Minnesota's Adequate Education Laws

What is an Adequate Education under Minnesota Law (Part I)

Jvonkorff on Education has been on vacation, but recent developments has encouraged its return.  In two cases, Governor Dayton and Commissioner Cassellius have taken the position that litigants seeking to enforce Minnesota's constitutional education clause cannot rely upon a claim that children are not receiving an adequate education, because it is the legislature's responsibility to define adequate education, not the courts.  This contention seems strange, because the Minnesota legislature has passed a  series of robust and comprehensive laws designed to tell the public and school districts what a Minnesota adequate education is.  

The dispute over who defines a Minnesota adequate education arises in the following context.   In the Cruz-Guzman case, plaintiffs  from urban districts alleged that de facto segregation of Minnesota school districts prevents disadvantaged students from receiving an adequate education.    There is, they claim, a direct connection between integration and educational quality, and they urged that Minnesota's constitutional education clause requires the Governor, the Commissioner of Education, and the legislature to fix that problem.   In the Forslund case, plaintiffs from urban districts alleged that tenure and seniority laws had the effect of allocating incompetent teachers to students and classrooms who desperately need outstanding teachers.  They contended that those students were not receiving an adequate education as a result.

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.    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.  This is a first in a series of posts examining each of the laws  that prescribe Minnesota's school districts educational responsibilities.  

Minnesota's World's Best Workforce Law (WBWF)

The MDE World’s Best Workforce webpage explains that:

The World’s Best Workforce1 bill was passed in 2013 to ensure every school district in the state is making strides to increase student performance. Each district must develop a plan that addresses the following five goals:

• All children are ready for school. 
• All third-graders can read at grade level. 
• All racial and economic achievement gaps between students are closed. 
• All students are ready for career and college. 
• All students graduate from high school.

This requirement is found at Minnesota statutes § 120B.11(c), and you can click on the link here to read this important statute.  The WBWF statute is not mere puffery.   It requires every school district to incorporate efforts to achieve these goals into its strategic plan.   The statute provides:

A school board, at a public meeting, shall adopt a comprehensive, long-term strategic plan to support and improve teaching and learning that is aligned with creating the world's best workforce and includes:

(1) clearly defined district and school site goals and benchmarks for instruction and student achievement for all student subgroups identified in section 120B.35, subdivision 3, paragraph (b), clause (2);

(2) a process to assess and evaluate each student's progress toward meeting state and local academic standards, assess and identify students to participate in gifted and talented programs and accelerate their instruction, and adopt early-admission procedures consistent with section 120B.15, and identifying the strengths and weaknesses of instruction in pursuit of student and school success and curriculum affecting students' progress and growth toward career and college readiness and leading to the world's best workforce;

(3) a system to periodically review and evaluate the effectiveness of all instruction and curriculum, taking into account strategies and best practices, student outcomes, school principal evaluations under section 123B.147, subdivision 3, students' access to effective teachers who are members of populations underrepresented among the licensed teachers in the district or school and who reflect the diversity of enrolled students under section 120B.35, subdivision 3, paragraph (b), clause (2), and teacher evaluations under section 122A.40, subdivision 8, or 122A.41, subdivision 5;

(4) strategies for improving instruction, curriculum, and student achievement, including the English and, where practicable, the native language development and the academic achievement of English learners;

(5) a process to examine the equitable distribution of teachers and strategies to ensure low-income and minority children are not taught at higher rates than other children by inexperienced, ineffective, or out-of-field teachers;

(6) education effectiveness practices that integrate high-quality instruction, rigorous curriculum, technology, and a collaborative professional culture that develops and supports teacher quality, performance, and effectiveness; and

(7) an annual budget for continuing to implement the district plan.

Ironically, the WBWF demands that school districts include in their strategic plan a strategy equitably to distribute quality teachers, thus supporting the goal, if not the means to reach that goal, propounded by the plaintiffs in Forslund.   In the next posts, Jvonkorff on education will discuss other rigorous requirements in Minnesota law defining the Minnesota legislature's vision of an adequate education.  

Next Post:  Minnesota's Special Education law is part of Minnesota's adequate education framework.

• Minnesotas Adequate Education Laws--Special Education 

• Academic Standards Law is Part of Minnesota Adequate Education Framework

• Minnesota's Academic Content Standards Form Part of the Definition of Adequate Education. 

