Vergara Decision Raises Questions about Minnesota Anti-Tenure Suit

Forslund and Vergara:  The Forslund suit recently filed in Minnesota District Court challenges aspects of tenure and seniority protections afforded to licensed teachers.  The Forslund litigation is a close relative of the California litigation, Vergara v California, which is based upon  theories almost identical to the Minnesota suit Forslund v. Minnesota .  This post begins a discussion of the recent decision of the California Court of Appeals in Vergara v. California and considers what we can learn from Vergara as we ponder Forslund.  Its going to take a couple of posts to do that job:  my goal is to write in a way that assists non-lawyers to wade into the debate intelligently.    Since I've been critical of the theories presented in both Forslund and Vergara, I want to emphasize that my criticisms rest on a failure of the Forslund complaint to identify the correct constitutional flaws in the Minnesota system.  I'm not writing to defend the status quo:  I write to suggest a failure of Forslund's complaint to understand that our public education system is a complex web of interlocking interdependent legal and financial structures which must be reformed as a whole to fix our broken system.

So now let's turn the the California Vergara litigation and see what we can learn that might be useful here in Minnesota.

Facial Constitutional Challenge:  The Vergara plaintiffs brought a "facial constitutional challenge" to the tenure and seniority provisions of California’s Education Code. The Vergara plaintiffs alleged that California's seniority and tenure provisions violate California  Constitution’s guarantee that all citizens enjoy the “equal protection of the laws.” (Cal. Const., art. I, § 7, subd. (a).)

When I say that the Vergara plaintiffs made a "facial challenge" to these laws, I'm using a legal term of art.  A facial claim to a statute means that the plaintiffs contend that the statute itself is unconstitutional, as opposed to the way in which the statute is administered or applied.   For example, a statute that prohibits a demonstration against the government in the downtown areas would be struck down as facially invalid, because violates the first amendment no matter how it is administered.  On the other hand, a statute that requires a permit to demonstrate downtown, would likely survive a facial challenge, but its enforcement could be enjoined if permits were denied to persons who protested against certain causes and not others.    Both Forslund and Vergara, (Minnesota and California) make facial equal protection claims, alleging that some students are taught less than others and consequently are denied equal protection.   Both Forslund and Vergara also allege that tenure and seniority protections violate the two states education clauses of their respective constitutions, (but the California education clauses differ from that of Minnesota's.)

 California's Education Clause:  California's Education Article IX section 1 provides that:

 A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.

Article IX Section 5 of the California Constitution provides that:

The Legislature shall provide for a system of common  schools by which a free school shall be kept up and supported in each  district at least six months in every year, after the first year in which a school has been established.

Minnesota's Stronger Education Clause.  The California Education clauses are not as powerful as Minnesota's constitutional education clause.  Like California's constitution, Minnesota's constitution, certainly prevents invidious discrimination in our educational system, but the Minnesota Constitution has an education adequacy clause which requires the legislature adequately to fund a "thorough and efficient" system of education,.   Why have the Forslund plaintiffs failed to use the full force of the Minnesota Education clause to seek broader relief on behalf of the students and parents they purport to represent?! Let's save that question for another day, even though its really important.


Now I've said that the California litigation contended that the California tenure and seniority statutes  cause an unequal education "on their face," such that there was no way that they could be administered effectively to produce an equal education.  The allegation of facial invalidity was important to the plaintiffs, (or at least the funders of the California litigation), because they wanted to get rid of the challenged seniority and tenure provisions entirely, instead of fixing the way they were administered.   

Allegation that Seniority and Tenure Cause the Achievement Gap--the Grossly Ineffective 5%:  To prove that seniority and tenure are responsible for the failure of California schools to close the achievement gap, the Vergara plaintiffs needed to blame the gap on seniority and tenure, and that was a tall order.  They began by focusing on what they called "grossly ineffective teachers, which they defined as the bottom five percent of all educators.   The Minnesota Forslund complaint parrots this approach.  According to the Complaints, most teachers, approximately 95% are not grossly ineffective.    But, they contend,  about 5% of the teachers are grossly ineffective, as measured by the progress that their students make.    These teachers, the complaints allege remain in the system because allegedly, neither Minnesota or California are able to rid their school systems of this grossly ineffective 5%. 

