Colorado’s Supreme Court Fails to Negate the Negative Factor

For years Colorado policymakers have been between the proverbial rock and a hard place due to amendments added to the state constitution. Indulge me as I offer an overly simplistic summary of these constitutional amendments, presented in chronological order:

Gallagher Amendment – Amended in 1982, the purpose of the Gallagher Amendment was to stabilize mill rates levied on personal property owners. In short, the ratio between tax revenue generated by residential and non-residential properties was frozen in 1982 (the ratio was and still is 45:55 with 45% of all the revenue raised through property tax coming from residential properties and 55% coming from non-residential properties). However, over time, the sheer volume of residential properties and the individual value of each property have significantly increased since 1982. As a result, the taxable portion of residential properties has decreased from 30% in 1982 to 7.96% in 2015 and a greater tax burden is placed on non-residential properties.

The Taxpayer Bill of Rights (TABOR) – TABOR was amended to the state constitution in 1992 and requires that all voters approve proposed tax increases as opposed to allowing elected officials to enact tax hikes. TABOR’s purpose was to starve the beast, or restrict the flow of money to state government. It has been estimated that TABOR and Gallagher, working together, have resulted in an annual loss of $1.5 to $2.2 billion of public education dollars.

Amendment 23 – Amended in 2000, Amendment 23 was designed to ensure that public education in Colorado would always receive an increase to the base funding level equal to the rate of inflation plus 1%. Ironically, when Amendment 23 was added to the state constitution, Colorado was roughly $700 below the national average in per pupil funding. Today, Colorado is over $1,400 below the national average.

These three amendments seemed to peacefully co-exist from 2000 to 2010. However, with the Great Recession of 2008 and its subsequent decline in state revenue, the state legislature discovered in 2010 that it could no longer fund all of the social programs with the existing revenue streams. TABOR presented significant barriers to policymakers passing a tax increase to address the loss of revenues since any tax increase would have to be approved by Colorado voters. As a result, Colorado policymakers were left with one option – cut the state budget.

Amendment 23 proved to be a major obstacle in balancing the budget and ensuring other state obligations were sufficiently funded in 2010. Policymakers analyzed the wording of Amendment 23, which guaranteed an increase in funding for public education of inflation plus 1% to the current base funding level. Base became the focus as elected officials desperately looked for ways to make the state budget work despite the reduction in revenues.

The solution was dubbed the negative factor. The negative factor drew a line of distinction between the base funding and the factors incorporated in the state funding formula. The decision was made to only apply Amendment 23 to the base funding and exclude the factors from the constitutional guarantee of a funding increase of inflation plus 1%. In Colorado there is an identical per-student funding level for all 178 school districts and this figure continues to increase by inflation plus 1% even after the negative factor was instituted in 2010. However, factors that were no longer subject to the increase due to the negative factor included the different weights in the state funding formula for at-risk student populations, cost of living, and size of the school district. In addition, local contributions to a school district were also excluded from the inflation plus 1% increase.

In effect, the negative factor works in the following fashion. The state provides local school districts with full funding in accordance with Amendment 23 and then implements the negative factor, which requires school districts to return a portion of that full funding to the state. Over the years, the negative factor has resulted in over $5 billion dollars being redirected from school districts back to the state. For the current 2015-2016 school year the negative factor will reallocate $855 million dollars.

On September 21 the Colorado Supreme Court handed down a 4-3 decision rejecting a claim contending the negative factor was unconstitutional. The lawsuit, Dwyer v. State of Colorado, sought to end the use of the negative factor and restore public education in Colorado to the perceived proper levels of funding. However, the state supreme court interpreted the wording of Amendment 23 to only require the predetermined increased to the base per pupil funding as opposed to the total per pupil funding. The state supreme court interpreted base in the most restrictive manner possible, thus validating the practice of the negative factor.

This ruling is a disappointment for advocates of public education in Colorado given the fact that the state supreme court also ruled in favor of the state in the recent school finance lawsuit (Lobato). However, I am of the opinion that both Lobato and Dwyer are, ultimately, missing the mark. To illustrate this point I would like to stress that if the state supreme court had ruled that the negative factor was unconstitutional then policymakers would have faced a different dilemma. Instead of underfunding public education, policymakers would have had to cut other aspects of the state budget in order to properly fund public education. In short, there is not a cache of money sitting in some account that state policymakers could access to fund the negative factor. Instead, there is insufficient revenue in Colorado to properly fund all of the social programs throughout the state.

