A Million Words a Year

The other day, I was headed out the door at the office at days end.  In the reception area was a mom, our receptionist, and her teenage daughter sitting quietly in a waiting area chair reading a book, Sisterhood of the Traveling Pants, a 320 pager.   I engaged in some polite banter and then asked if the book was homework.  Well, sort of, she said.   We have to read a million words she stated, sort of proudly.   A million words?   How many words is this book, I asked, did you count them?  No, you can find out how many words for any book by googling them.

She's a freshman at Pierz high school, a small school district tucked away in rural eastern Morrison County in the rich farmland that nature has bestowed upon that region of Minnesota.   "They read 100,000 per quarter -- four quarters per year in seventh grade, 200,000 per quarter in 8th grade, and then a million per year in high school" says Mom proudly.    And so, it develops that they have to take a short online test to prove that they read the book that they selected, and if no test is available, they can write a book report.   Mom says that when she gets to an interesting or difficult word, they talk about it.  "I learn a lot too," she says.

Just a day before, I ran into an immigrant parent with his adult son at the coffee shop.   The son attended an Asian College in a former British colony, and we chatted about the difference between American expectations and Asian expectations.   The competition is intense, he said.  Everybody who wants to make something of himself or herself works, because this is our avenue to success.  In America, he said, many students expect to make it into college, and then to do well there, whether they work hard or not.  Overseas, you cannot make it in school, unless you work hard every day, and every week of the year.   Lot's of Americans, even their teachers, think that homework is a waste of time.  But I think that reading a million words a year is not a waste of time, and probably one of the central events in many young people's development up there in Pierz. 

So, a million words I thought.  I navigated over to the Pierz school district website, and I found a newsletter to parents about the million words campaign, and I've copied the entire message and pasted it here, because I think it speaks for itself better than I could.
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Choice Reading/Stealing Minutes

"Many of you have had students coming home visiting with you about the need to read a million words this year at the high school. If they haven’t mentioned this, you  should ask them. Why a million words? Isn’t that a lot? We know reading is important  and at the high school we have always asked our students to read, but until a  few years ago we didn’t focus on this as a whole staff.

 We have since made some changes to what we “require” our students to read to hopefully engage even those that don’t enjoy reading. We have opened up the  “choice” to include millions of books and not just the books that have a “reading  counts” test or the books on our library bookshelves. We have also allowed students  to read outside of his or her Lexile. We found that in order to have students  enjoy reading they must have “choice” in what they read.
 
A million words was chosen because research shows that by reading a minimum  of 20 minutes per night students improve their academic success and also improve their ability to show proficiency on standardized tests. In an age where students are  surrounded by technology we don’t want them to lose sight of the importance of reading.  So, instead of picking up the device, pick up a book (one of their choosing)  and read with the goal of using the device after the 20 minute read. (20 minutes/day X 173 school days = 3,460 minutes – estimated to be 1,800,000 words). One can  see this is completely achievable and will allow proven improvement on standardized test scores and student achievement overall.
 
Stealing Minutes is when instructors allow time during his or her class period for students to read. Students are asked to bring a novel to each class every day in case they complete the assigned task or lesson early. We also have grade-level teams agreeing to certain days where their lesson for the day is reading. We have put great things in place to encourage and offer time for our students to read."

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So everybody reads books of their choice.  But everybody reads, with degree of difficulty hinging on the students' readiness.   "One can see this is completely achievable and will allow proven improvement on standardized test scores and student achievement overall."  But more than that, students are growing, day by day, learning that they can make a daily contribution to their future.   What a great idea Pierz.  Congratulations.

MDE Proficiency Data Promotes False school district comparisons

Jvonkorff on education is taking a break from writing about the education clause to discuss a practice maintained by the Minnesota Department of Education (MDE) for many years that is designed to destroy the reputation of public schools that educate economically disadvantaged students.

The Department annually publishes comparative statistics showing the proficiency performance of schools and districts across the state.  The data is released with a tremendous amount of hoopla, or hand wringing, depending on the year.  Data in the hands of school districts is "embargoed" from publication, for months, so that the MDE can release it all at once, and so that only the Department's description of the data will be heard on the day of release.  The Department facilitates electronic release to the media, encouraging them to publish side by side data comparing schools so that the public can supposedly see which districts are doing well and which districts are doing poorly.  

But the fact is that the comparisons suggested by MDE are in many cases, just plain bunk.   Today's post provides an example of how this practice of side by side comparison can be deeply misleading, and contribute to the increasing racial and economic racial and economic isolation of our schools.  Let's take a look at two neighboring school districts where I live in Central Minnesota, St. Cloud and Sauk Rapids.

• Sauk Rapids is 87  percent white, 3.4 percent black,  32 percent free and reduced lunch eligible, with 1.1 perecent English Language Learners.  

• St. Cloud is 50 percent white, 33 percent black ( large proportion of which are English Language Learners), 60 percent free and reduced lunch eligible, with 23 percent English Language Learners.  

Both school districts have comparable special education populations.

Now in today's America, there are going to be a lot of parents who believe that they can be sure that Sauk Rapids is a "better" school system, because of course, everybody knows that demographics is destiny.   Many white parents, and many black parents, looking at the above demographic numbers, will right away jump to the conclusion that a district with St. Cloud's demographics must be inferior, well, just because........ An exodus from urban schools is under way.   Surely the Minnesota Department of Education doesn't want to accelerate that, do they?   They wouldn't report statistics that intentionally reinforced parents concerns about urbanizing school districts, would they?  Or, would they?  Suppose you are a parent wondering where you should live:  where your children should go to school.  