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

McCleary v State Requires Legislature to Base Funding on Actual Cost

In yesterday's post, I began a discussion of the recently issued Washington State Supreme Court decision in McCleary v. State regarding funding of public education.  Today, I want to carry forward that discussion by focusing on the part of the decision that discusses the legislature's obligation to base the funding formula upon the true cost of the educational program mandated by the legislature.  The case is instructive, because the issues facing the State of Washington bear a striking resemblance to the circumstances here in Minnesota in many respects.   Both states, Washington and Minnesota, transitioned from what the McCleary Court describes as a seat-based education system  to a performance-based system. And both states have failed to adjust their funding approach the significant change in costs that results from that transition.

 In a seat-based system,  the state mandates that each school district supply a certain amount of total "seat-time"  for all students, and it mandates as well, a certain amount of seat time in particular subjects, such as math, social studies, science, reading, the arts and so on.  

In a seat-based paradigm, public education sold time in a chair, with a teacher at the front of the classroom.  The quality of the teaching and the curriculum was locally determined and locally adjusted.  If local schools were confronted with less prepared students, they could spend more to make up the shortfall, or they could adjust their graduation expectations downward accordingly.   Under the seat-based education system,  Minnesota lacked any state mandate regarding the degree of difficulty of the subjects taught to the students occupying those seats, nor any state mandate as to the level of educational proficiency that students must attain in order to be issued a high school diploma.   Under the seat based paradigm, costing public education was much simpler, because you can produce an hour of seat time for any student at the same price, regardless of the student's particular educational challenge. If the funding were reduced, you could increase class size, cut textbooks, and even lower the rigor of a school district's educational expectations.

But once you change to the proficiency paradigm, as both Washington and Minnesota have done,  it becomes necessary to project the actual cost of getting different students to the mandated level of proficiency.   This change, from measuring time in chairs to measuring proficiency occurred in Minnesota the early 1990's.  But Minnesota's legislative and executive branches never adjusted the funding of education to reflect that change, indeed, never developed and implemented methods to cost the new state mandates.  McCleary v State holds that the State does not meet its constitutional obligation to public education, when it sets funding based on politics rather than a data based costing system.  Unless the state legislature bases funding on credible efforts to determine the cost of required programs, it is acting irrationally and irresponsibly.

It stands to reason, certainly, that the cost of delivering students to a pre-set level of proficiency is going to be significantly greater (inflation adjusted), than the cost of simply putting them in classrooms and hoping that they take advantage of  the standard curriculum delivered by the teacher.   Its like the difference between going to the car-dealer and saying, give me all the car you can give me for $20,000, or going to the car dealer and saying, I need a car with 4 wheel drive, exceptional power and handling, and sports-car looks.   Once you specifiy the end result, the cost is likely to rise significantly.

But in both Washington and Minnesota, and in many other states, the legislatures generally focused not on the cost of the newly specified educational result, but instead focused on how much money has historically been provided to public education, and then sought to adjust the level of funding based on existing revenues, tax policy, and the political philosophy of the legislators.

This issue is perhaps the most important issue in school finance.   It permeates the problems we face here in Minnesota, and it was a central focus of the McCleary decision.   The Washington Supreme Court pointed out that State of Washington had actually completed a study by nationally recognized experts Picus and Odden  the results of which led to an estimate that education was underfunded by about $2 billion.  The Supreme Court's opinion details in pages and pages, other studies and reports showing that the current funding system in Washington did not rationally connect to the State legislature's legislative package of basic educational programs. Slip opinion pages 19-35.  The Court explained:

“the funding model for K-12 education has not been updated to reflect the new expectations and has not addressed the question of how to use resources most effectively in order to improve student outcomes.” The report further surmised that “[s]table and significantly increased funding is required to support the evolving needs of our education.  Opinion, pages 23-24.

 The Supreme Court found that the State could not meet its obligation without connecting actual cost to actual revenues:

The evidence at trial showed that the State’s now-abandoned basic education funding formulas did not correlate to the real cost of amply providing students with the constitutionally required “education.” As a result, the State has consistently failed to provide adequate funding for the program of basic education, including funding for essential operational costs such as utilities and transportation. To fill this gap in funding, local districts have been forced to turn increasingly to excess levies, placing them on [an] unstable financial foundation......The basic education funding formulas examined by the trial court did not correlate to the level of resources needed to provide all students with an opportunity to meet the State’s education standards. This disconnect had its genesis in the legislature’s failure to update the funding formulas after the State transitioned from a seat-based education system to a performance-based system in 1992. The legislature continued to fund schools using the formulas adopted in the Basic Education Act—formulas that were based on a snapshot of actual staffing levels and school district expenditures in the mid-1970s, not the level of resources needed to allow students to meet the new performance-based standards.  Because the State’s funding formulas did not correlate to the actual cost of maintaining its basic education program, state funding for “basic education” consistently fell below the mark.  

