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

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

Curriculum Content Standards Help Define a Minnesota Adequate Education

Minnesota's Educational Adequacy Framework Part IV

We've been writing about the legal framework in Minnesota that describes an adequate K-12 education.  Today's post provides follow up on our last post on the Minnesota Academic Standards.   The Academic Standards law commands the Department of Education that the Commissioner promulgate regulations on what students must learn. In essence, the Academic Standards law calls upon the Commissioner to  establish specific  learning content and specific academic standards that form part of the definition of a Minnesota adequate education.  That law requires that content standards be established  in literacy, mathematics, science, and social studies.  Today's post takes a look at the nature of these standards in the literacy domain, to emphasize the level of rigor and detail that has been established by the legislature.     

I'm writing these posts, because plaintiffs in two litigations (Forslund and Cruz-Guzman) have used the phrase "adequate education" as part of their assertion that disadvantaged students in Minnesota are being unlawfully deprived of a quality education. 

In response to these two litigations, Governor Dayton and Commissioner Cassellius (or their lawyers in the Attorney General's office on their behalf) have asserted that deciding the content of a Minnesota adequate education is beyond the reach of the courts, and instead allocated entirely to the legislature.   The suggestion seems to be that these litigations must fail, because there is, as yet, no legislatively defined adequate education   However, in our view, that defense is fundamentally wrong, because the legislature has already defined adequate education:  the court's focus should have been on whether the legislature has failed to implement a general, uniform, thorough and efficient system to deliver the adequate education that the legislature has already required.  

The Department's regulations require all districts  to put these state content standards into place so all students have access to high-quality content and instruction, (See Minnesota Department of Education's web page).  The Department's Standards Q and A explains: 

The standards will be reviewed again during the 2018-2019 school year.  The Standards define what all students are expected to know and be able to do, not how teachers should teach ....While the Standards focus on what is most essential, they do not describe all that can or should be taught. A great deal is left to the discretion of teachers and curriculum developers. The aim of the Standards is to articulate the fundamentals, not to set out an exhaustive list or a set of restrictions that limits what can be taught beyond what is specified herein.

Minnesota standards are grade- specific.  They form the core of Minnesota's core curriculum and instruction.  Teachers, curriculum specialists and district leadership are expected to align curriculum to these standards. Students are tested on their mastery of the standards through a massive program of state standardized testing.  The results of standardized tests are published annually, and the results are used extensively in the media to evaluate the performance of schools and districts against state established proficiency norms.  It is hard to imagine a more comprehensive system of adequacy demands than we have in Minnesota.   The real issue in Minnesota is whether the legislature has failed to provide districts the tools they need to achieve state established adequacy standards, and whether this failure adversely impacts disadvantaged students. 

It is thus essential that both the plaintiffs and defendants  and the courts in these constitutional litigations accept the expansiveness and the full rigor of the Minnesota content standards.    We keep hammering home the point that  there should be absolutely no doubt that the Minnesota legislature, aided by legislative authorized standards, has established robust and rigorous standards for  a public school education.     .  

Take, for example a few excerpts from the literacy standards for fourth graders, setting the following particularized expectations:

 ==Demonstrate command of the conventions of standard English grammar and usage when writing or speaking. a. Use relative pronouns (who, whose, whom, which, that) and relative adverbs (where, when, why). b. Form and use the progressive (e.g., I was walking; I am walking; I will be walking) verb tenses.c. Use  modal auxiliaries (e.g., can, may, must) to convey various conditions. d. Order adjectives within sentences according to conventional patterns (e.g., a small red bag rather than a red small bag). e. Form and use prepositional phrases. f. Produce complete sentences, recognizing and correcting inappropriate fragments and run-ons. g. Correctly use frequently confused words (e.g., to, too, two; there, their      

  ==By the end of the year, read and comprehend literature and other texts including stories, drama, and poetry, in the grades 4-5 text complexity band proficiently and independently with scaffolding as needed at the high end of the range.