Reliance on Value Added Evaluations:  In both cases, the plaintiffs measure gross ineffectiveness using so-called value-added  measures of effectiveness comparing the growth in learning measured by standardized tests to the average growth of all students.  In Minnesota, we use value added measures in evaluation, but the consensus of most professionals is that value added measures are only one measure of competence that should be considered along with a variety of other measures of competence.  However the thesis of the complaints is that value added measures are the gold standard in teacher evaluation, and indeed the Minnesota Forslund complaint criticizes Minnesota's decision to combine test score growth with other measures of effectiveness.

Super Duper Due Process Protections:  How allegedly, do these grossly ineffective teachers survive in the system?  In both cases, California and Minnesota, the complaints allege that teachers have "super-duper" procedural due process rights, (their words, not mine) which cause administrators to avoid efforts to terminate teachers even when they are grossly ineffective.   According to the California complaint, administrators get stuck with these grossly ineffective teachers, because California's tenure laws give them only 18 months (Minnesota administrators get 36 months) to evaluate teachers, and hence allegedly California administrators merely roll the dice and allow teachers to receive tenure, even though their competence has not yet been established.   Then, both Complaints allege, the super duper tenure protections are so onerous that administrators simply give up and settle for gross ineffectiveness. (In Minnesota, the Forslund complaint alleges, these super duper protections include the right to a lawyer, the right to adjudication by arbitration and other due process rights.)  

Do Administrators Really Grant Tenure and Retain Grossly Ineffective Teachers to Save Litigation Costs?  Now as we think about this contention: that Minnesota administrators are not firing ineffective teachers because our seniority system makes it too expensive to complete a firing, we should think about the economics of that argument.  Assume for example that a mid-career costs a school district (salary and benefits) about $25,000 per year more than a starting teacher.  That means that if an administrator can terminate the employment of a grossly ineffective mid-career teacher and replace her with a new teacher, the administrator can save $25,000 per year for the next ten to 20 years-- a saving of from $250,000 to one half million dollars over the life of the grossly ineffective teacher's remaining contract, simply by terminating the mid career ineffective teacher, and by hypothesis, can dramatically improve the district's educational results at the same time.  Are we really sure, then, that administrators avoid terminations because they want to avoid litigation costs, or might there some other reason?

 Now there are some problems with Minnesota's termination system:  arbitrators are chosen by the parties in a mutual strike system that gives the arbitrators an economic motivation to rule in favor of labor and management about evenly.   So I'm not here to defend the system as perfect, but it should give us pause to assume that cost is the primary reason that administrators fail to terminate grossly ineffective teachers (assuming that this is the case).   But this topic, we save for a different time and a different post.

More Defects in the Vergara-Forslund Logic:  California administrators have only 18 months to evaluate new teachers before tenure is granted.  Minnesota administrators have three years to evaluate teachers, twice that in California, but the Minnesota complaint contends that this is still not enough time.  Moreover, the Forslund complaint contends, the Minnesota evaluation system is defective, because only 35% of the teacher's evaluation score is determined by a "value-added" method.  Basically, the complaint is contending that Minnesota administrators cannot identify a grossly ineffective teacher unless they use the Value Added system exclusively, and that, my friends is a preposterous contention. 

Now here, let us pause to remember the difference between a facial challenge and challenge to the implementation of the law as applied.   If it were, for example, alleged that administrators are granting tenure to grossly ineffective teachers because those administrators are themselves incompetent to evaluate quality teachers, then a court might order relief against the administration of the tenure evaluation, rather than eliminate tenure. Is it possible that Plaintiffs in Forslund have identified a problem with administrators and administration, rather than the system of tenure and seniority?! 

