Implementing State Standards for Students with Dyslexia

In the last posts, we have described Minnesota's failure to provide sufficient funding to meet state standards for categories of students that statistically require more resources initially to meet all state standards:  English language learners, lower incomes students, students with disabilities, and students of color.   The purpose of this post is to provide a description of the Minnesota legal standards requiring school districts to meet the needs of students with dyslexia. 

About 15% of all students have some degree of dyslexia that requires them to decode written language in a different way.   The Yale Center for Dyslexia and Creativity says:

Dyslexia is an unexpected difficulty in learning to read. Dyslexia takes away an individual’s ability to read quickly and automatically, and to retrieve spoken words easily, but it does not dampen one’s creativity and ingenuity.

In the past year or so, Minnesota Public Radio and  American Public Media have been paying attention to the failure of the American education system to address the learning styles of these students, and unfortunately Minnesota has for many years neglected the needs of these students.    Minnesota Decoding Dyslexia maintains a library of recent podcasts on the topic that document the needs and our failure to meet those needs. As Minnesota struggles to improve the number of students who can read proficiently,  the Governor, the Commissioner, school board members across the state and unfortunately too many school districts have lagged in recognizing dyslexia, and despite some progress in some districts, Minnesota hasn't been able to implement the necessary system-wide reforms to identify students with dyslexia, and to provide them with early and effective instruction. Through the efforts of advocates, Minnesota has provided additional tools to parents and advocates to push for reform.  I they are going to work, it will require an understanding of the tools available to advocates and parents.

There are many barriers.  Despite clear legislative standards to the contrary, Minnesota has a history of local control that provides a cultural excuse for resistance to necessary change.   For a variety of reasons, in some quarters, the field of special education has been a passive or even active opponent to dyslexia education, even though dyslexia is the largest specific learning disability.  Many districts in Minnesota have resisted implementing the phonics and other decoding instruction that these students need and many teachers simply don't like teaching them, or don't know how.   Parents of students who are strong readers may advocate for what they perceive is a more creative reading program based on "whole language" or its compromise cousin "balanced literacy."  The impetus for change has not been led by educators, unfortunately:  Over the past five years, advocacy by parents has been largely responsible for legislative changes designed to assure that school districts identify students with dyslexia and provide them with appropriate instruction.

Minnesota law now contains several basic standards which together provide a framework that requires schools to provide adequate reading instruction to students with dyslexia.  The first is the overarching basic literacy framework that seek to have every child reading at grade level and demands scientifically based reading instruction.  The second is a mandatory identification of students with dyslexia followed by a mandated service requirement that calls for instruction sufficient to accelerate students who are behind grade level and a family engagement requirement. The third is a reporting requirement that seeks to assure that the Department of Education can monitor compliance. 

The Basic Literacy Framework:  Since 2001, the Minnesota literacy laws have utilized a framework that seeks to assure that all students can read at or above grade level by third grade.  (See Laws Minnesota 2001, Chapter 13 section 12.)    Section120B.12 subdivision 1, embodies the legislature’s commitment to literacy through research-based instruction:

"The legislature seeks to have every child reading at or above grade level no later than the end of grade 3, including English learners, and that teachers provide comprehensive, scientifically based reading instruction consistent with section 122A.06, subdivision 4." (emphasis added).

Section 122A.06 subdivision 4(a) provides further detail on what scientifically based reading instruction . That section, labelled “comprehensive, scientifically based reading instruction” says that comprehensive, scientifically based reading instruction:

"…. includes a program or collection of instructional practices that is based on valid, replicable evidence showing that when these programs or practices are used, students can be expected to achieve, at a minimum, satisfactory reading progress. The program or collection of practices must include, at a minimum, effective, balanced instruction in all five areas of reading: phonemic awareness, phonics, fluency, vocabulary development, and reading comprehension."

However, if evidence-based approaches were applied, as called for by the statute, Minnesota school districts would have been meeting the needs of students with dyslexia long ago.   Indeed, the remainder of section 122A.06 reinforces the very concepts necessary to meet the needs of students with dyslexia by requiring the evidence based instructional approaches.   If Minnesota's department of education, its schools of education, and its school districts had been true to reading science, Minnesota would not have needed dyslexia specific mandates, because the science has long since recognized that students with dyslexia need a different approach to reading that Minnesota schools have adopted in contravention of that science.  The failure of Minnesota to adjust to modern reading science in universities, in curriculum, in professional development and in the classroom betrays a deep defect in the way our system responds to evidence of what is not working. 