Whether you think that we have enough school funding, too much, or too little, surely we can all agree that it makes sense that when the legislature determines school funding, it should start by determining how much it should cost to deliver the education that the legislature wants to accomplish.   In my next post, I'll discuss the implications of this important concept:  that the legislature must engage in an effort to connect actual cost of mandated programs to the revenues provided.

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

Panic in the Education Lifeboat Leads to Tossing Some Overboard

House and Senate are confronting a statewide financial crunch. Huge increases in the health care budget, the banking crisis and recession, combined with a decision that the state will not look to new revenues, has led the House and Senate to inflict significant financial pain on K-12 education. State mandated special education expenditures are slated to grow significantly during the next biennium , but the House and Senate are proposing not to fund these increases, leaving local districts with significant unfunded but mandated special education costs ($700 million per year). Last year, the State increased local districts contributions to state employee pensions, but provided no additional revenue to cover those shortfalls. Although employee pay and benefit increases moderated some in the last biennium, any increase in employee compensation had to come from cuts, because the state formula increase was zero in the last biennium. Across the State, districts made significant, often unprecedented cuts, to cover the shortfalls in education funding.

The Education Community has begun to act like a group of mariners in a lifeboat running out of fresh water. Instead of working together to fight for the education of all children, instead of insisting that the legislature perform its constitutional duty to educate all children, many panicked educators and their advocates are beginning to whisper to their legislators "save us, throw other districts over the lifeboat." There is good reason for panic. Anoka, the State's largest District cut about 70 teachers last year along with 47 staff, and it is scheduled to cut more in the coming year. Lakeville, which just provided a generous settlement to its employees, has suddenly been thrust into a downward fiscal spiral caused by declining enrollment. Districts all over the state are looking at unacceptable cuts that will inflict deep and lasting damage to Minnesota's educational infrastructure.

Some Districts have convinced local legislators to provide them a temporary boost with special earmarks, exempting them from some of the pain. Here are some earmarks inserted into the House Omnibus bill.

District	Earmark
Anoka Hennipen	$4,200,000
Rosemount AV	$3,800,000
South Washington	$1,900,000
Rochester	$1,100,000
Elk River	$1,800,000
Lakeville	$1,200,000

These districts rightly point out to their local legislators that their children will suffer tremendous and unacceptable cuts if they have to share the pain that the House and Senate have in mind. They have identified significant unfairness in state funding, by pointing to problems in the funding system that impact them. Legislators are being convinced to help out some districts by taking money away from others. One unfairness is being addressed by making other unfairness worse. All of this is done in the context of trying to convince legislators who come from districts "like us" that the children in districts who look like our kids are getting a raw deal financially as compared to school districts with children who are different from "our kids." The legislature has been convinced by districts who don't have high numbers of disabled children in their district to pull money away from special education funding, and to shift that money into regular education. As a result, some districts will benefit from a very small funding increase in the general formula, and other districts will pay for that increase with much larger special education deficits.

In almost every other year, educators would come together and tell the legislature that the education community believes that we must provide adequate funding to address the needs of all students, whether they live in our own communities, whether they look like our children, or whether the children are poor and powerless, or upper middle class. But this year, panic has set in on the education lifeboat, and some have decided that would be easier to pitch some kids overboard rather than to advocate that the legislature meet its constitutional responsibility to educate all children. When panic sets in on the lifeboat, dehydrated mariners resort to rationalizations as to why they need more water right now, and other mariners don't, and so on. In the face of this growing everyone for himself atmosphere, our board of education has written a letter to the education community urging that we work together. K-12 has a special standing in the Constitution. The authors of the Constitution foresaw a day when there would be pressure to rationalize in this way. They expected us to resist this temptation. We need to stand together and make sure that the children in all districts, regardless of what they look like, or whether their representatives are republicans, democrats, urban or rural, have the resources they need to succeed. Here is the text of our letter:

During this legislative session, some in the education community have argued that K-12 education must recognize that the State of Minnesota can no longer meet its responsibility to educate all children. During the financial crisis, some have begun to argue that educating students who live in poverty, students with disabilities, and refugees and students who come to Minnesota speaking no English is just too expensive. That has led to an effort in the legislature to support a massive revenue transfer from school districts with high rates of poverty and disabilities to school districts with much lower poverty and disabilities.

