BIPPS Twists South Dakota School Funding Case

The Bluegrass Institute is at it again.

Self-styled education analyst Richard Innes has now turned to the law. He states in his post "Surprise – Quality Education Isn’t Constitutionally Guaranteed" (with the subtitle, "At least in South Dakota") that a South Dakota judge issued a ruling "concerning a school funding gambit much like the 1989 lawsuit that brought KERA to Kentucky."

In South Dakota, it looks like at least one judge understands the restrictions on what the judiciary can, and cannot tell the legislature to do with tax dollars. It’s a separation of powers issue – one that probably got violated here in Kentucky in 1989.

As is too often the case, Innes got some things right and some things wrong - but still ended up with the conclusion he wanted in the first place. No money for schools.

Separation of powers is an important issue - one that lead attorney Bert Combs took great care to avoid in the 1989 Kentucky case, Rose v Council for Better Education. The court was specifically asked to render a declaratory judgment only - that the educational system was unconstitutional - and did not ask the court to direct the legislature to do anything specific. That's up to the legislature - and that was the key to avoiding what Innes suggests "probably got violated." It never did.

No specific remedy was sought, so the legislature's authority to decide what to do about its unconstitutional school system was never in question. In fact, for a brief time, legislative leaders considered a constitutional struggle by ignoring the court - but soon thought better of it.

The reverse was true in Franklin Circuit Court with Judge Thomas Wingate's 2007 decision in Young v Williams, where the schools went back to court in an adequacy suit and asked for a specific remedy - to require the legislature to raise taxes. They got a summary judgment instead.

The Rose case argued equity and adequacy. The South Dakota case is an adequacy case. Both cases focused on the education language in their respective state constitutions - but the language is different for each state.

Based on the strength of the constitutional language in Kentucky, the Supreme Court declared that education is a fundamental right, that the General Assembly is solely responsible for providing sufficient funding for schools to reach their goals but never said how, or how much.

The South Dakota Constitution requires that the legislature establish and maintain a "general and uniform" system of public schools, adopt all "suitable means" to secure the advantages and opportunities of education, and set up taxes to "secure a thorough and efficient" school system.

The South Dakota judge noted that their state Constitution does not specifically require a "quality" education.

The constitutional language requires an education system that provides students with the opportunity for a free public education that is "adequate to allow students to be responsible and intelligent citizens," the judge said. However, adequacy does not require an education that prepares a student to find meaningful employment or qualify for higher education, the judge wrote. This is what passes for a solid decision at BIPPS.

Then without presenting any evidence of it, Innes proclaims,

South Dakotans are incensed by the million dollar waste this has caused to date.

There is, however, evidence of students going to school in trailers because school districts can't afford to build proper buildings, and the legal challenge is being supported by two-thirds of the state's 161 school districts. Some of those folks are probably incensed.

And of course, in the best scenario, the legislature would sufficiently support its schools as is its constitutional duty, and nobody would have to sue anybody.

In any case, this issue is going to be decided at the Supreme Court level, just like in Kentucky. This is South Dakota's first school funding challenge. Stay tuned.

A half adequate education in Kentucky?

The Prichard Committee recently released a report that looked at funding for education in Kentucky since 1990 and the impact of benefit expenses on the delivery of educational services to students. The study suggests that the rising insurance and benefit costs for school employees have eaten into that funding that might have otherwise gone for programs that directly impact children.

The report authored by Susan Weston and Steve Clements offers a review of major trends in state funding from the earliest implementation of the Kentucky Education Reform Act in fiscal year 1991 through the budget recently enacted for fiscal year 2008.

Susan Perkins Weston, an attorney, is the former executive director of the Kentucky Association of School Councils, now doing some consulting. Stephen Clements is the director of the University of Kentucky's Institute for Educational Research and a faculty member of the Department of Educational Policy Studies and Evaluation.

Weston and Clements note the resurgence of public conversation surrounding the funding of Kentucky’s public schools in recent years; a conversation that had languished for the previous decade and a half.

