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