We are hearing that we can solve Minnesota's education problems by delinking compensatory funding from the formula. We are hearing that integration revenues are a waste of money because we haven't closed the achievement gap yet. We are hearing that the solution to the funding problem of smaller districts is to take money out of special education and put it on the formula. We are writing to express our belief that this approach is not worthy of the Minnesota education community.

The House Omnibus Education Bill funds an increase in the formula by taking money out of special education. School districts negatively impacted will not be able to cut special education. They will be required to take that money out of the formula. Already, in our District we transfer about $900 from each student in our district to cover the state mandate deficit, despite the fact that we have frozen total special education costs for four years. The cuts in special education will negate completely our formula increases, so that other districts with far smaller special education deficits will get a larger net increase. We don 't want to take money from those districts: we want all districts to have the resources that they need.

If we are to meet the State's Constitutional responsibility to educate all children, we need to make sure that public dollars are spent efficiently. But we cannot meet our responsibilities by defunding the programs that are necessary to close the achievement gap or to educate children with disabilities. We would urge those who represent the education community to come together and join in a common effort to provide appropriate relief on the formula and on categorical funding. Won't you join with us in fighting together for the education of all children in Minnesota by contacting your legislators and other legislative leaders? We cannot assure that all children thrive unless we provide adequate funding appropriate to educational need.

Minnesota's Education System Is Unconstitutional--the Change in State Minimum Basic Education

Yesterday, I began writing about the reasons why I believe that the current legislative provisions for education in Minnesota are unconstitutional. I said that this is a complicated subject. Its one of those issues that cannot be tied up into a neat little sound-bite. I promised to try to provide a series of articles explaining the legal theory that I expound that could be understood by non-lawyers. But I didn't promise that I could do it in a few sentences, nor did I promise that the issues could be understood without a bit of hard work. Today, I write the second post in the series. My goal today is to argue that the first job of the legislature is to define what is the basic education that all Minnesotans should receive.

This is a critical step in understanding the constitutional question. I did not say, nor would I ever argue, that it is unconstitutional for one school district to provide more programs, or different courses, than another school district. You cannot think clearly about this question, I believe, until you recognize that the legislature has a responsibility to define what education each district must provide. Once that requirement has been met, local districts can do more. I contend that the Skeen decision starts with that proposition: that it is primarily a legislative function, subject to public accountability of the democratic process, to tell local school districts what the definition of a state mandated education is. Now, if the legislature were to decide that school districts need not teach all students to read and write in basic English, that might present a constitutional problem of a different kind. But that is not a problem that we have right now. Our first job in understanding how the Constitution applies to the matter of public education is to recognize that the Constitution expects that the legislature will define what education is required.

Beyond that, I would argue, a district can decide to spend more money and offer more programs. The constitutional scrutiny applied to such differences is on an entirely different level than when some districts provide the mandated education and some do not, and when that difference results from the failure of the legislature to make provision for sufficient funding and sufficient power within the school board, to actually achieve that objective.

Now Minnesota's open enrollment system creates special problems in this analysis. Under an open enrollment system, a district that fails to offer amenities like football, baseball, yearbook, and a broad array of activities pays a huge penalty in student enrollment. And, the penalty it pays is the loss of students from families who care enough to invest in the time and effort to send their child to another district, and quite often, that creates an exodus from a district with financial challenges of the very students that the district needs to stay financially viable. This problem must be considered as part of the system that the legislature has created, and which it has failed effectively to address--the danger of the downward spiral. But this is something we can discuss in another post.

To think clearly about this question of what is the basic mandated education, one should begin with the education that the state required back when the Skeen case was being litigated in the District Court in Buffalo Minnesota. What we are going to discover is that there has been a radical change in the legislative definition of the basic education required for all students. I think that even long time educators have forgotten the magnitude of the difference. (Now as I use the word "basic" education, I am not here referring to the idea of a simple McGuffy's reader type education or a "back to basics" education, whatever that means. I use the term basic here as the education which the legislature defines as required of students across the state.)

At the end of the 1980's, the State of Minnesota had a very low minimum requirement for a 12th grade education! Most of us have no idea how little the State actually required of local school districts. Under the regimen that existed at that time, the state's mandatory graduation requirement consisted of three basic components:

• A "Must-Offer" rule that required that every school district offer a certain set of courses to its students. This "must offer" requirement granted great latitude to local districts to offer a broad array of courses in the social studies, language, math and science, or a much narrower range of courses. It also granted great latitude to local districts as to whether it would offer challenging courses with great rigor, or whether the courses offered would be less demanding. If you don't believe me here, I suggest that you do some digging around and look at the State's statutes and rules at this time.
  