  ==Compare and contrast the treatment of similar themes and topics (e.g., opposition of good and evil) and patterns of events (e.g., the quest) in stories, myths, and   traditional literature from different cultures, including American Indian.

  ==Refer to details and examples in a text when explaining what the text says explicitly and when drawing inferences from the text.

   ==Conduct short research projects that build knowledge through investigation of different aspects of a topic.

These are just a sample of the required Minnesota standards in the reading, writing and speaking domain.   The K-12 standards in this domain alone consume over 30 pages. These are components of a massive infrastructure defining a Minnesota adequate education.

Below are sample sections from the MDE's narrative description of state exit expectations for  "Students Who are College and Career Ready in Reading, Writing, Speaking, Viewing, Listening, and Media Literacy and Language" taken from the above cited Q & A Standards.   These summaries are not the standards themselves

• [Students] demonstrate independence [in Reading]:   Students can, without significant scaffolding, comprehend and evaluate complex texts across a range of types and disciplines, and they can construct effective arguments and convey intricate or multifaceted information. Likewise, students are able independently to discern a speaker’s key points, request clarification, and ask relevant questions. They build on others’ ideas, articulate their own ideas, and confirm they have been understood. Without prompting, they demonstrate command of standard English and acquire and use a wide-ranging vocabulary. More broadly, they become self-directed learners, effectively seeking out and using resources to assist them, including teachers, peers, and print and digital reference materials.

• They build strong content knowledge. Students establish a base of knowledge across a wide range of subject matter by engaging with works of quality and substance. They become proficient in new areas through research and study. They read purposefully and listen attentively to gain both general knowledge and discipline-specific expertise. They refine and share their knowledge through writing and speaking.

• They comprehend as well as critique. Students are engaged and open-minded—but discerning—readers, listeners and viewers. They work diligently to understand precisely what an author or speaker is saying, but they also question an author’s or speaker’s assumptions and premises and assess the veracity of claims and the soundness of reasoning.

This series begins with a Post on the World's Best  Workforce Law 
Past Posts 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

Academic Standards Law is Part of Minnesota Adequate Education Framework

We've been writing about the legal framework in Minnesota that describes an adequate K-12 education.  I'm writing these posts, because plaintiffs in two litigations (Forslund and Cruz-Guzman) have used the phrase "adequate education" as part of their assertion that disadvantaged students in Minnesota are being unlawfully deprived of a quality education.   In response, Governor Dayton and Commissioner Cassellius have asserted that the definition of that adequate education is beyond the reach of the courts, and is allocated entirely to the legislature.   However, in our view, that defense is irrelevant to enforcement of the Constitutional education clause to protect the rights of students to an adequate education, because the legislature has already defined adequate education:  the only constitutional question is whether the legislature has failed to implement a general, uniform, thorough and efficient system to deliver the education that the legislature has required. 

The constitutional education clause requires the legislature to provide a general, uniform, thorough and efficient system of public education.  It makes senses, doesn't it, that the legislature should play a leading role in deciding what level of education should be expected of Minnesota students, what level of education Minnesota school districts are expected to deliver.   In a recent case, the Minnesota Court of Appeals ruled that the definition of an adequate education is not a judicial function, but is reserved to the Courts.  But for some reason, the Court failed to understand that Minnesota has a robust and rigorous legislative framework describing an adequate Minnesota education.

In the first post in this series, we explained two components of the legislative definition of a Minnesota adequate education:  Minnesota's World's Best Workforce statute and Minnesota's special education law.  This third post describes Minnesota's Academic Standards law, found at Sections 120B.018 and following sections.   The Academic Standards Law plays a central role in the rigorous definition of adequate education which the legislature has established. 

The statute defines "Required standard" as follows:

"Required standard" means (1) a statewide adopted expectation for student learning in the content areas of language arts, mathematics, science, social studies, physical education, and the arts, or (2) a locally adopted expectation for student learning in health or the arts.