To recap:  basic legislative policy called for providing struggling readers with comprehensive, scientifically based reading instruction, using instructional practices that are “based on valid, replicable evidence showing that when these programs or practices are used, students can be expected to achieve, at a minimum, satisfactory reading progress.”  This was actually law and policy before passage of the dyslexia legislation.  What shielded districts from utilizing research-based practices to address the needs of students with dyslexia was dyslexia denial and active resistance to scientifically based reading instruction.  A national effort to attack this problem ultimately crept into Minnesota, but has met considerable resistance.   As the Heckinger report explains:

"But a theme among all dyslexia-related state legislation is that it typically comes with no additional money. It’s up to school districts to figure out how to pay for the training and other measures required by these laws." 

There was, and to some extent still is, a culture in education that refuses to respond to legislative directives to make necessary change.  This resistance is a manifestation of a failure of the legislature adequately to fund the cost of making those changes, but also the lack of a culture in the Department of Education to demand that local districts actually obey the law.

Dyslexia specific Legislation.  In the face of resistance to reform, advocates for these students began to tell the legislature that merely demanding adherence to science was not enough  There was powerful resistance to implementing that science, and ultimately the legislature has been convinced to adopt legislation that more specifically demands attention to dyslexia.  Minnesota law now contains two mandates that demand screening for dyslexia.  Section 120B.12 subdiv 2, titled Mandatory Identification now states:

(a) Each school district must identify before the end of kindergarten, grade 1, and grade 2 all students who are not reading at grade level. Students identified as not reading at grade level by the end of kindergarten, grade 1, and grade 2 must be screened, in a locally determined manner, for characteristics of dyslexia . Minn. Stat. Ann. § 120B.12.

(b) Students in grade 3 or higher who demonstrate a reading difficulty to a classroom teacher must be screened, in a locally determined manner, for characteristics of dyslexia, unless a different reason for the reading difficulty has been identified..

Notice that the screening does not require a medical diagnosis as some districts have argued.  The purposes of screening is to determine whether the student has the characteristics of dyslexia. 

In hopes of affording the Department of Education the tools to monitor compliance, section 120B.12 subdiv 2(d)  requires each district to provide an annual report to the commissioner that provides

a summary of the district's efforts to screen and identify students who demonstrate characteristics of dyslexia using screening tools such as those recommended by the department's dyslexia specialist. With respect to students screened or identified under paragraph (a), the report must include: (1) a summary of the district's efforts to screen for dyslexia; (2) the number of students screened for that reporting year; and (3) the number of students demonstrating characteristics of dyslexia for that year.

A skeptic might point out that Minnesota's Department of Education lacks the resources, the will, or the the power to scrutinize these reports to assure that local districts are meeting their responsibilities. In order to make these requirements meaningful and broadly implemented, parents and their advocates will need to begin to enforce the "must serve" mandates found in recent dyslexia legislation and to review the reporting for their district, to use it as an advocacy tool.

Must Serve Mandate:   The identification mandate ties directly to a must serve mandate and this is extremely important. The district must implement an identification system, and it must report the results of that system annually.   If a student is identified, the student must be served appropriately.  Section 120B.12 subdiv 2(e) states

(e) A student identified under this subdivision must be provided with alternate instruction under section 125A.56, subdivision 1.

Research tells us that about 15% of our students have dyslexia. It stands to reason that a significantly greater percentage of students in the two mandatory identification groups (a), (b) and (d) will have dyslexia.  If a district is complying with the law, it will have a universe of identified students, and a significant percentage of those students will have dyslexia.  Their reports should begin to show large numbers of identified students.  If not, the Department should take corrective action, and parents should ask for evidence of that action. 

This legislative “shall identify” mandate connects the policy requiring research-based instruction in subdivision 3 of section 120B.12, and requires that the identified students receive “reading intervention to accelerate student growth and reach the goal of reading at or above grade level by the end of the current grade and school year.”  This law doesn’t provide wiggle room.  It demands that the board of education must assure that the two categories of identified students listed above must receive reading interventions that accelerate growth and are designed to reach the goal of reading at or above grade level by the end of the school year. The statute reads:

Reading intervention to accelerate growth.   For each student identified under subdivision 2, [that is students who are below grade level or students who demonstrate a reading difficulty] the district shall provide reading intervention to accelerate student growth and reach the goal of reading at or above grade level by the end of the current grade and school year.