• A "Must-Take" rule that required that every student must take certain courses in certain disciplines. But the course content requirements of these courses were almost entirely left open to local option, and students could meet this requirement by taking and passing the course at a very low level, a level that was locally defined.
  
• A "Seat-Time" rule that required that every district require its graduates to take a certain number of course hours spread across certain disciplines. Although we tend to look back in hindsight believing that Minnesota was the "education state," and that surely the State of Minnesota required all of its students to take a rigorous set of courses and to demonstrate mastery of a common core of critical knowledge and skills, in fact, this is not true at all. By the end of the 1980's, it was lawful in Minnesota for a school district to graduate students who didn't know that there were two world wars, or the causes of the civil war, or who couldn't do more than cash register arithmetic. Local school districts could grant diplomas to persons who lacked minimal knowledge, or they could require high levels of proficiency. Minnesota was a radical local option state as a result of a decision of the Minnesota legislature that the State should not impose requirements of great rigor on local districts.

Now this meant that under state law as it existed when Skeen was decided, local districts were not required at the state level to produce graduates literate in math, science, literature, reading and writing. You cannot understand the Skeen decision without understanding this. In the next post, I will tell you that when the plaintiffs argued their case to the Supreme Court, all of the school districts seeking relief told the Supreme Court that their districts were meeting the minimum requirements of the State of Minnesota. They said, look, all of our students are doing well enough to meet state standards (which incidentally were extremely low). The Skeen plaintiffs were not arguing that they could not comply with State standards. They were arguing something quite different. They were arguing that an unequal taxation and finance system made it more difficult for them to comply. Skeen was at its core, an equality of financial resources and equality of taxation effort case, rather than a case challenging the State's failure to provide sufficient resources and local power to provide the State's mandated basic education at all.

Now, since Skeen, a number of major changes have happened in the legislative definition of what local school districts must provide. Today, in Minnesota, about half of the schools in the State are not meeting state defined proficiency standards, standards implemented in law. And the primary reason that this is the case is not, as some suggest, a deterioration in the level of education that students are receiving. The primary reason is that Minnesota law has set a vastly higher minimum state standard required for all students. And so, our constitutional analysis must begin with the fact that in Minnesota today, the state minimum requirements are fundamentally different than they were back when Skeen was decided. Now we still have a long way to go to understand this complicated issue. We need to look at these issues and quite a few more:

• What are the state laws which today define the minimum required education that all school districts must provide. We will see that these laws are vastly more demanding than the laws that existed in the 1980's?
• What is the third kind of constitutional litigation, called the "adequacy litigation," and is that really the right approach to understanding the constitutional infirmity in Minnesota today?
• How are Courts dealing with the problem of local funding that depends on a referendum vote of the citizens of that District? Is it really constitutional for the legislature to let local citizens decide whether to provide funding sufficient to meet state standards? If it is, then what really is the meaning of the Constitutional guaranty?
• What are we to make of a legislative system which purposely imposes mandates that intentionally cost hundreds of millions of dollars more than the legislature appropriates for this purpose?
• Is there any requirement that when imposing mandated educational service, that the legislature can refuse to provide funding for that service and simultaneously deprive local school districts the power to raise the revenues that the State recognizes are required to provide that service?
• Why is it commonly contended that launching a constitutional challenge is vastly expensive in legal and expert witness fees? Who is defining the strategy to launch a constitutional challenge, and is it possible that we are overlooking simpler less costly and more straightforward approaches?
• What are recent cases in other States saying, and do they offer any guidance for Minnesota? What does the Skeen case say, and does it suggest that plaintiffs today might have a strong chance of prevailing, and if so under what circumstances?

We are a long way from being done. I want to come back to this fundamental point, however. I believe that the Constitution requires the legislature to follow a rational tiered approach to providing a quality education in Minnesota. The first step is to decide what a 21st education must require. This is a legislative function to which the Courts are going to afford substantial deference. The cost of public education, that is the education mandated by the State, will rise and fall to a significant extent based upon that legislative definition. As I write on this topic, some folks are going to say, oh, oh, he is trying to get the courts to raise our taxes. And the answer is no, I am trying to get the legislature to fund what it mandates and to give local school districts the power to deliver what the State mandates with the funds that the State provides. I'll talk about the next tiers in a future post.

What is not constitutionally acceptable, I believe, is for the legislature to mandate that all school districts provide a particular level of education to all students, but then to grant some school districts more than adequate funding to meet that objective, while depriving other districts of that same ability by providing insufficient funding.