Section 120B.02 tells us that: The legislature is committed to establishing rigorous academic standards for Minnesota's public school students.....To that end, the commissioner shall adopt in rule statewide academic standards..."   Together, these departmental rules along with th Minnesota's Academic Standards statutes impose two basic requirements for students by the time that they graduate.  Students must:    

(1)    Satisfactorily complete the state course credit requirements under Minnesota Statutes, section 120B.024.  
(2)    Satisfactorily complete all state academic standards (or local academic standards where state standards do not apply.)  See Minnesota Statutes section 120B.021 subdiv 1.  

At this point, we are entitled to ask, how a Court could arrive at the conclusion that the Minnesota legislature has not established academic standards defining an adequate education? The academic standards law commands the Commissioner of Education to draft rules that set rigorous standards for mathematics, language arts, social studies among other subjects.  The academic standards rules are found in the Minnesota Code of Agency Regulations Part 3501, where one finds academic standards governing reading, writing, speaking, mathematics, arts, science, and social studies.  The Minnesota Department of Education explains that

The Minnesota K-12 Academic Standards are the statewide expectations for student achievement in K-12 public schools. The standards identify the knowledge and skills that all students must achieve in a content area by the end of a grade level or grade band.....All students—including students with unique learning needs—must meet the credit requirements and satisfactorily complete all state and local standards in order to graduate.

The state has an elaborate system to measures district, school and student progress towards meeting these adequacy goals.  All public school students must be assessed in reading and mathematics in grades 3-8 and once in high school. All public school students must be assessed in science in grades 5, 8, and once in high school. All public schools in Minnesota administer the following tests: •Minnesota Comprehensive Assessments (MCA) •Minnesota Test of Academic Skills (MTAS) in reading and mathematics.   We'll post on the measurement structure later.

The academic standards law provides a robust framework describing an adequate Minnesota education.

Minnesotas Adequate Education Laws--Special Education

What is an Adequate Education under Minnesota Law (Part II)
Special Education

In the first post of this series, I explained that there are two litigations pending in the appellate courts in which plaintiffs are trying to use Minnesota's Constitutional Education Clause to force urban school districts to improve public education for disadvantaged students.   One litigation, Cruz-Guzman argues that public education provided in racially isolated schools is not adequate for many students.   The second litigation, Forslund, argues that our tenure and seniority system subjects disadvantaged students disproportionately to incompetent teachers.  For some reason, the State of Minnesota defended these litigations, in part, by contending that the legislature, not the courts, must define what an adequate education is.  

As I said in the last post, this defense seems to JvonKorff on Education to be passing strange, especially coming from Governor Dayton and Commissioner Cassellius, because Minnesota has a robust and demanding definition of educational adequacy.  Of course it is the legislature's primary responsibility to define an adequate education, but the legislature has done exactly that, already.  Neither of the plaintiffs in these two cases needed the Courts to concoct a definition of adequate education: its right there in law already. 

This, then,  is the second in a series of posts examining each of the laws  that prescribe Minnesota's school districts educational responsibilities.  In the previous post, we looked at the World's Best Workforce Law.  This time, we look at Minnesota's special education law, which sets minimum standards impacting between 10 and 20 percent of students in most Minnesota school districts.

The Federal special education law requires Minnesota public school districts to provide  a "free appropriate public education" (FAPE) to all students who have a disability (that meets federal or state disability standards) in conformance with an individual education plan (IEP) in the least restrictive appropriate setting.  It is common for legislators to assert that special education is only a federal mandate, but actually the federal special education mandate applies only because the Minnesota legislature has passed laws implementing and accepting the federal special education requirement.     Moreover, Minnesota's special education laws are in a number of respects more demanding that the federal laws.   Legally, special education is an integral part of the state legislature's definition of the minimum adequate education that must be provided by local school districts.

Special education must be provided to resident students whether they attend public or non-public schools, at the cost of the public school district.  The special education student attending a non-public school receives the special education component at the district's expense, but must pay the non-public school's applicable rate of tuition.