For students with dyslexia, a district cannot meet its obligation to provide research-based interventions if it is failing to utilize interventions that attack the specific learning disability of students with dyslexia.  The kind and quality of interventions are specified by section 122A.06.  A district has the obligation to provide:

"Comprehensive, scientifically based reading instruction" [which] includes a program or collection of instructional practices that is based on valid, replicable evidence showing that when these programs or practices are used, students can be expected to achieve, at a minimum, satisfactory reading progress.  Minn. Stat. Ann. § 122A.06 subdiv 4. 

The statute further mandates ongoing continuous support for these students, support which must acknowledge the existence of their dyslexia, or it is not meeting their needs.  Section 120B.12 subdivision 3 requires continuous support:

If a student does not read at or above grade level by the end of grade 3, the district must continue to provide reading intervention until the student reads at grade level. District intervention methods shall encourage family engagement and, where possible, collaboration with appropriate school and community programs.

Family Engagement. Parents cannot advocate for their children if they do not know that their students have dyslexia.  Unfortunately, across Minnesota, schools have not been providing the information that parents need to exercise their rights. It is more common for parents to hear that their struggling reader is doing fine or that we need to wait until 5th grade or later, until we can be sure.   This practice is now against the law. Section 120B.12 subdiv 2a (parent notification and involvement.).  The statute now contains a mandate, to involve families and engage them in their child’s reading progress.  Parents can't advocate for their children, unless this notification requirement specifically provides dyslexia information where appropriate. 

 

 

Amazed by the Resistance-- Why does the State fight to Ignore the Cost of Providing an Adequate Education?

   Our last post began a discussion of the court of appeals case brought by St. Cloud Educational Rights Advocacy Council (SCERAC) to require the state to comply with the Supreme Court's Skeen decision requiring the state legislature to fully fund education.   Skeen interpreted the Minnesota constitution's education clause to require that the state must provide enough funding to afford each student with an education that meets all state standards.   Minnesota generally meets that obligation for advantaged students, but it fails to provide enough funding to provide an education that meets all state standards to less advantaged students: lower income students, English language learners, students with disabilities, students of color and the fifteen percent of all students with dyslexia.   In fact, shamefully, the state defends the current system by asserting that the Skeen funding adequacy decision protects only advantaged students, but not what the state calls the "extra cost" of providing an education that meets state standards to lower income students, English language learners, students with disabilities," and by implication students of color. 
   
      We posted a link on this topic on the Contract for Student Achievement group site-- a group site that attracts persons interested in educational reform.   Contract for Student Achievement's moderator, Chris Stewart, responded that he is "amazed by the resistance" to the idea that Minnesota should determine and make transparent that cost, and well he should be.  The state's position seems right out of Kafka.  How could anyone, liberal or conservative, possibly argue that a system is thorough and efficient when it demands that the components of that system must provide a quality of service at less than its cost.  But that is what the state is trying to do, and it audaciously contends that it must provide the full cost of providing an education that meets all state standards only to advantaged students, who by definition are least likely to need more funding, but that the state need not provide the "extra cost" of providing an education to the very students that the constitutional education clause was written to protect. 

    Chris Stewart was absolutely right to be amazed and so should we be all.   To be clear, Jvonkorff on Education is not asserting providing the full cost of meeting state standards is a panacea.   On the contrary,  no system is guaranteed to work simply because it has enough money to produce a quality product.   In its Court of Appeals case, the plaintiff group, SCERAC, asserts that the constitution also requires that the state and its school districts actually use adequate funding when provided to deliver an education that meets state standards.  And that is going to require some delivery reforms as well.  But failure to provide enough funding dooms the system to failure, and actually affords the delivery system a ready excuse for failing to implement necessary reforms.

    Under the State's current system -- adequate funding for  advantaged students only -- school districts with a very high percentages of students who are educationally less advantaged are necessarily  accumulate huge budgetary operating deficits, as compared to what they need to meet state standards.   But Minnesota marches on, asserting that it is bewildered by the opportunity gap in education, but by golly, its perfectly OK to provide the funding necessary to deliver an education that meets state standards only to advantaged students.   

    In the Court of Appeals, SCERAC argues that in order to come into compliance with the Skeen mandate, the legislature must start by knowing the cost of providing an education that meets all state standards to different categories of students.   For 25 years, now, three governors, the legislature and the Minnesota Department of Education have intentionally avoided determining the cost of providing an education that meets state standards.    Yet legislators from both sides of the aisles, and many community leaders otherwise dedicated to closing the opportunity gap, seem to cringe at the thought of determining what it should actually cost to provide students with the education that the state legislature has decreed that they must have.   What in the world are they thinking?  We should actually have to pay the full cost of closing the opportunity gap?