This brings us to a common allegation in both complaints, word for word copies of each other.   Both complaints allege that California and Minnesota schools and their administrators ( I quote exatly)

"Hire And Retain Grossly Ineffective Teachers At Alarming Rates"

This raises a rather troublesome question for both California and now the Minnesota litigations.  How does it come to pass that Minnesota and California administrators responsible for hiring and retaining teachers pick candidates who turn out to be grossly ineffective, and do so "at alarming rates?"   Why, in Minnesota, do administrators (allegedly) grant tenure to grossly ineffective teachers, after observing their teaching, evaluating the supposed alarmingly slow progress of their students.  And, if the hiring is occurring at alarming rates, why then are only 5% of teachers grossly ineffective.   If grossly ineffective teachers are being hired at alarming rates, how is it that they fail to accumulate in the teaching force and stay their building up great reservoirs of incompetence. 

Let us remember that in Minnesota, a teacher who fails to prove her competence does not have to be given tenure.  There is no review, no procedure, that can reverse an administrator's decision to deny tenure.  When an administrator has doubt, she can deny tenure without proving incompetence, indeed without having to prove any reason at all.  And, if there is doubt, the administrator can extend the probationary period by consent, and if consent is not given, can deny tenure and replace?  So maybe something else is going on! 

Can 5% of teachers actually cause the Achievement Gap?   How also, we might ask, is it possible, that the primary flaw in Minnesota's allegedly failing system caused by 5% of the teachers who are grossly ineffective.   The complaint suggests that once a student falls a bit behind as a  result of the ineffective teacher, she is doomed for the rest of her academic career, even if the next teachers who follow are highly effective.   This is an allegation that ought to be carefully examined, because in the schools identified by the complaint, the allegation is that an extraordinary number of these students come to the school already way behind even before they are exposed to a single grossly ineffective teacher.  Unless every last one of these students meet their first grossly ineffective teacher in kindergarten or first grade, how is one to explain the achievement gap in these grades?  Because students are coming to school behind, these schools cannot be effective unless they have a system in place that accelerates the progress of students at a pace greater than one year per year of schools.  It cannot possibly be, then, that a student who loses time is doomed for life:  these public schools are in  the business of catching up and surpassing and we need to ask how schools can organize themselves to do vastly more than an ordinary teacher can do in one year.   Now, that's not by any stretch of the imagination to justify even one grossly incompetent teacher.   I'm just suggesting that we take these allegations with a healthy dose of skepticism and recognize that even hiring super duper teachers is not going to be good enough:  we need super duper leaders, with super duper curriculum and super duper training.  The concept of making it all happen merely by getting rid of 5% of the worst teachers is just, pardon my french, plain bunk.  

There is something about these allegations, in fact, that makes one want to ask whether part of the problem is grossly ineffective administration of the personnel responsibilities of school districts that serve students who lack social and economic status.  Or possibly, that their are working conditions and rewards in these schools that discourage teacher retention.  (That's all assuming the claim that schools do retain grossly ineffective teachers, and that remains to be seen).   We'll have more to say about this in the next posts.  And, we'll explain why these defects in logic caused the California Court of Appeals dismissed the Vergara complaint, even though the California system is vastly more problematic than Minnesota's in virtually every respect.

Forslund suit insufficiently ambitious

Part 2

I've begun a series of posts to discuss the challenge to Minnesota's tenure and seniority system brought in Forslund v. State of Minnesota.  The plaintiffs in this new litigation hope to use Minnesota's constitutional education clause to work a substantial improvement in the education provided to Minnesota students, and especially our minority and low income populations.    I'm really sympathetic to this goal, but I believe that the relief that Forslund is not founded on the changes necessary to provide public schools with the necessary tools.  

The overarching goal--to reform Minnesota's public education system -- is tremendously important.  So important, indeed, that it is absolutely critical that anyone who undertakes this task ought to be driven by a deep understanding of the complexities of public education so that the remedy makes a real and lasting difference for Minnesota students.   While the plaintiffs are absolutely right that Minnesota's current school system is unconstitutionally broken, the litigators have failed to think big enough, and have focused on alleged flaws -- seniority and tenure -- that are not at the heart of our broke system.  