MDE reports that Sauk Rapids reading proficiency rates for all students is 56% and for St. Cloud 48 percent, thus reinforcing the predisposition (or prejudice) if you will, that some people have.  (Now keep in mind, that Sauk Rapids proficiency report includes a quite different mix of students). But the message that MDE is conveying--and its a completely false message--is that Sauk Rapids is eight percentage points superior to St. Cloud.  It's not an apples to apples comparison, but its almost impossible for the average parent to discover a valid comparison.  MDE reports data in a way that harms the public image of school districts educating disadvantage students.

Suppose you are a parent of a white student, or a free and reduced lunch eligible student, or suppose that you are the parent of a non Free and Reduced Lunch eligible student.  Here are the actual facts:

• In Sauk Rapids, reading proficiency percentage rates for white students (all) have fallen 8 points since 2014, and they now stand at 56%
• In St. Cloud, reading proficiency scores for white students (all)  have increased 7 points since 2014, and they now stand at 68%, 12 points higher than Sauk Rapids. 
• In Sauk Rapids the proficiency rates for White Free and Reduced Lunch students,  have fallen 9 points since 2014 and they stand at 48 percent.  
• In St.Cloud the proficiency rates for White Free and Reduced Lunch students have increased by seven points and they now stand at 52%, four points higher than Sauk Rapids. 
• In Sauk Rapids the proficiency rates for White Non Free and Reduced Lunch students have fallen 7 points since 2014, and they now stand at 64%.
  In St. Cloud, the proficiency rates for White non Free and Reduced Lunch students have increased seven points, and they now stand at 75%. 

Both of these school districts are fine school districts.  But if a parent merely looked at the all district proficiency data they would mistakenly assume that the district with more challenging demographics must be doing worse in reading, but in fact, for each demographic group, the district with the more challenging demographics is doing significantly better.  MDE's reporting is actually encouraging students to make school choices on misleading data. 

Ok.  So now you complain, I'm only talking about white students, but I can't compare demographics apples to apples with a school district that hardly has any minority students.  But here is what I can tell you about St. Cloud.  We have a long way to go, but here are some encouraging statistics, I think:

Non FRL Students

·        73 percent of our non FRL students meet or exceed the state proficiency cutoff, compared to 71 percent statewide.

FRL-Non ELL Students

·        43 percent of our FRL-non ELL students meet or exceed the state proficiency cutoff, compared to 42% of FRL-non ELL students statewide.  Here too, our performance scores are slightly superior to the state’s for the same demographic group. 

Hispanic Students

·        Non ELL Hispanic students reading proficiency rate rose 12 percentage points in three years (to 47.7%).   In 2014 the rate was 15 points behind the state proficiency rate.  It is now only 4 percentage points behind. 

Black Students

·        Non ELL Black reading proficiency rates have risen by 7 points in four years, more than double the rate of increase statewide for demographic peers.  

We have a school choice system in Minnesota, one of the first in the country to encourage school choice.  The theory behind school choice is that parents should have the information that they need ot make sound choices.  Unfortunately, MDE doesn't take its responsibility to provide that data in a statistically sound way, and as a consequence it is inadvertently encouraging racial and economic segregation.

Appellate Court Mangles the Law in Cruz Guzman Decision Part 2

In the our last post,  Jvonkorff on Education continued a series on one of the most important education issues to face Minnesota's Courts in this century -- whether Minnesota's Education Clause is enforceable, and if so, under what circumstances.   The issue arises in the recently decided Cruz-Guzman case, in which plaintiffs are trying to force the state to integrate racially isolated metropolitan schools.    The Court of Appeals decision will soon be reviewed by the Minnesota Supreme Court, and the outcome could reaffirm, or destroy, one of Minnesota's most important constitutional rights.  

Fundamental Right to an adequate education that meets all state standards.   In Skeen v State the Minnesota Supreme Court affirmed that the Education Clause of Minnesota’s constitution provides a fundamental right to an education, including the right to “what is necessary to provide an adequate level of education which meets all state standards."    The Court did not order any relief in that case, because the Skeen plaintiffs did not contend that students in their school districts were failing to receive an education which met state standards, as they existed at the time Skeen was decided.   In November, 2015, several plaintiffs contended that students in racially isolated Minneapolis and St. Paul were receiving an inadequate education, but they did not identify the state standards that were not being met.   When the District Court refused to dismiss the case -- allowing the case to be prepared for a trial on the merits -- the State of Minnesota (Governor Dayton, Commissioner Casellius, and Attorney General Swanson) appealed..  They argued, among other things, that the plaintiffs' claim that they were receiving an inadequate education was not "justiciable."  

Justiciability:  Rights Protected by the Courts.   Jvonkorff on Education has previously written on the concept of justiciability here.    Its a complicated concept, but basically the state was asking the  Supreme Court to hold that enforcement of the state constitutional education clause in this particular case could not be decided by the courts, but was a matter entirely between the legislature and he voters at the polls.  Suppose for example, the legislature passed a law prohibiting citizens from saying prayers in the public square.    The First Amendment certainly protects that right, but if a Court wanted to avoid protecting that right, it could claim that the authors of the Constitution didn't want the Courts to protect First Amendment rights, since the First Amendment simply says that the Congress shall make no law ....prohibiting the free exercise [of religion].  Now, you would say, that is ridiculous:   the constitution uses the word "shall."  Surely the authors of the constitution intended that citizens could prevent the Congress from making a law that directly contradicts the first amendment, and of course you would be right.   Free speech is a fundamental right:  and if the Congress acted to prohibit its free exercise, the Courts would certainly step in and protect citizens against that law.