    Doesn't it stand to reason that the Governor, the legislature, the Minnesota Department of Education, school boards and the public at large all should know how much it actually costs to provide each Minnesota student with an education that meets all state standards. Why would they attempt to run a system of public education without knowing the true cost of delivering the education that state law requires?   Why would any public servant seeking to run an efficient, constitutionally compliant, thorough and efficient system of public education purposely avoid knowing what the actual cost of providing that education might be?   Shouldn't we too be "amazed by the resistance" to that simple idea that the legislators who fund our education system should know what it actually costs to produce the educational product that they require local districts to produce.    How indeed could anyone advocate that an education system could be "thorough and efficient" if it demands that the system produce an educational product without knowing whether the revenue provided is adequate?

    Does anyone think that it is possible to run an enterprise efficiently in complete ignorance of the cost of meeting its mission and objectives. Suppose General Motors, or Ford, or Toyota decided to produce cars to particular specifications: (such as horsepower, fuel efficiency, durability and reliability, and extra amenities) ignorant of the cost of production?  With a management ignorant of production costs, how long would those companies exist before achieving bankruptcy?    

    The consequence of attempting to run government enterprises while ignoring the cost of production are grave indeed. The analogy is not perfect, but the Soviet Union's command economy  ran on a national economic system that largely ignored cost:  GOSPLAN -- the central government state planning agency -- would assign production quotas to collective farms, factories, and other enterprises without considering the production costs; and, the result was economic chaos, as anyone who studied that system will tell us.  As we have said, the analogy is not perfect, but Minnesota runs public education in many ways like GOSPLAN ran the soviet economy -- as if the state can command production without even considering its cost.  As in the soviet system, our political leadership  -- the commissars in the legislature and education department  -- determine the quality and quantity of the product that school districts must produce by command, ignoring willfully the cost :  The state sets (1) proficiency standards for what students must learn at each grade level and in the key subject areas including math, science, reading and writing (2)  programmatic standards, that require particularized programs for students of all categories (students with disabilities, English language learners, students with dyslexia and lower income students), (3) content standards that impose what districts must deliver in various programs.  And all of these standards are commanded centrally with complete ignorance of the costs. Is it any surprise that Minnesota cannot make progress in closing its achievement gap?  

As stated above, according to the State's own explanation to the court in the SCERAC case, Minnesota is not required to pay the full cost of providing an education that meets all state standards for "students of poverty, English language learners, and students with disabilities."  Yet we all wring our hands and wonder what could possibly be the matter:  the students for whom we fail to provide adequate funds don't do very well, despite everything that we try! Yes, what possibly could be the matter?  

    In the last three years, to take a recent example, the state legislature responded to parents and students legitimate complaints that the state was ignoring the educational needs of students with dyslexia.   In several legislative sessions, the legislature piled on new, (and much needed), dyslexia mandates that are known to be quite expensive, yet did these new standards, applicable to 15% of all students, were implemented without adding a dime to revenues for that purpose.  Some school districts responded by basically ignoring the requirement altogether.  Many school districts responded by providing the absolute minimum services -- just enough to claim that they were doing at least something.   This same story, has repeated itself over and over again.   It costs more, way more, to provide an education that catches students up, when they are years behind entering third grade.   Certainly students who are behind need more learning time, and more differentiated instruction to catch them up.   But the state intentionally evades providing enough funding for these students: why does it surprise us, then that students keep falling behind, and the ones who statistically fall behind, are the students that the state claims in need not fully fund?

  Like the soviet system, Minnesota runs its "system" of education without considering the cost implications:  how many days and hours of learning does it take various students to meet the proficiency standard? how do those costs differ depending on the demographic characteristics of the students served? what are the requirements for specialized in-service training and supervision to assure that teachers have the curriculum and professional support that they need? 

Where do business interests in Minnesota stand on this problem?   Ironically, when it comes to understanding the need to correlate costs with revenues and production quotas, the very leadership who understand economics the best,  are the first to cast their understanding of economics aside and announce that public education should be subject to the same economic insanity that Stalin and Khrushchev's regimes imposed on the Soviet command economy.  Produce what we order you to produce, regardless of cost!

As stated in our last post, we pointed out that in 2004, Governor Pawlenty appointed a blue ribbon task force with a mission to assure that:

Minnesota’s education finance arrangements ensure resources are distributed “equitably” to students throughout the state and does Minnesota appropriately adjust state revenue allocations for legitimate cost differences between districts, including additional costs for “at-risk” students?

