Does Minnesota's education system deny equal protection

The other day I spoke to a school employee who works with students who have educational challenges.   Some come to school speaking little English and some come from families who are not literate in any language.   Some come to school having experienced what educators have come to call trauma.  Some lack equal phonic  readiness and pre-numeracy skills.  Some need help in becoming socially and emotionally ready for school    The vast majority of these children have the intellectual potential to perform at a high level, but they need a whole lot of support and teaching directed to take them where they are to where they need to be.    

The school employee pointed out that students who meet the criteria for special education have a right to receive the support they need, as a matter of course.  These other students, he pointed out, have no such right, and, he said, the difference in what the schools can do, and what they must do, is really stark.    

That got me to thinking as to whether this difference is consistent with our constitutional requirement for equal protection of the law. Don't get me wrong, this post is not a critique of the right to special education.  Our special education laws were passed because in the 1970's dozens of federal and state courts began to hold that students who need extra help and specialized instruction are being denied equal protection.  The extra resources they receive, and the instructional accommodations they receive are not only deserved, but they are required under the constitution.   

When the first major federal special education law was passed, both the House and the Senate Reports attributed the impetus for special education laws to two federal-court judgments rendered in 1971 and 1972. The Senate Report states, passage of the Act “followed a series of landmark court cases establishing in law the right to  education for all handicapped children.” S.Rep., at 6, U.S.Code Cong. & Admin.News 1975, p. 1430.  (See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982). 

The federal special education laws, then, did not create the right to special education:  they were passed to enforce the constitutional right and to create a procedural framework that would assure that students disadvantaged by disability would receive a free appropriate education. 

The school employee wasn't complaining about the help that students with disabilities receive.  Instead, he was asking why it is fair that some students who need extra resources receive it as a matter of right, whereas other students, who also have disadvantages that prevent them from receiving an education that meets state standards, do not get those extra resources. 

We cannot really deny that a large portion of the achievement gap results from these educational disadvantages.  The Thomas Fordham Foundation's report "Fund the Child" makes this point eloquently enough:

Although we may wish that achieving this goal were easy for every student, numerous studies have shown that some students require more resources than others: Some start behind because their lives prior to school did not provide them with the same educational opportunities as other children. Some home circumstances present problems related to health, nutrition, parental support, and other conditions, all of which materially impact children’s performances. Some have disabilities that lead them to require additional education services and attention. Some are from homes where English is not the primary language. Some are recent immigrants who had little formal education in their home countries.

In a student note in the Boston College Law Review, an author argues that the special education law violates equal protection because it gives special treatment to some students. 40 BC L Rev 633 (1999).  But the author draws the wrong conclusion.  As I have said, the right to special education derives from the right to equal protection.   The real violation of equal protection is the denial of appropriate education to other students with educational disadvantages. The school employee has put us on to an important topic; although not a lawyer, he recognizes that Minnesota is unthinkingly denying disadvantaged students equal protection.   Their rights to realize their full potential through education is morally and legally indistinguishable from the rights of students with disabilities.   To follow up that assertion, we will need at least one more post. 

Debunking resistence to full funding of special education Part 3

I've been writing about the special education deficit, the huge $700 million per year difference between the amount of money school districts are mandated to spend on special education and the amount of the state and federal reimbursement provided to support that spending.   Special education funding is necessary to cover the excess costs required to meet mandated standards for students with disabilities.  In its description of special education funding, the Minnesota Department of Education  acknowledges the necessity of this extra funding, as well it should:

The state funds special education because it recognizes that special education services cost more than those provided to all children. Appropriations are based on the perception of the “excess costs” of special education. The term “excess cost” stems from the legislative assumption that general education revenue is used to cover basic costs for each child (including those with disabilities) and the legislative desire to share the burden of these extra costs with local districts. Introduction to Special Education Funding Section 1, MDE.  (italics supplied) 

To say that these costs arise from an assumption and perception is the understatement of the century.   Together, Minneapolis and St. Paul serve just over 78,000 students (APU) in 2016.  By the MDE's own accounting, it costs them $227 million to educate their special education students above the regular education revenue provided to educate them.  The two districts receive only $113 million in special education revenue (state and federal combined) towards that $227 excess cost.   By MDE's own accounting, it costs Minneapolis $51 million more to provide special education for students with disabilities than the general fund formula and special education revenues together provide.   That $51 million has to be pulled out of funds allocated to the District for other purposes.  