But the right to an adequate education stems from the Education Clause which also uses mandatory language.  In fact, the Minnesota Supreme Court has twice indicated that the Education Clause contains mandates which may be enforced.  In 1913,  the Supreme Court, in discussing the Education Clause, pointed out that other language also in the Constitution already gave the legislature power to operate a system of public education.   If the drafters of the Constitution merely wanted to give the legislature powers, without a mandate,  they had no need to add the Education Clause. The Education Clause did more than merely grant the power, it mandated that the legislature actually establish a system of public education whether it wanted to or not.  Writing for the Court, Justice Hallam wrote that the education clause  was not merely a discretionary grant of power, but was a mandate.  The Education Clause

"were not [merely] a grant of power to the Legislature, for all the powers there mentioned would have existed without such grant. They were inserted as a mandate to the Legislature, prescribing as a duty the exercise of this inherent power." 

Then again, in the Skeen case, mentioned above, the Supreme Court in 1993 once again  explicitly stated that the rights under the Education Clause were a mandate of the highest order, one that created a fundamental right, just like freedom of speech.  

Cruz-Guzman Court Holds that Plaintiffs' Case is "Not Justiciable"    So that brings us back to the Court of Appeals decision in Cruz-Guzman.   As we said, the plaintiffs claimed that a racially isolated education is, by its very nature,  an inadequate education, and therefore under the Education Clause, the Minneapolis and St. Paul schools, traditional publics and charters, should be required to integrate in some fashion.  But the plaintiffs did not identify any state standard that the Court could identify as being violated.   

Now, in response, the Court of Appeals might have said, "look, desegregation is not a right under the Education Clause.  It is an equal protect issue, and the courts have never forced school districts to integrate under the equal protection clause."   Or, it might have said, "we see no basis for holding that a racially isolated schools are inadequate, as long as they are delivering an education that meets state standards."   Either of these decisions would have been reasonable and founded on  past precedent.  But instead, the Court of Appeals said, in effect, adequacy is solely a matter for the legislature, and the Courts should not interfere, because its up to the legislature to deliver an adequate education, and if it fails to deliver that education, its not an issue for the judicial branch.   In the course of arriving at that decision, the Court of Appeals adopted a rather strange train of logic. 

We'll discuss the Court of Appeals rather tortured logic in the next JvonKorff on Education post.

Cruz-Guzman Decision Part 1   
Minneapolis Black Families Lead the Way in Fleeing to Other Schools
Past Series on Education and Constitutional law:

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's School Finance System is Unconstitutional, Part I
Minnesota's School Finance System is Unconstitutional, Part II
Minnesota's School Finance System is Unconstitutional, Part III
Minnesota's School Finance System is Unconstitutional, Part IV

Cruz Guzman Court of Appeals Decision Mangles the Constitutional Education Clause

In the last several blog posts Jvonkorff on Education has been writing about one of the most important education issues to face Minnesota's Courts in this century -- whether Minnesota's Education Clause is enforceable, and if so, under what circumstances.   The issue arises in the recently decided Cruz-Guzman case, in which plaintiffs are trying to force the state to integrate racially isolated metropolitan schools.    The Court of Appeals decision will soon be reviewed by the Minnesota Supreme Court, and the outcome could reaffirm, or destroy, one of Minnesota's most important constitutional rights.

The Cruz-Guzman plaintiffs are using the "Education Clause" of our constitution to require the state to unwind the growing racial isolation of many of our urban schools. Our Education clause requires the legislature to create a uniform, general thorough and efficient system of public education.

The issues in Cruz-Guzman are complicated, and frankly, the Court of Appeals decision in Cruz-Guzman contains what Jvonkorff on Education regards as series of critical errors.  But the issue is so complex, it may take me a few posts to develop a full understanding of what the Court said, and why.    

By now, some of you are already asking why a court would still be considering an effort to integrate racially unbalanced schools more than 50 years after the Supreme Court held that racial segregation in public education was a violation of the equal protection clause of the fourteenth amendment.  Wait a minute, you say, I though that the school integration issue was resolved back in 1954 in Brown v. Board of Education.   And that would certainly be correct, but Brown v. Board of Education dealt with what we lawyers call "de jure" segregation, that is segregation by law.
 

In each of the cases considered by the Supreme Court in Brown, as the court explained:

  "minors of the Negro race,had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race."

The plaintiff children's schools refused to admit them, because of their race, even though they lived geographically in the attendance area for the school to which they were denied admission.   The Supreme Court recognized that using the law to deny children admission to a school because of their race, was a public statement alleging that they are inferior.  "To separate them from others of similar age and qualifications solely because of their race," the court stated,  "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."  The Court continued:

The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs: "Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.

Brown v. Board of Education found that when the state or its instrumentalities use the law to separate the races, or keep kids from enrolling in a school based on race, that this is a violation of the 14th amendments "equal protection clause", which states:

No state shall ….deny to any person within its jurisdiction the equal protection of the laws

.Thus, the fact that segregation was enforced by law had really two influences on the Brown court.   First, the Court found that separation of the races using the force of law was inherently unequal, because of the impact it had on children who were being intentionally separated.  Second, state action was required in order to trigger the fourteenth amendment, under the language of that amendment.    If a private school segregates, there is no state action, and so that would not be actionable under the fourteenth amendment.   (That's why state and federal laws have been enacted to bar racial discrimination in commerce: to remedy racial segregation in the private sphere.)   But to fall under the 14th amendment, state action is required.  As the law of Brown v Board of Education developed, federal courts refused to apply the Brown decision to schools that are racially isolated, but not as a result of the action of the state or its instrumentalities.