The task force recommended that the State must begin to allocate funds that provide:

an annual revenue amount sufficient to cover full dollar costs of ensuring Minnesota public school students have an opportunity to achieve state specified academic standards--This formula should take into account the added costs included with relevant characteristics of each student (e.g., disabilities, poverty, school readiness, English language learners, and student mobility).  

 As explained in the last post, upon reading the task force's recommendation, the Governor promptly sent the task force home.   

The legislature has repeatedly sidetracked bills that would require the state to determine the full cost of meeting state standards, even though the Supreme Court's Skeen decision demands that the state provide school districts with enough funds to provide each student with an education that meets state standards.   Governor Dayton commissioned his own school funding task force and prohibited the task force from recommending that the state should provide additional funds to meet state standards.  

If we Want Better Education
It is Critical that those Charged with Delivering it
Must know what it Costs to do so!

We'll discuss SCERAC's court of appeals case further in the next post. 

 

St Cloud Educational Rights Advocacy Coalition Fighting to Enforce Skeen Decision (1)

On September 27, 2020 we argued the appeal of St. Cloud Educational Rights Advocacy Coalition (SCERAC) to a panel of the Minnesota Court of Appeals.   SCERAC is a coalition composed of parents of students in the St. Cloud District and of educators, school board members and former school board members, and St. Cloud area children's advocates.   SCERAC is appealing an adverse decision from a local district court which found, among other things, that the State, the legislature, Governor, Commissioner, and Department of Education are immune from suit to enforce the Minnesota Constitutional requirement that the state must provide enough funding to districts to provide each student with an adequate education that meets all state standards.   SCERAC says the District Court decision is 180 degrees opposite from what the Supreme Court has already decided.

SCERAC's case is founded upon Minnesota’s two great education clause cases, Skeen and Cruz-Guzman.  Those two cases hold that there is a fundamental right under the Education and uniformity clauses to a general and uniform system of education which provides an adequate education to all students in Minnesota.”   They both hold that an adequate educational funding is

“an amount sufficient to generate an adequate level of education which meets all state standards.” 

In the next posts, we're going to provide background on why it is essential that Minnesota begins to comply with the Skeen decision.   We shall see also, that the state defendants have contended that this Skeen right, to sufficient funding does not apply to the so-called "extra cost" of providing an education that meets all state standards to "students of poverty, students with disabilities, and English language learners."

 In this post, we'll say a few words about Minnesota's persistent educational crisis-- its abject failure to meet the minimum funding standards set more than 25 years ago by the Minnesota Supreme Court.  Then we'll get more technical and explain the legal theories behind SCERAC's case and what SCERAC proposes that the State should do to meet its constitutional obligations, and why the State's position is wildly contrary to the Skeen decision itself and, well, plain common sense. But first, let's just remind ourselves of the persistence of Minnesota's alarming failure to meet the needs of students of color, lower income students, English language learners, and now students with dyslexia. 

There can be no doubt that despite eloquent statements of good intentions, Minnesota has utterly failed to make adequate strides forward in addressing the educational needs of students that Minnesota has traditionally left behind:  In his State of the Union Speech in 2003, Governor Pawlenty recognized:

“As good as our schools have been, we are leaving too many children behind. And the sad reality is, they tend to be poor, disabled or children of color.”

To follow on his State of the Union declaration, in 2004 the Governor appointed a blue-ribbon school finance task force to make sure that “Minnesota’s education finance arrangements ensure resources are distributed ‘equitably’ to students throughout the state and […] Minnesota appropriately adjust[s] state revenue allocations for legitimate cost differences.”   With the assistance of technical financial advice, the the Task Force warned

"That rising numbers of lower income students requires additional educational services and additional school support services, including school readiness, health, counseling and academic advising..." 

Minnesota must  reform its finance system, to account for the additional costs of educating the students with the greatest educational needs, it warned:

• “The Instructional Services Allocation (ISA) should be an annual revenue amount sufficient to cover full dollar costs of ensuring Minnesota public school students have an opportunity to achieve state specified academic standards. These standards are connected to a comprehensive instructional program offered by schools.

• This formula should take into account the added costs included with relevant characteristics of each student (e.g., disabilities, poverty, school readiness, English language learners, and student mobility). In addition, Minnesota’s new funding formula should compensate districts for cost factors beyond their control (e.g., student population sparsity, technology access, and higher costs of living).
  