School districts have lived with these large and growing deficits for decades, and increasingly the deficits are preventing them from meeting their constitutional responsibilities to other students.  So, why haven't these districts all fought like tigers in the legislature or even in the courts to get that deficit covered? Why don't  school district their representatives, and special education advocates fight harder to fix this problem?

One reason that the MDE special education bureaucracy may not fight harder to eliminate the special education deficit, is that the districts' obligation to pay for mandated special education services is not dependent on the amount of funding provided to them.  If special education funding is inadequate, that causes corresponding cuts in services to other students, but not to special education students.  Moreover, special education is the only significant mandate that is directly enforceable by students and families.  When the special education division of MDE says that there is a "perception" that special education costs more, it is possibly reflecting a benign indifference to the funding of their own programs arising from the fact that their programs fully function without regard to the level of state and federal funding provided to school districts.   

Perhaps this is unfair, but the highway people at MnDot are fighting for more highway funds in the MnDot budget, because their programs depend on it, and the fishery people in MnDNR are fighting for more money for fish and wildlife appropriations in the DNR budget, for the same reason.  In contrast, Special Education services don't depend upon special education appropriations:  they depend instead on what the legislature (and MDE) decides are mandated services.  

Pitting General Fund Increases Against Special Education

A second reason is that some educators are reluctant to fight for more special education funding is that they may perceive that more dollars allocated to special education will reduce the dollars allocated to the basic formula.  And, virtually all school districts, and their advocates certainly believe that the general fund allocation is also constitutionally inadequate.   

According to the Minnesota Association of School Business Officers in their 2018 legislative platform:

The basic funding formula amount is the largest source of revenue for all school districts, accounting for approximately 56% of a school district’s total operating revenue. While progress has been made, the formula allowance would have to be higher than the current level by $596 (9.4%) per ADM (Average Daily Membership) to have kept pace with inflation since 2003.

The chart above compares the growth in in the general education formula as compared to inflation, as reported by MASBO. 

The general formula is inadequate to cover the costs of regular education. It cannot cover the cost of providing what it is supposed to pay for, and in difficult state funding times, there is pressure to restore the buying power of the formula, or add to it.  And, the inadequate general education formula increasingly gets diminished by the special education deficit too.   This creates a natural tension between the districts with large special education deficits that are often twice as high per student as the districts that have much lower special education costs per students. 

This tension may be exploited by persons seeking to hold back the pressure to increase funding for public education.   In 2007, as the statewide special education deficit rose dramatically under the Pawlenty administration, many districts and their advocates combined to push the Governor and the legislature to do something about it.  Governor Pawlenty responded by threatening to veto inflationary increases in the general fund formula if the legislature insisted on reducing the special education deficit. A deadlock between the branches emerged in which Governor Pawlenty forced the legislative branch to choose between making modest progress on special education or making modest progress on the formula.   This pitting of the one shortfall against the other shortfall made many public education advocates reluctant to press for special education funding reform. 

This is a complex topic, and so there is more to come.  

Debunking the Federal Share Alibi, Part 1
Debunking the Federal Share Alibi, Part 2

Debunking the Federal Share Alibi Part 2

In our last post, we discussed some of the alibis that are used to justify the legislature's failure to fully fund the state mandated costs of special education.   In that post, we debunked the claim that the issue needs more study (it does not), and that it would be somehow easier to solve the problem if we didn't solve it until 10 years from now.  