    That explains, then, why the plaintiffs in the Cruz-Guzman case decided to use the Minnesota constitutional Education Clause as a hook to try to combat the growing racial isolation of metropolitan area public schools.   The Education Clause states:

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 problem with using this clause to force school districts to "desegregate" racially isolated schools, is that there is no direct language that naturally lends itself to extending the Brown v. Board of Education decision to schools that are racially isolated not by law, but by socio economic forces, or by choice.  The racially isolated schools targeted by Cruz-Guzman do not deny admission based on race.  So, the plaintiffs in Cruz-Guzman hit on the idea of alleging that the Education Clause requires Minnesota schools to provide all students with an adequate education, and that racially isolated schools fail to do that, because they are racially isolated. 

Their arguments had two elements.   First, they argued that racially isolated schools inherently provide an inadequate education, because diversity is a constitutionally required component of an adequate education.   Second, they argued that there is a cause and effect relationship between racial isolation and the educational outcomes of students:  that if you move a student from a racially isolated school to a diverse school, that student's education is more likely to be adequate.

    So now we have laid the foundation for understanding how the District Court and the Court of Appeals handled this claim, and why, in the course of deciding this issue, the Court of Appeals came to some rather remarkable and terribly wrong conclusions.   For that, we will have to wait for the next post in the series.  The answer involves a failure by the plaintiffs to found their claim on actual state standards in law, and a rather remarkable, and totally indefensible application of some careless language taken from a decision of Justice Scalia in a gerrymandering case. 

Cruz Guzman Decision Part 2 

Past Series on Education and Constitutional law:

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's School Finance System is Unconstitutional, Part I
Minnesota's School Finance System is Unconstitutional, Part II
Minnesota's School Finance System is Unconstitutional, Part III
Minnesota's School Finance System is Unconstitutional, Part IV

Constitutional Officers Should Protect and Defend the Constitution in Cruz-Guzman

In a series of posts, I've been writing about the decision of Governor Dayton, Commissioner Cassellius and Attorney General Lori Swanson to defend the Cruz-Guzman case by claiming that the Courts cannot enforce the rights conferred by Minnesota's Constitutional education clause.  In this post, I write to complain that by undermining our constitutional rights, our constitutional officers are not upholding their constitutional duty to protect and defend the constitution.

In the Cruz-Guzman case plaintiffs are trying to force the state to integrate metropolitan schools using the constitutional education clause that requires the legislature to create a uniform, general thorough and efficient system of public education.   There are many good defenses to this claim.  It is a rather straightforward argument to show that the constitutional education clause does not speak to school integration at all.   But, regrettably, the state defendants, all constitutional officers, Dayton, Cassellius and Attorney General Swanson,  have chosen the defense that would do the most damage to public education and in so doing, have chosen to undermine the constitution that they are sworn to protect and preserve.   They chose to claim that rights conferred by that clause are "not justiciable," which is lawyer's fancy talk for the claim that the right exists in name only, but that the courts cannot enforce them.

In a nutshell, the Attorney General has asked the Supreme Court to rule that only the legislature has the power to protect the constitutional right found in our constitution, Gutting the constitutional protection of public education has far greater long-term implications than the relief sought by plaintiffs in Cruz-Guzman.   Our state’s education clause stands as a constitutional Colossus, warning all three branches of government that they must assure future generations the right to a free, appropriate and adequate, thorough and efficient, system of public education.   Without a role for the judiciary, a constitutional right is not a right at all.  Just imagine what could happen to our first amendment freedoms of expression if the current presidential administration could inflict penalties on newspapers for publishing news that the administration does not like, and yet the Courts could not enforce first amendment freedoms.   Imagine what would happen if the courts ruled that the constitutional protection against search and seizure was “non-justiciable” as Dayton, Casellius and Swanson's position in the Supreme Court suggests for the right to education.   

How could it be that our constitutional officers, sworn to uphold and protect the Minnesota Constitution, could be trying to win a case by undermining the Minnesota Constitution.   For over a century the Minnesota Supreme Court has recognized that the express language of the Constitutional education clause was written in mandatory terms using the words duty and shall.  In its 1913 decision, the Court wrote:

The object of these provisions is ‘to insure a regular method throughout the state, whereby all may be enabled to acquire an education which will fit them to discharge intelligently their duties as citizens of the Republic.’. These provisions were not a grant of power to the Legislature, for all the powers there mentioned would have existed without such grant. They were inserted as a mandate to the Legislature, prescribing as a duty the exercise of this inherent power.  Associated Sch. of Indep. Dist. No. 63 of Hector, Renville Cty. v. Sch. Dist. No. 83 of Renville Cty., 122 Minn. 254, 258, 142 N.W. 325, 327 (1913).