  
• For large proportions of students to achieve at the Minnesota academic standards level, school funding will have to be directed to provide (1) earlier-in-the-life-of-a-student instruction primarily in the form of greater individualized instruction in the primary grades (kindergarten through 3rd grade) and (2) extended school day, school year, and school career exposure to systematic instruction.
  

Concerned perhaps with the political implications of this recommendation, the Governor disbanded the Task Force and since that time, no Governor, nor any legislature has taken meaningful steps to implement these recommendations.   A series of reports, too numerous to itemize have documented Minnesota's consequent failure to address the so-called equity gap in Minnesota's education system.  All sorts of initiatives have been tried, yet still, there has been no effort to correlate the cost of delivering an adequate education with the needs of students that Minnesota's system is failing. 

Under the Dayton Administration, the Minnesota Department of Education decried its own failure to address the equity gap in our education system:

Our population is aging. Seventy percent (70%) of jobs will require more than a high school diploma. We don’t have an adequate number of qualified candidates to fill many good-paying jobs. The fastest growing segment of our future workforce is students of color, and they currently have the state’s lowest graduation rate. Minnesota has one of the worst black-white achievement gaps in the country.”  

 

In 2018, former Minneapolis Superintendent urged that the Minneapolis system needed to "Go Big or Go Home" financially.   He wrote:

Tens of thousands of families have stopped wondering [about its poor results] and have left the district. That has led to a financial death spiral in which each year for the last seven years the district has spent more than it takes in. In that time, it has plowed through its “reserves” (savings to be used in emergencies or for one-time investments) at an astonishing rate to pay for ongoing costs until they have virtually run out.

In 2019 the Federal Reserve Board issued a ringing indictment stating:

While Minnesota’s educational disparities are well-known, this report shows that these disparities are evident across race, ethnicity, and socioeconomic status…achievement gaps have persisted for decades despite policies implemented to promote equal opportunity for education,

More recently, in an ironic twist, a group of leaders including former Justice Page, announced their belief that Minnesota needs a new constitutional amendment protecting the rights of students to receive an adequate education, evidently because they believed our current clause has failed to afford that right.    It is our thesis, however, that the constitution is not at fault, it is the abject failure of Minnesota advocates for children and for educational leaders to demand that the constitution be enforced to the fullest extent.    We have a robust constitutional right; the Supreme Court has given it meaning.   In Minnesota, we simply don't care enough, it seems, to demand that our courts, our Governors, and our legislators, fulfill the mandate that is plainly there.  More on this topic to come.

Replacing Minnesotas Education Clause with Floridas Makes no Sense

Jvonkorff on Education has begun posting on the proposal to repeal Minnesota's education clause and replace it language from Florida and Louisana.   This is the second in the series.   Today's post looks at the claim that the new amendment would bring the benefits of the Florida constitution to Minnesota.  Based on the actual language of the real Florida constitution, and the Florida experience, this seems like a really bad idea.   As a reminder, once again, we agree completely with those who assert that Minnesota needs to make major changes in its education system, especially as it pertains to the students we have been leaving behind, students who are disproportionately lower-income students, students of color, students with dyslexia, and English language learners. However, the suggestion that the proposed constitutional amendment is going to power Minnesota to solve its achievement gap, based on what has happened in Florida, seems a bit misleading.

Advocates for the new amendment assert that Florida's educational scores have risen and that its achievement gap has improved, and they attribute that improvement to the adoption of an amendment to Florida's constitution, which they then claim will lead to similar improvements here in Minnesota if we adopt the amendment that they propose.    Hold on!  We don't pretend to be an expert in Florida's education system or its constitution.  On the surface, however, one is suspicious that the advocates are not being altogether straight in the differences between Florida's constitution and the clause that they are offering here in Minnesota. Here are some things we need to scrutinize if the new Minnesota proposal is going to get serious consideration:

(1) The proposed Minnesota amendment does not bring with it from Florida some of the main features of Florida's education clause. Why did the Minnesota proponent's leave those provisions behind?  In 2002, citizens approved an amendment to the Florida Constitution that set limits on the number of students in core classes (Math, English, Science, etc.) in the state's public schools. Beginning with the 2010-2011 school year, the maximum number of students in each core class would be 18 students in prekindergarten through grade 3;22 students in grades 4 through 8; and25 students in grades 9 through 12. Since 2003, Florida has allocated a total of $43 billion dollars to class size compliance, some for hiring more teachers, and some for adding new facilities because reducing class size requires more classrooms.

Although advocates for the new Minnesota amendment claim that they are bringing the benefits of the Florida constitution here, they are leaving in Florida the class size protections?  Why is that?  And, why are they so certain that it wasn't the class size provision that accounts for the improvements that they assign instead to the other Florida provision.