At the end of that post, we promised to examine another alibi, which I call the "federal share alibi."  The idea behind this alibi is that Congress has an obligation to fund part of the cost of special education, because supposedly decades ago, Congress "promised" to pay more, and has not kept that promise.   It follows, the alibi goes, that the state shouldn't have to pay for the amount that the federal government supposedly promised to pay, the so called "federal share."  The alibi asserts that this breach of promise suspends somehow the state constitution, and justifies the shifting of the federal share as a kind of tax on students, diminishing their education to make up for the federal government's failure. 

The "federal share" alibi is based on a series of erroneous assumptions.   The first erroneous claim is that the state of Minnesota has no obligation to provide a free education to students with disabilities, and that the obligation arises only because the federal government passed IDEA legislation.   So, we'll here spend some time debunking that incorrect claim.   The second erroneous claim is that when Congress passed the IDEA legislation it made a legally binding promise to pay a fixed percentage of every state's special education expenses, and therefore the feds are breaking the law when they don't pay their "share" as promised.  We'll also spend some time showing that this claim is patently false. The Federal Government and  Congress have never appropriated the missing federal share, and certainly never promised to do so.    

The third deeply flawed assumption seems to be that, the Minnesota Constitution contains an unwritten exemption for unpaid federal shares, so that the legislature can stick local school districts with the federal share, and make them take the federal share out of money needed for the education of all students.    So, in the third of these three posts we'll use remind that the Supreme Court has twice held that the state has an obligation to provide funds to pay for an education that meets all state standards.
  (1) Special Education is A State Obligation 

Under our federal system,  education of our children is a State Responsibility.  Minnesota's own constitution places the obligation to provide and fund education squarely on the state.  There is no federal constitutional or federal statutory right to federal funding for education.  The federal special education mandate arises from the fact that federal law says that if a state wants to accept federal financial assistance, the state must agree to comply with IDEA.  One author explains:

It is important to understand that states are not required to participate in the IDEA. In the case of Smith v. Robinson,  the Supreme Court explained that the IDEA is “a comprehensive scheme set up by Congress to aid the states in complying with

their Constitutional obligations to provide public education for children with disabilities,” not a legislatively created mandate to serve children.

The choice offered to states under IDEA is more complicated than it appears on the surface.   As we shall see, the 14th amendment guarantees students with disability a right to free appropriate education, whether IDEA existed or not.  IDEA says, you may meet your obligation with some federal help, but if you want the help that we, the feds, decide to give you, then you must do it to IDEA standards.

In return for this deal, the state receives whatever sum of money that the Congress decides to appropriate.   The fact that the federal government doesn’t appropriate the amount authorized does not excuse the state from meeting its statutory obligation to provide education, nor does it excuse compliance from its own constitutional obligation. 

It is deeply false to claim that there is no right to special education apart from the Federal IDEA legislation.   The Right to Special Education Arises from the State’s Obligation to provide Equal Protection of the Law to Children with Disabilities and from Minnesota statute.  One scholar explains that the suggestion that the obligation to serve students with disabilities is a federal obligation is an invention, a fiction.

Although it is widely assumed that a federal statute (Public Law 94–142, now named the Individuals with Disabilities Education Act, or IDEA), created educational rights for children with disabilities, in fact some of these rights were first established in state statutes (although not [fully] implemented) and also grew out of federal court cases based on the U.S. Constitution.

 Minnesota’s recognition of the rights of students with special needs dates largely from 1955, described by one author as “a turning point for special education in Minnesota.”  In that year, the legislature created the Interim Commission on Handicapped Children, and charged the group with making a comprehensive and detailed investigation of the problems of handicapped children.  The Commission was chaired by State Senator Elmer L. Andersen, who later became Governor. 

The Commission’s report recommended “the establishment of a division of special education in the department of education to assist school districts in the development of special education programs, to establish standards for special education programs, to supervise the system of special education for exceptional children in local school districts, and to prescribe curriculum and courses of study for state operated residential schools. A series of Laws beginning with Ex l959 chapter 71 art 1 s 17; and 1961 chapter 559 s 2; 1961 c 690 s, led ultimately to section 120.17 of Minnesota Statutes (1969) providing for the education of what were called in those days handicapped children.    These laws predate IDEA, and if their were no IDEA, the obligation to meet students special education needs would still exist.