They also point to the state’s fiscal and budget crises from 2002 to 2005 and its impact on school funding: Cuts to extended school services and textbooks while regional service centers and school rewards were axed.

In 2004, teacher protests forced a special legislative session to commit extra funding to health insurance for state and school district employees.

In 2006, after state revenues had recovered, the General Assembly increased school funding substantially, targeting teacher salaries and adding two days to the calendar.

Their analysis revealed:

• Kentucky took a major step in state support for education efforts from 1990 to 1992.


• Those efforts continued from 1992 to 1996, completing start-up investments and adding funds to ongoing initiatives with limited additional dollars.


• New initiatives and an extra investment in technology were added from 1996 to 2000.


• Funding took a step backward from 2000 to 2004, reflecting overall state fiscal difficulties.


• An important recovery from 2004 to 2008 served mainly to keep up and catch up with growing costs for existing efforts.


• In every period since 1992, inflation and faster-than-inflation growth in benefit costs consumed a major portion of the total increases.

The study focused mainly on state funding since state dollars cover the bulk of P-12 schooling costs and are directly controllable by Kentucky’s lawmakers.

Funding is not the only element needed to provide academic excellence for Kentucky’s children, but it is one essential component deserving of steady attention and wide participation. And it is especially important to know how much of Kentucky’s education-directed resources are being spent on programs to improve student achievement and how much are being consumed by such areas as rising health insurance and benefit costs.

In the end, expanded services need to reach the children who need them, if all are, indeed, going to achieve proficiency.

Weston and Clements chose the metaphor of a half-full glass (or was it half-empty?) to illustrate their view of Kentucky's school funding circumstance. I have tended to think of it as how much gas you have in the tank, because reaching any goal always depends on how far you want to go.

So what is an "adequate" education? Well...that depends, because it changes.

When Kentucky began its system of schools in 1837, a Kentuckian could be considered "educated" with a 4th grade skill set. The goal of the common school movement was free public grammar schools.

The industrial revolution needed more skilled workers, and by 1900, it became obvious that the new goal needed to be a high school education for Kentucky citizens. It took more funding to get there but with the new century came high schools in every county and a "nornal school" in every region. Americans were uncommonly proud of their schools; schools upon which a great democratic society was being built.

Kentucky is at a crossroads once again. The level of education among the workforce needs to be advanced if Kentucky is to continue to prosper. The global imperatives of the information age make the new basic level of education a college degree.

Anything less will be inadequate to keep pace with our competition.

Kentucky must travel the road that leads to more college graduates. But do we have the fuel to get us there?

At the p-12 level, we talk about this in terms of each and every child reaching "proficiency;" which opens the door to a college education for all.

Weston and Clements talk about adequacy this way:

Adequacy

Ultimately, the big question is: do Kentucky schools have the financial resources they need to deliver proficiency for all students?

Proficiency is the short definition of what an “efficient system of common schools,” as explicated by Rose v. Council for Better Education (the 1989 state Supreme Court decision that preceded KERA), should deliver.

Naturally, the question could be broken down into several parts: What efforts are needed to deliver proficiency? Are there special efforts needed for students with unusually intense learning challenges, including those with exceptional disabilities, those with grave poverty challenges and those with limited English?

What will it cost, on an ongoing basis, to deliver that mix of services?

What transitional costs are required to get there, such as added professional development, added or reconfigured facilities, and other help to retool in preparation for using use new approaches? Are the most appropriate mechanisms in place for ensuring that schools and districts make decisions that will most effectively lead to proficiency?

Is that revenue, in fact, being provided?

The Rose Opinion reads, "The system of common schools must be adequately funded to achieve its goals. The system of common schools must be substantially uniform throughout the state. Each child, every child, in this Commonwealth must be provided with an equal opportunity to have an adequate education."