Since the purpose of this series of posts is to rebut the contention that Minnesota lacks a legislative standard for "adequate education," we insert here at this juncture the central statutory legislative requirement, Minnesota Statutes Section 125.03:

(a) As defined in paragraph (b), every district must provide special instruction and services, either within the district or in another district, for all children with a disability, including providing required services under Code of Federal Regulations, title 34, section 300.121, paragraph (d), to those children suspended or expelled from school for more than ten school days in that school year, who are residents of the district and who are disabled as set forth in section 125A.02. For purposes of state and federal special education laws, the phrase "special instruction and services" in the state Education Code means a free and appropriate public education provided to an eligible child with disabilities. "Free appropriate public education" means special education and related services that:

(1) are provided at public expense, under public supervision and direction, and without charge;

(2) meet the standards of the state, including the requirements of the Individuals with Disabilities Education Act, Part B or C;

(3) include an appropriate preschool, elementary school, or secondary school education; and

(4) are provided to children ages three through 21 in conformity with an individualized education program that meets the requirements of the Individuals with Disabilities Education Act, subpart A, sections 300.320 to 300.324, and provided to infants and toddlers in conformity with an individualized family service plan that meets the requirements of the Individuals with Disabilities Education Act, subpart A, sections 303.300 to 303.346

.
This special education mandate has substantive and procedural components.  It is designed around three basic principles.  The first is that students with disabilities have individual needs, and therefore require individual accommodations to assure that they can reach their maximum potential.   The second is that the reasonable accommodation should be provided in the least restrictive alternative and where reasonably appropriate in the regular classroom of the students' peers.  The third is that provision of special education services should be wrapped in a set of procedural protections that grant the student and the parent rights to participate in major decisions, and provide certain protections when the student violates disciplinary rules.  

The special education mandate has staffing implications:  in most school districts, the special education staffing teacher-to-student ratio is higher than for other students, and the teaching staff must have appropriate licensure and training to deliver services.   The mandate has implications for the delivery of instruction, because the classroom teacher must provide individualized accommodations, sometimes with assistance, to meet the student's needs.   And, it has financial implications, because the sum of state and federal financial support for provision of those services is roughtly 700 million dollars per year less than the statewide cost of providing those services. In addition, as we shall see in a subsequent post, the State monitors and critiques districts when their students fail to meet standards of proficiency. 

A full treatment of special education, like the World's Best Workforce topic in the past post,  is beyond our intended scope.

Part I in this Series:  World's Best Workforce

McCleary v State and Determining the Cost of Education

This is the third in a series of posts on the recent Washingto Supreme Court decision,  McCleary v. State, enforcing the State's constitutional requirement to assure appropriate funding for public education.  In  the first post, we introduced the Supreme Court's reaffirmation of the concept that State's constitutional Education Clause must be enforced by the judiciary.  In legal terms, we say that claims against the state challenging constitutionally inadequate funding are "justiciable."   The 79-page McCleary decision covers a lot of legal ground.  In the second post,  we began a discussion of just one of the principles propounded by McCleary, that  the basic education funding formulas did not correlate to the real cost of amply providing students with the constitutionally required education.  In my view, this is the central issue in constitutional funding jurisprudence today.

Minnesota's Constitution, Article XIII, section 1 states:

UNIFORM SYSTEM OF PUBLIC SCHOOLS. The stability of a republican form of government depending mainly upon the intelligence of the people, it is the duty of the legislature to establish a general and uniform system of public schools. The legislature shall make such provisions by taxation or otherwise as will secure a thorough and efficient system of public schools throughout the state.

I believe that if the Minnesota Constitution's requirement to secure a "thorough and efficient system of public schools throughout the state" means anything at all, that it means that the legislature and governor must fund the true cost of the education that they mandate, and that means to engage in a deliberate effort to determine costs.   How can it be "thorough and efficient" to demand that a product be produced for ten million dollars, providing only five? The "thorough and efficient" requirement, I believe, begins with actually making a credible effort to determine the cost of providing that mandated education within the framework established by Minnesota law.  