The constitutional protection provided to public education is one of our most sacred and important state rights.  The early Minnesotans who inserted the protection in our constitution realized that our democracy depends upon a strong and vibrant system of public education.  It is not beyond the realm of possibility that a future legislature and governor might attempt to destroy or cripple Minnesota’s system of public education system.   Indeed, shortly after Brown versus Board of Education, some states attempted to close the public school system in their states, in order to circumvent the Brown decision.  In their Amicus brief to the Supreme Court a group of Minnesota constitutional scholars wrote that the position being taken by our State constitutional officers:

…..…..would potentially grant state agencies unfettered discretion over foundational constitutional matters. The notion of granting the political branches any form of unreviewable discretion over the racial composition of schools should unsettle anyone familiar with the legal history of race in education.  It cannot be that, 63 years after Brown v. Board of Education, a plaintiff alleging unlawful and intentional educational segregation has no constitutional pathway into court. It certainly cannot be that the obstacle standing in the plaintiff's way is the unreviewable legislative discretion to operate a purposefully segregated school system.

Our constitutional officers have a duty, first and foremost, to protect and defend the constitution.     In Cruz-Guzman, they have chosen to try to win a case by sacrificing one of Minnesota's important constitutional rights, the right to a free public education.   It would be as if, the Attorney General defended a case alleging that the legislature had infringed the free speech liberty, by claiming that the courts cannot protect free speech, because what is free speech is "not justiciable.  There was no legal excuse for our constitutional officers to try to win this case by gutting the constitutional protection,  Indeed, there are much narrower and less damaging ways to defend the State’s interest at oral argument, Here are some ideas:

• The Minnesota legislature has comprehensively defined an adequate education in legislation.   See Minnesota Statutes §120B.018 subdivision 2, 6 (academic and required standards); §120B.02 (Educational Expectations and Graduation Requirements For Minnesota's Students); §120B.024 (course credit and graduation requirements). Minnesota Rules Part 3505 (academic standards for reading, math, science, and other subjects).  Mn Stat § § 120B.11(c) (world’s best workforce); §125.03 (special education).   The Supreme Court should defer to the legislature’s description of what an adequate education is, unless the legislature’s actions are wholly irresponsible.   The proper defense in Cruz-Guzman is to say that the plaintiffs’ case does not rest on the legislature’s definition of an adequate education.

• The Cruz-Guzman case could have been decided more narrowly focusing on whether the plaintiffs’ attempt to add to the definition of an adequate education finds support in the constitution.  Courts are constrained to avoid deciding issues with sweeping import, when those issues are not necessary to the outcome.  The state's attorneys can argue instead that the Supreme Court should limit its decision to holding that there is no basis for overriding the legislature’s laws on this particular issue.

•   In this connection, the legislature has passed legislation on integration in education.   The legislation called for an administrative rulemaking process.   Before reaching the constitutional issues, the Court should first have deferred to the statute and the rules.   

• Finally, the Attorney General should make it crystal clear that this case involves the integration claim, and only the integration claim, and hence, there is no occasion to re-examine the prior decisions which recognize the enforceability of the constitutional right or to make a sweeping decision impacting issues not currently before the Court.  

Past Series on Education and Constitutional law:

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's School Finance System is Unconstitutional, Part I
Minnesota's School Finance System is Unconstitutional, Part II
Minnesota's School Finance System is Unconstitutional, Part III
Minnesota's School Finance System is Unconstitutional, Part IV

Three Branches of Government are Responsible to Provide a Minnesota Adequate Education

Three branches, not one, play a significant role in implementing Minnesota's constitutional education clause.

Executive Branch Role:   If the Governor and Department of Education fail to provide the legislature with the data it needs to create and maintain a thorough, efficient, general and uniform system of education, the legislative branch simply cannot do its job, and frankly, neither Republican nor Democratic governors have stepped up to their constitutional duty.  The constitution requires maintenance of a thorough and efficient system of public education,.   A legislature is not equipped to create a system on its own:  the executive must lead with data, policy, and proposed legislation.

We see an example of the importance of the executive branch in developing an effective system in the current health care debacle.  A legislature needs the executive branch to provide professional expertise necessary to conduct legislative business.  

The failure of governors from both parties courageously to address the financial needs required for adequate education is an example,  Both Governor Dayton and Governor Pawlenty convened commissions to examine Minnesota's school finance system, but in each case, both governors barred their respective commissions from telling the legislature what it would cost to provide all students with the state mandated statutory system of education found in law.  No Governor, not Pawlenty, Dayton, Anderson, Ventura, nor any other, has ever submitted a budget to the legislature that would fund the programs required to meet state standards for all students.  No Governor, has ever even conveyed the cost information to the legislature so that the legislature could conduct its business with information on what is actually required to fund an adequate education.  

The executive branch's role is not limited to budget.   The executive branch has an important role in courageously describing the administrative changes necessary to deliver education of high quality to all children.   To be effective, this leadership must deliver adequate information on what structural issues are impeding success. 

Part of the problem with Minnesota's education system is that the executive branch lacks a tradition of providing information that might offend political interest groups.    For example, the impact of seniority and tenure is basically off the table under Democratic administrations.  (I don't suggest that seniority and tenure needs to be changed:  I merely suggest that an honest review of that topic is politically off the table.)  Similarly, the impact of labor union's involvement in metro school board elections is off the table as well.      If we are to truly have a thorough and efficient, general and uniform system of public education, we need a cultural change in the executive branch that would  deliver quality information, outside of the political arena, on what it is going to take to meet our educational goals.

Legislative Branch Role:   The legislative branch plays a central role in delivering the adequate education that the constitution requires, and the legislature is expressly assigned a leading role in Minnesota's constitution.  But it would be a huge mistake to suggest education is the one and only governmental function which is the responsibility of the legislative branch alone. The Minnesota constitution treats public education as a specially important function.  It would be strange indeed, if the authors of our constitution meant to immunize this most important function from constitutional review.   The twin Washington cases, Seattle School District and McCleary, help explain the proper relationship between the legislature and executive in defining educational adequacy.