Because public education is so complex, its impossible to undertake this task in a few short paragraphs.    In this second post, I focus on the fundamental change in the mission assigned to public education, and hence to teachers, a change that occurred here in Minnesota about 25 years ago unaccompanied by the structural and financial changes necessary to accomplish that new mission. 

Before 1990, Minnesota's public education system was assigned the narrow task of delivering classroom instructional opportunities to students.  State law, and the regulations implementing that law focused on the number of course hours delivered to students, not what students actually learned.   Prior to 1990, state law merely required schools to deliver a minimum number of hours of instruction in math, science, social studies and other areas.  Local districts had the freedom to graduate students who had taken the required number of course hours, whether the students mastered those subjects at a high level or not at all.  

We had what James Conant called a teaching based system instead of a learning based system.  When a teacher delivered instruction, it was understood that some students would take maximum advantage of the offered instruction, and other students would not.   In many school districts, students were grouped  for instruction, with the lower performing students taking courses that were pre-defined as leading to lower expectations.    Our economy was still providing decent wages in semi-skilled employment, and often students expected to learn a trade upon graduation at a level that today would be regarded as not-proficient.  

We often  describe this old delivery system as  as a seat-based education system  (as opposed to a performance-based system).  Our product was time seated at a desk with a teacher at the front of the classroom, not proficiency.  The plaintiffs in Minnesota's seminal school constitutional challenge, Skeen v. State, told the Court that their districts were delivering the legally required education to their students.   They made that concession, because Minnesota's education laws then simply required that students attend classes, but did not require that they learn to any level of proficiency. 

 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 Minnesota's seat time based system, 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.   Commonly, the teacher was asked to deliver a standard curriculum, and it was expected that certain students would not master that curriculum. 

As stated above, 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.   The seat based system had implications for the way in which we trained teachers, the way in which curriculum was designed, the way in which schools were led, and the way in which teachers, principals, students and school districts were evaluated.    It would have been virtually unheard of in the 1950's to criticize a teacher, principal or a school district because some students were proficient and some were not.   The idea that all students could graduate at high levels of proficiency did not enter into the way in which we structured any part of public education.  

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.  The curriculum was not designed to assure that the lower quartile of a teacher's class would transition to the upper quartile.  One of the fundamental problems with public education today is that education is still structured in virtually the same way that it was back when some kids were expected to be proficient, and others expected to be far less than proficient.  

However,  by the 1990's the federal government began to demand that public education implement a proficiency based system.  Teachers were no  longer deemed successful if they competently delivered a standard curriculum to their class.   Now, they were expected to take all of their students and deliver them to proficiency, no matter how far behind they are, no matter whether they receive support at home, no matter the individual challenges that they might be experiencing.   No Child Left Behind was the mantra, and it meant that the mission assigned to school districts would now be radically different.

This radical change in mission  should have radically changed the entire structure of education, but our legislative process is not up to that task. Fundamental changes run afoul of important interest groups: schools of education, unions, advocates for charter schools, taxpayer advocacy groups, the leisure industry, advocates for disadvantaged groups and advocates for the advantaged.   Our legislative process consists of a series of tweaks and minor adjustments proposed to make modest improvements that offends noone. 

Two Governors, Dayton and Pawlenty, have both convened task forces to examine Minnesota's dysfunctional school finance system.   In each case, those governors prohibited the task force for making ambitious proposals to increase the funding for public education.  If we want truly to understand what must be done to create a system in Minnesota to meet the new mission of education, we need to begin to think anew about redesigning every aspect of public education to accomplish this new mission.