There is this misunderstanding among some in the education community that if the federal constitution protects state citizens right to equal protection under law, that somehow that suddenly means that the federal government must pay all or a portion of the cost.  The 14th amendment insists on equal protection, but the cost of assuring equal protection belongs to the state charged with that obligation. Several federal laws are designed to protect the constitutional equal protection right of students with to special education:  those laws got their impetus in part from a string of cases beginning with Pennsylvania Pennsylvania Association for Retarded Children (PARC) v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D. PA 1971) and Mills v. Board of Education 348 F. Supp. 866 (1972).  By 1973, more than 30 federal court decisions had upheld the principles of PARC and Mills

To Repeat, Education is a State Responsibility.    IDEA was passed to assure that state's would not evade their responsibility to provide an education to students with disabilities.  If the federal government sues a state because black citizens aren't allowed to vote, that doesn't mean that the federal government has to pay for the cost of administering a part of the voting system.  Educating students with disabilities is a responsibility of the state legislature under the Minnesota Constitutional education clause and the Minnesota Constitutional Equal Protection provisions.  In addition, educating students with disabilities is protected by the federal 14th Amendment to the Constitution which requires equal protection of the laws.  When legislators say that they don't have to do their job because Congress didn't fund the "federal share" they are claiming that you only have to obey the Minnesota and federal constitution if the federal government pays you to do it.

There is no constitutional right to federal funding for education.  To reiterate, the federal special education mandate arises from the fact that federal law says that if a state wants to accept federal financial assistance, the state must agree to comply with IDEA.   In return for this deal, the state receives whatever sum of money that the Congress decides to appropriate.   The fact that the federal government doesn’t appropriate the amount authorized does not excuse the state from meeting its statutory obligation to provide education, nor does it excuse compliance from its own constitutional obligation. Minneapolis is obligated to provide special education not by the federal government, but by the state of Minnesota, which passed a law setting standards for the delivery of special education and enforces those standards as a matter of state law.

(2) Congress Has Never Guaranteed the "federal Share"     

To understand why the claim that there is a federal share is erroneous, we need to take a detour into basic civics.  The primary avenue for exercising Congress’s power of the purse is the authorization and appropriation of federal spending to carry out government activities.

The formal process consists of two sequential steps: (1) enactment of an authorization measure that may create or continue an agency, program, or activity as well as authorize the subsequent enactment of appropriations; and (2) enactment of appropriations to provide funds for the authorized agency, program, or activity.   Overview of the Authorization-Appropriations Process Bill Heniff Jr. Analyst on Congress and the Legislative Process November 26, 2012

When a congressional committee with authorization jurisdiction launches a new program, it does that in authorization legislation.   The legislation may authorize a department to administer the program; it sets the ground-rules for what the program may do. 
The legislation may also propose targets or guidelines for proposed future funding, but that legislation is not a promise, and it is certainly not an appropriation.   (There are exceptions to this general rule, and these exceptions are called entitlements, but federal assistance for state special education is not an entitlement). 

The original IDEA law "authorized" funding in accordance with a formula, a key variable of which is the average per pupil expenditure (APPE) for nondisabled students. The act authorized Congress to appropriate a sum equal to 5% of APPE in 1977, 10% in 1978, 20% in 1979, and 40% by 1980. Though the act authorized funding according to this formula, the actual dollars must come through the appropriations process.  This is what legislators call the federal share.   The most typical actual appropriation has amounted to 15%.  

Legislators and some governors have milked this old authorization legislation to the max.   It is a form of urban legend, really.  When we face an unpleasant difficulty, we all look for some rationalization that might help us get out of our responsibility.   And that is what this "federal share" alibi is.  It is, however, dismaying that even some educators and their representatives have begun to buy into this erroneous rationalization.  In the next post, we'll discuss this further. 

Debunking the Federal Share Part 1