 In the Seattle School District case, the Washington Supreme Court recognized that, (as in Minnesota), the State's Constitution allocates the primary responsibility to define educational adequacy (what the court referred to as the required basic education) to the legislature.  Seattle School District No. 1 v. State, 585 P.2d 71 (1978):

“While the Legislature must act pursuant to the constitutional mandate to discharge its duty, the general authority to select the means of discharging that duty should be left to the Legislature,” the Court held.

Judiciary's Constitutional Role:
But a constitutional requirement becomes meaningless if the legislature can ignore it entirely.  If the constitution requires the legislature to deliver a high quality education, the constitutional right is meaningless, or nearly so, unless there is the potential for judicial oversight.   If the legislature were overtaken by anti-public school advocates, who thereafter began to dismantle the public school system, surely the Courts would have an obligation to intervene.   Indeed, one of the really troublesome implications of the Court of Appeals Cruz-Guzman decision, is that it might be read to suggest that a rogue legislature could cripple the public school system without any judicial remedy.

The Seattle School District decision the Washington Supreme Court contains the answer to this careless and perhaps unwitting suggestion that the constitutional mandate is an empty meaningless gesture.   The legislature cannot cheat the next generation of citizens by shortchanging them of the basic education necessary to thrive in today's economy.  The constitution mandates more:

The State's constitutional duty goes beyond mere reading, writing and arithmetic. It also embraces broad educational opportunities needed in the contemporary setting to equip our children for their role as citizens and as potential competitors in today's market as well as in the market place of ideas. (citing Robinson v. Cahill,  (New Jersey 1973).... Education plays a critical role in a free society. It must prepare our children to participate intelligently and effectively in our open political system to ensure that system's survival.  It must prepare them to exercise their First Amendment freedoms both as sources and receivers of information; and, it must prepare them to be able to inquire, to study, to evaluate and to gain maturity and understanding. The constitutional right to have the State “make ample provision for the education of all (resident) children” would be hollow indeed if the possessor of the right could not compete adequately in our open political system, in the labor market, or in the market place of ideas. 

In short,  the legislature's responsibility is informed by its constitutional duty, and the Court has the right to review whether the legislature has conducted its duty seriously.

Recall in our last post, we pointed out that Minnesota, like many other states in the 1970's and 1980's imposed no substantial educational requirements on local districts.   One of the major developments in constitutional education law during this time period was the emergence of  judicial decisions defining constitutionally required basic education.   This development in some state Supreme Courts occurred in tandem with the "standards movement," in which states began to develop robust and rigorous academic content standards in legislation or in regulations.

 Legislative standards and constitutional adequacy standards occurred in parallel,  as professor Rebell explains:

Standards-based reform substantially enhanced the fledgling educational adequacy notions alluded to in Rodriguez and others of the early fiscal equity cases. "Adequate education" was no longer a vague notion which, almost in passing, could be assumed to describe any state education system. The concept now had substantive content, and its underlying message was that most state education systems and certainly many school districts that served predominantly poor and minority students could probably be assumed to be below, and not above, the level of substantive expectations. Rebell,  EDUCATION Adequacy Litigation And The Quest for Equal Educational Opportunity, Studies in Judicial Remedies and Public Engagement (1999)

In our next post, we'll explore the role of the three branches further.
Past Series on Education and Constitutional law:

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's School Finance System is Unconstitutional, Part I
Minnesota's School Finance System is Unconstitutional, Part II
Minnesota's School Finance System is Unconstitutional, Part III
Minnesota's School Finance System is Unconstitutional, Part IV

What Does Adequate Education Mean and Who Decides

Jvonkorff on Education has been discussing Minnesota's statutory definition of educational adequacy, because adequacy plays an important role in two education litigations that are now in the appellate courts (Cruz-Guzman and Forslund).  The phrase "adequate education" is used at times imprecisely and loosely--As in, "American public schools don't adequately educate all students;" or "urban public schools aren't providing students with an adequate education;" or "my high school didn't give me an adequate education."    But in court cases, and especially constitutional litigations, words need to be used with more precision, and at times, even lawyers seem to use the word loosely.   The purpose of this post is to begin to explore the constitutional dimensions of the word "adequate" as it has evolved over the last several decades.  So in this and subsequent posts, I'm going to discuss what we mean when we say that the Minnesota constitution guarantees an adequate education system.  

Adequacy, in the legal  context has two substantive components.

• The first is adequate educational quality:  is the output of the public education system of high quality.  
• The second the creation of an adequate system, one that has the tools and resources sufficient to deliver adequate educational quality.  Most commonly, adequacy suits are trying to force the state to provide adequate funding to produce an adequate education, but as we shall see in subsequent posts, Cruz-Guzman and Forslund make no claim regarding the funding of public education.

Scholars, and ultimately courts, also debate the respective roles of the legislature, the executive branch (Governor and Education Department), local districts, and the Courts in defining the governing principles of adequate educational quality and in deciding whether the system has the tools and resources sufficient to deliver educational quality. The best reasoned constitutional decisions recognize that there is a shared responsibility among the branches of government to define educational quality and to create an adequate educational system.    

The concept of what is an adequate educational output has evolved since the Minnesota Constitution and other state constitutions first commanded the legislature to create a thorough, efficient, general and uniform system of public education.   In the1800's, the majority of our population engaged in agriculture, and that agriculture was of an entirely different character than today's modern agriculture. 