• In the Vergara litigation, the California Court of Appeals noted that many  factors other than tenure and seniority contribute to problems in the distribution of teachers.  Administrators need to evaluate teachers differently; they need to train, mentor and provide professional development differently.    
• Teachers are no longer successful if they merely deliver a one size fits all standard curriculum to their students.   Simply firing the bad teachers and hiring good ones in their place will not transform our system.   There are deep seated structural problems in the way schools are managed, that prevent us from creating an effective labor force.  
• Our funding system is badly broken.   The layoffs about which Forslund complains often result from inadequate funding, or from bargaining settlements which require districts to cut what should not be cut.  In lean financial years Minnesota school districts settle their contracts by cutting programs that are necessary to make teachers effective.   
• In the Vergara litigation, the Court of Appeals pointed out that the percentage of teachers actually deemed incompetent was quite small, under 5%.   Today, we have overwhelming research based evidence that  teachers need to be trained to deliver instruction differently, and need to be supported differently, and organized differently, if they are going to accomplish the goals of the new proficiency based system. They need more time to plan; more time to develop strategies to address the needs of specific students.  In a teaching based system, a teacher can plan a single lesson for all of her students.  Teaching occurs, but for some students learning does not.  In a learning based system, the demands on teacher planning time rise exponentially, but we do not pay for that time, and our labor laws do not allow us to make teachers give us that additional time for nothing. When we strike only at "incompetency", we are failing to focus on the 95% of teachers who really make a difference for kids.
• Under a proficiency based system, a new paradigm of leadership is required.  Principals need to lead differently, but they also need assistance from teacher leaders, and our compensation system, and the job description of experienced teachers, has not been redesigned to accomplish this objective.   We still reward teachers for taking courses in a university, even if those courses fail to contribute to the school's mission and objectives.  Management needs to change the way in which teachers collaborate and the system currently makes it very difficult for districts to implement best practices.
• Under a proficiency based system,  teachers need to be planning together, and developing more complex curriculum to accommodate the students that they have.   If it is no longer acceptable to say that Juan or Mary is failing to learn because they are just not up to the task, then we need to be providing teachers time to accommodate their classroom to meeting Juan and Mary's needs.  Our current system makes it extraordinarily difficult to find the time  to implement the professional development, the planning time, the teamwork  time necessary to accomplish education's new mission. 
• There is increasing evidence that some students who are behind when they arrive in school need more instructional time, more adult support, and more instructional days, to catch up.   But Minnesota has made no effort to deliver the resources to provide that time, nor has Minnesota provided management the ability to implement these changes.    

When you radically change mission of public education, it is unthinkable that you can continue to fund education at the same level as before.   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 a key constitutional decision 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.

The plaintiffs in the Forslund litigation have ignored this constitutional component in their complaint.  Could it be that the people funding the litigation are not willing to support more school funding, even if more funding is required to educate the children they purport to represent?

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 specify the end result, the cost is likely to rise significantly.

But in  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.

Minnesota's system of  public education is not thorough nor is it efficient.  If we want to fix that problem, we need to fix the whole problem.   Meaningful change requires changes in the leadership of schools, and we need to look deeply at whether school administrators are up to the task, and if not, how we can make necessary changes?    Meaningful change is going to require more staff development, more mentoring, more supervision, more teacher leaders, and more planning time and for many students more instructional days. If the folks who are seeking to fix Minnesota's education system have started out based on a no-new-taxes, no new revenues pledge, then they are undermining the very constitutional mandate that they seek to enforce.

Very probably, we are not going close the achievement gap if students who come to school far behind are expected to close the gap in the same number of instructional days and instructional hours as their advantaged peers.  These tenure litigations are proposing to remove job security from teachers: are they then expecting teachers to work for the same pay in  a position which has no job security as they would work when provided that job security.  Are teachers going to be expected to work longer hours and  more instructional days, at the same rate of pay?   How is it happening that we are attracting to the profession graduates of education schools who we now deem incompetent.   Are the leaders who hire them and grant them tenure incompetent?  Or is it possible that the market for teachers is clearing at a different  level, because there is something about the working conditions and the leadership in these schools that drives teachers away?

