Thursday, April 14, 2016

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 


4 comments:

  1. "Uniform system of public schools." If you take this clause seriously charter schools are clearly unconstitutional - plus they are not accountable to local school boards - taxation without representation.

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  2. In League of Women Voters v State the Washington Supreme Court struck down a charter school law on the grounds that it was not a "common school" as required by the Constitution. The Court ruled "a common school, within the meaning of our constitution, is one that is common to all children of proper age and capacity, free, and subject to and under the control of the qualified voters of the school district. The complete control of the schools is a most important feature, for it carries with it the right of the voters, through their chosen agents, to select qualified teachers, with powers to discharge them if they are incompetent.Id. at 504, 99 P. 28. Here, because charter schools under I–1240 are run by an appointed board or nonprofit organization and thus are not subject to local voter control, they cannot qualify as “common schools” within the meaning of article IX."

    I think that the claim that charter schools are unconstitutional in Minnesota would be difficult to sustain as an abstract principle: I think that charter schools have to be looked at the entire system that exists in Minnesota, and the way in which they actually function within that system.

    League of Women Voters of Washington v. State, 184 Wash. 2d 393, 405, 355 P.3d 1131, 1137 (2015), as amended on denial of reconsideration (Nov. 19, 2015)a common school, within the meaning of our constitution, is one that is common to all children of proper age and capacity, free, and subject to and under the control of the qualified voters of the school district. The complete control of the schools is a most important feature, for it carries with it the right of the voters, through their chosen agents, to select qualified teachers, with powers to discharge them if they are incompetent.Id. at 504, 99 P. 28. Here, because charter schools under I–1240 are run by an appointed board or nonprofit organization and thus are not subject to local voter control, they cannot qualify as “common schools” within the meaning of article IX.

    League of Women Voters of Washington v. State, 184 Wash. 2d 393, 405, 355 P.3d 1131, 1137 (2015), as amended on denial of reconsideration (Nov. 19, 2015)

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  3. I don't get your comment. Charters aren't under the control of local taxpayers in Minnesota, and there's no way they are "uniform" - the whole point of charters is that they are NOT uniform.

    From a practical point of view, the fact that charters are not under local control, and are not "uniform" has led to scores of scandals, rip-offs and other maladies.

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  4. I agree with JVK's analysis. Minnesota does not define a "system of public education" in a way that clearly excludes public funding of private schools, as is the case with the WA state constitution. Minnesota adopted the first charter school law. Has its constitutionality ever been challenged?

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comments welcome