(2)  The Florida amendment that they are borrowing from (without the class size protection) begins as follows:

(a)The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require

(3)  The proposed Minnesota version would be somewhat different.  It would read:

All children have a fundamental right to a quality public education that fully prepares them with the skills necessary for participation in the economy, our democracy, and society, as measured against uniform achievement standards set forth by the state. It is the paramount duty of the state to ensure quality public schools that fulfill this fundamental right.

High quality is changed to quality.   System of free public schools is changed to public schools.   Uniform efficient safe and secure is expunged from the language. "Adequate provision shall be made" is removed.  Class size protections is gone; the high is removed from quality; "adequate provision is removed.  Uniform, efficient, safe and secure is gone.  Indeed, how can anyone possibly argue that we are getting Florida's constitution?  

(4)  These word changes make a difference   Under the Florida version, the State of Florida introduced a voucher system called the Opportunity Scholarship system designed to allow children to port their public support out of a public school and use them in private schools. In the 2006 case, Bush v Holmes, the Florida Supreme Court held that the words uniform and free prohibited the state from funding private schools.  The advocates for the Minnesota version have altered the Florida language by eliminating those words.   Clearly, the intent is to eliminate provisions that demand adequate state funding, but assure that the new amendment is a vehicle for state support for private schools. 

(5)  In the last decade many advocates have come to believe that even under the new Florida Constitution, the state is failing to make necessary investments in public education.   In January of 2019, the Florida Supreme Court finally decided the "Citizens for Strong Schools" case holding that the Florida "paramount duty" language did not impose an enforceable duty on the State.  Under the Florida language, which is more powerful that proposed for Minnesota, the Supreme Court has held that the legislature has discretion to spend what it wants to spend on Florida schools. 

It does seem that the amendment we are being asked to consider primarily eviscerates the constitutional rights that we now have in Minnesota, in return for a clause designed to allow students to opt-out of public schools and port their money to private schools.   Is there anyone out there who can talk me down from the ledge on this one?

Does Minnesota Need a New Education Amendment

This post begins a series to discuss whether Minnesota needs a new education clause to replace the old one that has served us for over a century.   What is wrong with the old amendment?  What benefits will the new one bring, and will we be losing any of the benefits of the old?   Do the proponents of the new have a transparent agenda? 

Let us begin by agreeing that Minnesota's education system is failing too many students.  Let us also agree that our leaders in both political parties and in the executive and legislative branches lack a bold plan to transform our current education system.  None of the last three governors --including the current governor -- have even hinted at a plan to transform Minnesota's public education system so that it works for the students that Minnesota traditionally leaves behind.  Something must be done, but the central question is whether this failure arises from the constitution itself and whether the new constitutional amendment would actually make things better.  Or, is it finally time for our governor to present the legislature with a bold plan to implement the constitution that we already have?

 Minnesota currently has a robust constitutional protection for our system of public education.   The current constitutional provision comes with specific language that was devised in the 19th century as part of a great national movement called the Common Schools Movement, associated with Horace Mann, and with the anti-slavery movement as well as the effort to revitalize our national democracy by assuring that all would be prepared for productive participation in society.   Many of the sponsors of this movement were abolitionists, and they envisioned that education would become available not only to working whites but also to former slaves.

 Minnesota's current constitutional education clause provides as follows:

 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.

 Like all constitutional provisions, the reach of this clause required interpretation over the years, but in 1993 and 2018, the Supreme Court afforded the clause binding interpretation that makes it more robust and meaningful than many of its peer clauses in other states.  A careful review of the language of the clause itself discloses several important features:

    (1)  The clause imposes a duty on the legislature.
    (2)  The clause requires the establishment of a general and uniform system of public schools.   
    (3)  The legislature must make provision by taxation or otherwise to secure that uniform system.  
   
As it happens, our Supreme Court has connected the education clause to Minnesota's Uniformity Clause, a part of our constitution that  is derived from the federal 14th amendment, which guarantees "equal protection."  Our supreme court has held that because the right to an adequate education is a fundamental right, legislation that impairs the fundamental right is subject to what the courts call "strict scrutiny." 

