding.  

How is it possible that smart and conscientious leaders could simultaneously mandate that the public school system deliver certain results, and to deliver them in a specified way, without ever attempting to investigate how much it should really cost to do that.   This problem has both practical and legal consequences, and in the next several days, I want to explore both of them.  The issue--of connecting what you want to accomplish to the cost of accomplishing it, is eloquently discussed in the Washington Supreme Court decision, McCleary v. State, perhaps the most carefully reasoned decision on school finance law ever written.

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.

Minnesota School Finance System is Unconstitutional

Today, I begin a redux of posts designed to examine the constitutionality of the way that our legislature and Governor decide on biennial appropriations for public education.    Several years ago 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.  There have been a number of approaches to implementation of state constitutional guarantees of a thorough and efficient system of public education.   But I think that the McCleary case is the best, because it enforces the constitutional provision by forcing the legislature to confront the cost of the system that it establishes.

 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.