Past posts on education and the constitution

• Minnesota's Education System is Unconstitutional Part I

• Let's Look at the Skeen Case to understand Minnesota's Constitutional Education Clause

• Minnesota's Education System Is Unconstitutional--the Change in State Minimum Basic Education  

• Education and the Constitution (3): State Minimum Proficiency Requirements Fundamentally Changes the Cost of Education
• 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 Constitutional Challenge to Tenure Misses the Mark

Jvonkorff on Education and its Facebook Sister "Minnesota School Finance System is Unconstitutional" have woken up from a Spring slumber as a result of recent activity in the Minnesota Courts.  In past years, Jvonkorff on education has written extensively on  state school constitutional litigation.   As some of you know, I've advocated passionately in favor of bringing a broad based constitutional litigation.    However, several years ago, the Dayton administration reversed over a decade of almost uninterrupted school finance neglect, thus providing some relief to school districts.   The blog and its Facebook sister decided to give constitutional claims a rest in hopes that the new administration would begin to pay attention not only to school finance, but also to the major systemic problems that render Minnesota's system of public education unconstitutional.

But now, a team of lawyers have brought to Minnesota an anti-tenure litigation, Forslund v. State.  The suit narrowly challenges Minnesota's tenure laws and its Continuing Contract laws and claims that these laws are the proximate cause of an unconstitutional denial of adequate education to Minnesota's minority and low  income students.  

 In the next few weeks, I'm going to use this new Forslund litigation as an opportunity to focus on why Minnesota's current legal framework for public education is, indeed, unconstitutional, but why this newest litigation  is founded on a deeply flawed theory.  I'm going to argue, instead:

• That Minnesota's Constitution requires the legislature to establish a thorough and efficient system of public education
• That the system needed to meet the constitutional mandate is far more complex than the Forslund complaint recognizes. 
• That the complaint cherry picks just one aspect of the the overall system, an aspect that not  among the most critical problems in Minnesota's legal framework, nor would reforming that one aspect alone move the current system from its unconstitutional state to one that is thorough and efficient and therefore constitutional
• That the legislature's neglect of the constitutional requirement is deeper and broader than the Forslund complaint and its attorneys understand. That the complaint presents an unsophisticated myopic view of what must be done. 
• That the complaint performs a public service in that it brings to the fore a critical issue that we should be facing in Minnesota:  the problem of constitutional non compliance, but
• Like the Skeen case before it, because this litigation focuses on a very narrow issue, there is a grave danger that the litigation will do far more harm than good

This resort to the courts is by no means the first in Minnesota.   Back in February of 2010, we began a series of posts on Minnesota's Skeen case, a constitutional challenge asserting that the way that property tax revenue was made available to certain rural and suburban school districts violated Minnesota's uniformity clause.  Links to some of those posts are found below. 

More recently, a team of litigators have challenged Minnesota's school system, once again,  on the grounds that it is unlawfully segregated. This litigation too seeks to make incremental changes preferred by specific interest groups, but offers no hope of fixing the deep systemic failures in our system. 

Now, on April  14, several parents, aided by a national advocacy group, has challenged Minnesota's tenure and continuing contract laws.  The thesis of this litigation is simple.  Bad teachers are causing children to fail.   Good teachers are leaving the profession, because their contracts are not renewed and they are supplanted by the seniority system, which allegedly keeps mediocre experienced teachers while laying off superior less experienced good teachers. Here again, a special interest group is attempting to use the Minnesota Constitution to challenge an isolated feature of the overall system, but the remedy they seek, and the feature they challenge is just a tiny and almost insignificant component part of the over all flawed system.  

Over the next few weeks, having awoken from our Spring slumber, we're going to explore the strategies in this constitutional litigation with a heavy dose of skepticism.   The underlying thesis of our posts will be this:  that creating a thorough and efficient education system, one that works for all students, is vastly more complex than most lawyers, ivory tower professors, and litigation funders understand.   Almost all of the constitutional litigation brought in Minnesota and in other states are brought and funded by advocates for a narrow solution, one that serves their purposes, however well-intended that their goals may be.   The Skeen ligitation was brought on behalf of a group of "stable and growing" mostly rural and suburban districts to improve the amount of property tax revenues or other revenues coming to their districts.  They were using the constitutional guaranty, as is their right, to achieve a narrower purpose -- to improve their own revenues.   For that reason, other groups of school districts, fearing that the Skeen plaintiffs gains would be their loss, intervened and challenged the Skeen plaintiffs efforts to "fix" school taxation.