By the 1950's and 1960's the common understanding of the necessary education for students to thrive involved higher level reading, more mathematics and science.  Yet, still, a significant number of high school graduates could find productive decent paying work that would today be regarded as semi-skilled:  work on factories, mines, industry, transportation, and the construction jobs. 

By the 1980's, however, a national consensus emerged that the public education system was inadequately preparing many students.  The Minnesota legislature has published an excellent history of the resulting evolution of Minnesota academic adequacy standards in the Minnesota Issues series.  (Click on the link to read the entire document.  It begins:

Historically, Minnesota high schools awarded diplomas based on Carnegie units ("seat time requirements") or course credits completed by students. Critics maintained that this system provided no statewide standards on subject content and no statewide assessment of what students had learned.

This central fact is greatly underappreciated as we think about the second aspect of a Minnesota adequate education --- what tools and resources must be supplied to school districts in order to deliver an adequate education.  The framework of our modern public education system was devised to produce Carnegie units, to deliver a fixed number of hours of instruction.  When we changed to a more demanding system, very little attention was paid to the changes necessary to achieve the new state requirements, both in terms of funding and in terms of the ability to manage teachers, principals and other staff.

 In a seat-based system,  as it existed at the time that the Supreme Court decided Skeen v State (1993) 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 delivered 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,  as it existed at the beginning of the 1990's, 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 without running afoul of state adequacy standards.  

That is why the plaintiff school districts in the Skeen case told the Minnesota Supreme Court that their districts were meeting state standards and that they were capable under the established system to provide all students with an adequate education..  

However, in the 1990's, Minnesota became a belated participant in a national movement to set education standards not on "seat time" but instead on what students actually learned.   This transition from seat time standards to learning based standards was motivated by several concerns.  First, there was a growing nationwide consensus that American students in general were not learning what they needed to learn to compete in the national and international economies.  Second, evidence suggested that students who came to school behind stayed behind, and actually fell further behind, notwithstanding their intellectual capacity to learn.   The seat time standard provided no incentive, let alone a state mandate, to catch those students up and educate them to their full potential.   Everybody was receiving the same number of hours of  teaching, and the result was to maintain or exacerbate the gaps in achievement.  

 These concerns, partly prodded by the national No Child Left Behind legislation, led to a series of legislative education standards in which the state transitioned to a proficiency based system.    We've described some of these laws in previous posts:  (Worlds Best Workforce; Special Education; Academic Standards Law; Curriculum Content Stadards.)   Now, that leads us to a number of questions, some of which are resolved differently in different states,  but which are critical to implementation and enforcement of the constitutional protections found in our Constitution:

• Assuming that the Constitutional education clause is enforceable, what is the relationship between the state's education standards and the right to an adequate education?  When the state legislature shifted from a seat-time based system to a proficiency based system, did that elevate the standards by which to measure the constitutional adequate education?  Or, could a legislature hostile to the concept of public education eviscerate the statutory requirements, and decide that local school districts, say, need only educate students to an 8th grade level of reading, math, and science.?   
• Once the state has established new adequacy standards, may citizens harmed by failure to deliver an education sufficient to meet the standards use the constitution to seek judicial intervention.   Does it make a difference if the system established by the legislature delivers the state required proficiency to some students and not others? 
• Suppose the legislature fails to provide school districts with the tools necessary to deliver an adequate education.  Is there a constitutional remedy, and if so, does it make a difference whether the standards are set by the judiciary in a constitutional case, or the legislature? 
• May plaintiffs (like Cruz-Guzman and Forslund) identify a particular narrow feature of the education system that is inadequate, or do they only have a claim if the legislature's implementation is sweepingly inadequate?   

We'll address these and other points in coming posts.  

Past Series on Education and Constitutional law:

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's School Finance System is Unconstitutional, Part I
Minnesota's School Finance System is Unconstitutional, Part II
Minnesota's School Finance System is Unconstitutional, Part III
Minnesota's School Finance System is Unconstitutional, Part IV

Commissioner Cassellius Throws Sand in the Face of the Courts to Win the Cruz-Guzman Litigation

We've been posting on the topic of what is an adequate education in Minnesota because that question has, surprisingly, become a  central feature of two Minnesota litigations winding their way through our state court system.   In the Cruz-Guzman case, the plaintiffs alleged (as their brief in the Court of Appeals states:

  [The Cruz-Guzman] Complaint alleges five causes of action: [The first two are] (1) [Their school districts] deprived Plaintiffs of their constitutional right by failing to provide an adequate education to students of the Minneapolis and Saint Paul public schools, and Defendants are therefore liable regardless of whether they caused or contributed to this deprivation; (2) Appellants violated Plaintiffs right to an adequate education because Defendants in fact caused Plaintiffs to receive an education in Minneapolis and Saint Paul public schools that is inadequate because it is segregated and inadequate by any other objective standard....

    The Cruz-Guzman Complaint had thus two major components:  (1) the allegation that a significant number of students in the Minneapolis and St. Paul schools do not receive an adequate education, and (2) that a contributing factor  causing their education to be inadequate is that the public school systems are segregated.  

Two of the major defendants in this litigation are the Governor and Commissioner of Education and this post suggests that they adopted an ill considered strategy, one that convinced the Court of Appeals wrongly to undermine the constitutional protection of education in our constitution.  