 Because we have lived with this existing clause, and because the clause is mirrored to a great extent in other state constitutions passed in the mid to late 19th centuries, there are many decisions interpreting the impact of similar clauses.  Important cases arising under similar clauses have been decided in Connecticut, North Carolina, Kansas, Wyoming, Colorado, Alabama, Pennsylvania, New Jersey, and many others.  Not all courts, however, have interpreted their education clauses to mandate the legislature to fund an adequate education.  In Minnesota, our Supreme Court has placed itself amongst the court that has held that the education clause imposes an enforcible mandate on the legislature because the clause affords a fundamental right.  The Supreme Court has held:

(a) that the requirement to create a uniform system of public education imposes on the legislature a duty to provide districts with enough funding to afford each student an education that meets all state standards;
(b) that the education clause does not guarantee equality of access to funding to provide education beyond that required by state standards
(c) that the eduction clause may extend to other defects in our uniform system, as for example claims that our school system is not providing an integrated education. 

Against a challenge by Governor Dayton's administration, as well, the Supreme Court has rejected claims that the constitutional clause is directed only to the legislature and has held that the constitution creates a fundamental enforceable right, that is so powerful that it supersedes legislative immunity.  The clause is a direction to the legislature and enforcible by Minnesotans against the legislature. 

  Under our existing Supreme Court precedent --- and this is very important --- the legislature establishes state standards, that is, what we expect school districts to deliver.    In Skeen v. State, the Supreme Court considered whether the Court should determine the requirements for a Minnesota adequate education. (Court decisions in some other states have recognized a constitutional function for the judiciary to set out the basic parameters of an adequate education.)  However, the Skeen decision defined a Minnesota adequate education under the constitution as one that meets the standards set by the legislature and by authorized state education regulations, and of course, applicable federal requirments.

Our constitutional framework as it happens has failed largely in the legislature and governor's efforts to comply with the education clause.   We've discussed that failure in a number of prior posts: but the overwhelming evidence is that the flaw in our education system lies in the lack of leadership in the executive and legislative branches to implement our constitutional education clause.

The failure of Minnesota to realize the promise of an adequate education for all children has led some to argue that the problem with our education system can be solved by a new constitutional amendment in place of the old.   A consortium of leaders has proposed an amendment that would read as follows:

 EQUAL RIGHT TO QUALITY PUBLIC EDUCATION. All children have a fundamental right to a quality public education that fully prepares them with the skills necessary for participation in the economy, our democracy, and society, as measured against uniform achievement standards set forth by the state. It is the paramount duty of the state to ensure quality public schools that fulfill this fundamental right.

   
There is much in common between the two clauses.  However, as we review this new proposal, it is important that we ask what is different in the new constitution.  The proposed amendment would supplant the old and so we need to ask what are we losing, and what are we gaining in return.   Presumably, the authors of the amendment believe that it will accomplish something that the old provision will not, and it is important as well to consider what unanswered questions are left to be explored.  

Along with the press release announcing the proposed amendment, the proponents delivered a somewhat loosely researched article purporting to show that similar amendments were passed in Florida and Louisiana, and that following passage of those amendments, those two states experienced substantial educational improvement.  Jvonkorff on Education is going to suggest that these claims ought to be scrutinized with a great deal of skepticism.  Indeed, it is very common for advocates for one reform or another to point to changes that occurred, even in Florida or Louisiana and assert that those changes are the cause of improvements in educational results.  Hurricanes have happened in both those states: if education improved after the hurricane, we can't assert that hurricanes cause educational scores to increase.

One difference between those two states and Minnesota is that both states did not have enforceable constitutional mandates like that of Minnesota.  So we ought to take a pause and subject the claims that doing what Florida did will make a difference for our children to deep scrutiny.  Another point that deserves mention is that if the current amendment is repealed and replaced, we will lose completely the benefit of the existing Supreme Court decisions.  We need to ask a number of questions then:

(1)  Who will be able to sue to enforce the new amendment, and who will they be able to sue?
(2)  What does it mean that the constitutional amendment states that the State has the paramount duty to provide an adequate education? Might that actually be read to mean that only the state itself can enforce the right? 
(3)  Will families be able to sue their school district to provide education even if the state fails to provide enough funding?  Are the skeptics right that this amendment is actually designed to provide a constitutional right to vouchers?
(4) If these amendments are modeled after Florida and Louisiana, how have the Florida and Louisiana courts implemented them?  Can a citizen in Florida enforce the constitutional right, or Louisiana?   Are we adopting an amendment from states that actually enforces their constitution more robustly than Minnesota, or are we copying a clause which the courts have held that the right is not enforceable against the state? 

For the Florida Supreme Court's interpretation of the constitutional provision see this summary of Citizens for Strong Schools.

We'll have more to say about these issues in coming posts?