In a number of states, plaintiffs have brought constitutional adequacy litigation with the primary purpose of increasing funding.   One of the most thoughtful is the McCleary decision in Washington State, noted below.   These cases have a broader purpose--to provide school districts funding that is correlated to the state mandated basic education that the Constitution requires.   Minnesota surely is ripe for such a litigation, for our state routinely under-funds mandated special education by over a billion dollars a year.   But increased funding alone cannot solve the constitutional defects, because to have a meaningful impact, I will argue, increased funding must be connected to systemic reforms that assure that the funding actually makes a difference for students.   Some adequacy litigation has been funded by organizations not fully comfortable with the reforms that are necessary to fulfill the promise of increased funding.

Now here comes a litigation, however well intended  in which the plaintiffs have sought to make two selected reforms in education, which in and of themselves cannot and will not create the systemic changes required to fulfill the constitutional mandate.  If the goal of these plaintiffs is truly to reform the educational system in ways that educate all students, why then have they chosen one narrow problem, and proposed a remedy that will not and cannot alone bring as the thorough and efficient adequate public education system that our children need?

 The education clause of the Minnesota Constitution 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.”

The Constitution mandates a general and uniform system of public schools.   It is the system that is broken, not one small aspect of that system and I'll be writing over the next weeks, as time permits, on the constitutional significance of that idea.   We lawyers tend to think of public education in simplistic terms.   Teachers whose students perform poorly are bad teachers; teachers whose students perform well are good teachers.   If we just get rid of the bad teachers, and bring in some good teachers, wow, all of a sudden great things will happen.    Teachers, we are told are the most important component of the education system, so surely if we just replace bad teachers with good, the achievement gap will narrow and vanish.  

Let us agree that certainly our students are better off if we can keep good teachers and replace teachers who cannot teach effectively.   But what if its not so simple to accomplish that objective, unless we make broad systemic reforms?  It is common for example, for lawyers and pundits, divorced from the real world of schools, to dismiss  the importance of principals.   But what if it is true, and I believe that it is, that assuring that a school is led by a highly competent instructional leader, a principal, is far more important and critical to creating great schools.  What if one of major reasons that so-called bad teachers are ineffective, is the failure of leadership, supervision, professional development, mentoring, and implementation of appropriate robust curriculum, in a building led by an ineffective poorly trained principal.   If the lawyers framing the complaint in the new Minnesota litigation had read Chenoweth's outstanding "It's Being Done" trilogy, perhaps great instructional leadership might have played a greater part in their prayer for relief.

But wait:  great instructional leaders are only one component in the system.  The system of education today is one of the most complex organizations in our society today, with one of the most difficult tasks imaginable.   Changing one component of that system only, is not going to do the job, and it is a fools errand to try.   Resources are part of the problem.  The way in which resources are allocated between labor and other components of the system is part of the problem.   The complete failure of the legislature to correlate resources to education's assigned tasks is a part of the problem.  The abject failure of Minnesota's public health system to provide supports to the growing number of students who need counseling, mentoring, intervention and adult role models is a major part of the problem.   If we are going to fix the system, we need to have a deeper understanding of the complexity of the system.  

So kudos to the plaintiffs for having the courage to step up to the plate and demand that something be done.  But what a tragedy that they have chosen an unambitious, deeply flawed theory of what it is going to take to fufilll Minnesota's constitutional mandate  And for more on these points, stay tuned.

• Minnesota's Education System is Unconstitutional Part I

• Let's Look at the Skeen Case to understand Minnesota's Constitutional Education Clause

• Minnesota's Education System Is Unconstitutional--the Change in State Minimum Basic Education  

• Education and the Constitution (3): State Minimum Proficiency Requirements Fundamentally Changes the Cost of Education
• 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