Let me start by pointing out that this the allegation that segregated education causes students to receive a poor education is highly controversial.   There are factual arguments on both sides.  Probably, had the Court of Appeals allowed them to proceed to trial, there is a significant probability that the courts would have found that judicially forcing integration of the metro area schools would not have solve the very real problem, that a significant portion of our students are failing to receive an adequate education.  However, it is important to understand that generally, when plaintiffs allege something in their complaint that is factually controversial, our justice system gives them a right to a full dress trial, provided that they can provide some competent evidence supporting their claim.  

    Instead of winning the case at trial on the merits, the Governor and Commissioner, (and their attorney, the Attorney General), decided that they would choose a strategy that might convince the courts to dismiss the case without going through a lengthy and costly trial, and really nobody can blame defendants or their lawyers for wanting to do that.   But unfortunately  they chose to defend this litigation with a rather remarkable, and for Minnesota, quite unfortunate,  approach.     They decided to throw sand in the face of the Court system by wrongly claiming that the Cruz-Guzman plaintiffs were asking the Courts to invade a legislative function and decide what is an adequate education in Minnesota.    

It's going to take me a few posts to explain why this strategy represented a clever, but unfortunate, legal evasion, which surprisingly resulted in a victory for the State in the Court of Appeals.  But that victory now threatens grave injury to one of the most important civil rights in the Minnesota Constitution, the right to a general, uniform, thorough and efficient system of public education.  I'll explain why in the coming posts.

Spoiler Alert--How Did the State Throw Sand in the face of the Court System

Let me provide a simplifying spoiler summary of the argument that we will make in the coming posts.  

• In the time period 1989-1993, several groundbreaking "adequacy" cases were decided on State educational Clauses:  for example in Kentucky, the famous Rose case, and in Minnesota, the Skeen case.  
• In the 1989  Rose case, plaintiffs alleged that the Kentucky education system was grossly inadequate, in its funding, and in its educational results. The Kentucky Supreme Court found that: "To comply with constitutional requirement that General Assembly provide efficient system of common schools throughout state, system of common schools must be adequately funded to achieve its goals and substantially uniform throughout state, so that every child in state is provided with equal opportunity to have adequate education."  
•  In the Skeen case, a group of non metro school districts, serving primarily white students, told the Court that the students they served were actually already receiving an adequate education under Minnesota law, but then argued that the system of taxation and school financing violated the constitutional education clause by requiring non-urban districts to levy higher property taxes than urban districts to achieve their missions. The Supreme Court found that "the Education Clause not only contains language such as “shall” but in fact places a “duty” on the legislature to establish a “general and uniform system” of public schools. .....we hold that education is a fundamental right under the state constitution, not only because of its overall importance to the state but also because of the explicit language used to describe this constitutional mandate. While a fundamental right cannot be found “[a]bsent constitutional mandate,” the Education Clause is a mandate, not simply a grant of power.  Skeen v. State, 505 N.W.2d 299, 313 (Minn. 1993).  
• In 1993, when Skeen was decided, Minnesota had a minimal state adequacy requirement that even the least demanding and poorly delivered education program could satisfy.  During this time period, a number of state Supreme Courts in other states began to force their state legislatures to fund judicially-established adequacy requirements.   An important example is the series of New Jersey Abbott decisions in which  the New Jersey courts determined that the adequacy of education provided by a school district could not be judged solely by students’ performance on basic skills tests and that a “thorough and efficient” education included not only the ability to fulfill one’s role as a citizen, but to participate fully in society, in the life of one’s community, to appreciate music, art and literature.  This question, of whether the Courts should have any role in defining the constitutionally required adequate education, became an important topic for debate in the legal communities interested in education.  Conservative scholars began to argue that the definition of the state required adequate education ought to be entirely a matter for the legislature.   
• However, since 1993, the Minnesota legislature and the Department of Education radically increased the requirements for local school districts so that today, the definition of an adequate education is robust and  rigorous.   (That's been the subject of our past four posts:  to explain how statutes and administrative rules now leave little doubt on what a Minnesota adequate education is.) 

Now we are ready to explain how the Commissioner and her advocates threw sand in the face of the judiciary.    As it happens, they implied  (incorrectly) that the Cruz-Guzman plaintiffs were trying to bring an Abbott type suit-- that is, to invade the province of the legislature and seek a judicial definition of an adequate education.

That contention--especially to more conservative judges--raised the specter of a judicial takeover of the legislative function, and perhaps even indirect long term management of the entire education system.  The argument was a red herring, a form of legal trickery, but it took hold in the Court of Appeals.     In fact, the Cruz-Guzman plaintiffs were not bringing an Abbott suit at all:  they were making a much narrower argument.  They didn't need the Court to define an adequate education:  the legislature had already accomplished that objective through comprehensive legislation, as we have shown in prior posts.    The standards for a Minnesota adequate education are robust, rigorous and demanding--nothing at all like the minimal standards that existed when Skeen was decided.

Instead, Cruz-Guzman were arguing to the court that the system of education as structured in Minneapolis and St. Paul was failing to provide the adequate education that the legislature had already decided must be provided to all students.   We argue that the Commissioner and her co-defendants made an argument that as stewards of our public education system they should never have made:  in order to win a temporary victory, they proposed to undermine the very Constitutional protections found in our constitution.   I'll have a whole lot more to say about this in the coming posts.  

Past Posts on Education and the Constitution
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's School Finance System is Unconstitutional, Part I
Minnesota's School Finance System is Unconstitutional, Part II
Minnesota's School Finance System is Unconstitutional, Part III
Minnesota's School Finance System is Unconstitutional, Part IV