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?
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