"Proficiency" is indeed a short definition for an efficient system. Among the essential, and minimal, characteristics of an "efficient" system of common schools Chief Justice Robert Stephens included,
1. The establishment, maintenance and funding of common schools in Kentucky is the sole responsibility of the General Assembly.
2. Common schools shall be free to all.
3. Common schools shall be available to all Kentucky children.
4. Common schools shall be substantially uniform throughout the state.
5. Common schools shall provide equal educational opportunities to all Kentucky children, regardless of place of residence or economic circumstances.
6. Common schools shall be monitored by the General Assembly to assure that they are operated with no waste, no duplication, no mismanagement, and with no political influence.
7. The premise for the existence of common schools is that all children in Kentucky have a constitutional right to an adequate education.
8. The General Assembly shall provide funding which is sufficient to provide each child in Kentucky an adequate education.
9. An adequate education is one which has as its goal the development of the seven [enumerated] capacities...

SOUREC: Rose v. Council for Better Education, 790 S. W. 2d 186.

Several 2003 studies found that Kentucky’s 2002 education funding was falling short of needed levels, and a lawsuit brought by the Council for Better Education used those findings and data on student achievement progress to seek new legislative action. In 2007, the Franklin Circuit Court ruled that student progress was rapid enough to preclude a court ruling for more funding— but added that a suit might be proper if progress slowed down.

I find this analysis somewhat incomplete, particularly as regards the separation of powers argument. Franklin County Circuit Court Judge Thomas Wingate said it was not the court's role to dictate to the legislature a specific method for determining whether the schools are being adequately funded. In the Rose case, lead attorney Bert Combs carefully avoided seeking a specific remedy for fear the whole case might fall - as it did in Wingate's court. Instead, Combs sought only a declaratory judgment that left solutions to the legislature.

The CBE leadership chose not to appeal the decision. Whether in or out of court, the
debate on funding sufficient to support adequate education is sure to continue into the future.

Whatever the next steps in the academic debate, adequacy is also an issue for Kentucky’s citizens. However complex it may be to work out what our children need and however strenuous it may be to fund those needs, it is our shared duty to seek understanding and to work together to provide the learning that is right and good for the next generation.

House, Senate negotiators agree on definition of 'adequacy' in New Hampshire

CONCORD, N.H. --House and Senate negotiators [recently] agreed on legislation to define an adequate education.

The bill specifies the subject areas in grades K-12 that all New Hampshire children are entitled to as part of their constitutional right to a public education. These standards are based on existing school approval standards and curriculum frameworks...

...The committee will develop and propose criteria for identifying schools with enhanced needs, and identify and propose any resources those schools may need. It will also review transition assistance for school districts that do not provide public kindergarten in order to enable those school districts to do so.

"The definition clearly identifies the substantive educational programs that constitute an adequate education, including: history, algebra, chemistry, world languages, music, visual arts and literature," Gov. John Lynch said in a statement. "The definition incorporates the high standards for education programs in these areas as set forth in our existing school approval standards. And for the first time, New Hampshire makes clear that all children should have the opportunity to attend kindergarten.

This from the Boston Globe.

Lawsuits lurk over cost of fixing schools

What constitutes and adequate system of schools? This question was recently thrown out of a Kentucky circuit court (Young v. Williams) over a technical issue regarding the separation of powers. So, it's back to the drawing board for Kentucky. But many states have similar actions pending.

In California "lawmakers now have more than 1,000 pages of research documenting loads of problems with the state's schools and estimating how much it would cost to successfully educate every child.

The landmark package of 22 studies released last week by Stanford researchers calls for at least a 40 percent increase in education funding and an overhaul of the way the state governs its schools.

...Lawyers call them "adequacy" suits -- and about 30 states have been slapped with them, said Molly A. Hunter of the National Access Network, a New York advocacy group that tracks litigation over school funding.

"What typically generates a lawsuit is school districts feel like they're not getting enough money from the state ... to do what the state is asking them to do," Hunter said.

And that usually means getting students to meet increasingly rigorous academic standards. Over the past decade, many states have ratcheted up their expectations of schools and students without giving the schools more money -- prompting the wave of adequacy suits."

This from the Sacramento Bee.