Any credible costing system must begin by costing the current system of education, based on the legislative requirements we face today.   For example, the current Minnesota law on special education, and the administration of that law, is costing about $1.4 billion per biennium more than the revenues provided.   Now there are experts somewhere who claim that if the laws were rewritten, and if various legal constraints were lifted, that we could deliver a creditable special education program for less that we do today.     But I believe that the Constitution does not allow the legislature to fund public education at a level that might work if all of those requirements were lifted, but then leave the requirements in place.    That is not a thorough and efficient system of public education.  If the legislature wants to fund special education at a lower price, then the constitution requires, I believe, that it implement reforms that are necessary to make it possible to deliver the lower cost services.  That's the lesson of McCleary v. State and cases like it.

The tragedy is that in Minnesota, the legislature never makes even the most minimal effort to determine what the average teaching cost should be, in order to maintain a highly qualified reliable teaching force.  Neither the legislature nor the governor make an honest effort to total up the cost of textbooks, teachers, transportation, and all the rest, and then fund it.   We use a funding system that merely provides revenue in the amount that the legislature wills, and mandates program that the legislature wills, without connecting actual cost to revenue.    Early in his term in office, Governor Pawlenty recognized the logic of this basic idea...that public school funding should be rationally based on data.    To this end, on June 14, 2003, Governor Pawlenty named a 19-member Task Force to focus on Minnesota's school finance system.  The first recommendation of that Panel, found in its Report "Investing in our Future", was that Minnesota’s 21st century educational funding formula should be a rationally determined, learning-linked, student-oriented and cost-based Instructional Services Allocation.  To begin that effort, the Task Force recommended that an Instructional Services Allocation funding approach should be developed for Minnesota schools building on a professional panel's research-based judgment.   Suggestions that the Task Force Study might result in a $2-billion increase in school funding essentially torpedoed that effort and the governor cancelled the task force's work.

A pioneer press article in 2004 explained:

The governor's task force is recommending a funding formula based on the actual cost of providing a student with an education sufficient to meet state standards. But the proposal stops short of setting that cost. Schools would still get additional funding help for certain challenges, such as poverty and students who are learning to speak English.  Similar panels have had limited results in recent years trying to improve and simplify the state's K-12 funding system.  Former state senator and task force member Duane Benson said legislators typically look only at how such changes would affect their local schools. Benson said he's optimistic lawmakers will look hard at this proposal and adopt most of it.  "When change comes, sometimes it's a little scary. This can be a little bit scary, but I think doing nothing can be more scary," Benson said.

As I explained in the prior post, the State of Washington engaged in a similar effort.  But in Minnesota, the effort to develop cost-based public school funding was derailed even more decisively than in Washington.   As the results began to materialize, the Governor cancelled the task force's work amidst partisan cross accusations.

How should the Governor and legislature go about accomplishing this objective, of funding education based upon valid data and non-partisan logic?   First and foremost, Governor Dayton should restart the costing out process that Governor Pawlenty abandoned.  The Governor had an opportunity to correct Governor Pawlenty's mistake, but instead, he created a task force designed to paper over the problem.  Its mission statement was not to make the true cost of education transparent, but rather to attempt to assure that current funding is distributed as fairly as possible without significantly rocking the boat?   During the next legislative session, the legislature should be setting school funding policy based on the true cost of mandated services.  If it does not, it is time to challenge that abdication of responsibility in court.

 Links
McCleary v State, Washington's Groundbreaking School Finance Decision

 McCleary v. State, Part I  

McCleary v State Requires Legislature to Base Funding on Actual Cost
Jvonkorff on Education McCleary v. State, Part II
McCleary v State and Determining the Cost of Education
Jvonkorff on Education McCleary v. State, Part III
 McCleary v. State: what level of scrutiny is appropriate for legislative funding decisions
Jvonkorff on Education McCleary v. State, Part IV
Correlating the cost of education: fund the child.
Jvonkorff on Education  McCleary V. State Part V
Summary of Decision Network for Excellence
Washington Supreme Court Blog  
JvonKorff on Education, The Rose Decision 
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