The proper solution for the state of Colorado is to tackle the issue of TABOR and the Gallagher Amendments. These two anti-tax amendments have successfully starved the beast and are now beginning to restrict the state revenue sources to a dangerous point. In public education across the state vital programs are being reduced or eliminated. In addition, class sizes are on the rise throughout the state. Despite all of these cuts, Colorado educators continue to do amazing work in the classroom. However, in order to truly have a “world class” system of education in Colorado policymakers and voters must be willing to add revenue to the state coffers.

Finance Conference RFP Deadline Tomorrow

Just a heads up that the deadline for submissions to the National Education Finance Conference is tomorrow, Jan. 15. The conference this next year is in Louisville, which of course is awesome for me. I've thus proposed a retelling of Bruce Baker and my brief on virtual school finance. 

Anyway, if you are interested in education finance, particularly from a legal perspective, it is can't miss conference. 

Election Results in Colorado

In May 2013 Governor John Hickenlooper signed into law Senate Bill 13-213, which replaced the School Finance Act of 1994 in Colorado and provided the state with a new funding formula. However, due to state constitutional restrictions around tax increases, the bill could not fully take effect until voters approved additional revenues for public education. The author of the bill, Senator Mike Johnston, likened the bill to a brand new car with no gasoline in the tank. You own it but, unless you get the fuel for it, the car will just sit in the garage. The gasoline for the new state funding formula was Amendment 66 – a $950 million proposed tax increase for public education. Colorado voters overwhelming rejected this tax increase (64% of the voters rejected the Amendment). The outcome was extremely disappointing for proponents of public education and have some worried about the end of schools as we know them.

Myron Lieberman wrote a book in 1993 entitled Public Education: An Autopsy. Given the fact that Lieberman’s prediction that public education would die has not come to fruition suggests that this vital entity to the fabric of American society has staying power and value. The temptation to overreact to election results must be tempered. There are countless examples of doomsday-esque predictions regarding the demise of public education, but all, up until now, have proven baseless (computers and the internet will replace teachers, the charter school movement, No Child Left Behind – to mention just a few).

As I have processed the results of Tuesday’s elections, I find my thoughts settling on a small school district in Colorado. This school district placed a sunset on a proposed mill levy override in order to garner the sufficient support for the override to pass. This school district has already gone through one sunset and then approached its voters for a second override, once again with a sunset (it too passed). The voters in this small community value education and value a degree of accountability. I feel like the voters of Colorado were not making a sweeping comment on public education, rather they were collectively expressing reservation with giving such a large amount of money to education. Perhaps they want greater accountability associated with the additional revenues?

There will be additional efforts to fund SB 13-213 and these future efforts (hopefully just effort) must ascertain the collective sentiment of the 64% of voters that rejected Amendment 66 to better meet their needs. Perhaps the tax increases must come with a sunset. Or, perhaps the total dollar amount was the biggest issue.

I see a connection between the election results in Colorado and the government shutdown in October. The connection is the need for collaboration. Regardless of my personal political views, I must realize that I need the other side of the aisle to support my proposed legislation in order for it to pass. The lack of collaboration in politics throughout the nation reminds me of the playground expectation that I get my way or I am going to take my ball and go home. Compromise appears to be a lost art in politics. I am calling for a return to compromise to ensure all views are represented in the formation of a solution. A compromise beats having a brand new car sitting in a garage unable to run due to a lack of gasoline.

Common Core (Predictably) Falling Apart

Politico reports today that Georgia has become the fifth state to withdraw from the Common Core standards project after fully understanding the additional expenses involved in administering the new standardized tests, as well as realizing the enlargment of the federal role in education that will come along with adoption of the Common Core.  Considering that other states are already considering opting out (including Florida, home of former Governor Jeb Bush, a big Common Core supporter), and counting the four states that chose at the beginning not to be part of the Common Core (which included Texas, the great driver of textbook content for the nation), the list is approaching death-spiral territory. 

I predicted this a while ago.  Essentially, the Common Core is "NCLB-light."  Great taste: The standards, from what I can tell, are consistent with the better state standards that exist.  The tests, also from what I can tell, seek to go beyond the overly formulaic and reductionist forms of testing that exist in most states today.  Less filling: But none of this matters.  Why?  Because teaching a more rigorous curriculum is harder, and therefore more expensive.  And testing in more authentic ways is more labor-intensive, both on the test-administration side and on the test-scoring side, and therefore much more expensive.  At present, standards development and test development are funded, but not test administation, scoring, and reporting, let alone teacher training.  And most importantly, no existing state education funding rides on the decision whether to adopt the Common Core or not. 

Putting aside its many, many flaws for a moment, NCLB's main successes (and it was successful in causing many school districts to finally start paying at least some attention to disadvantaged and minority students' test scores) came from the fact that it was enacted mostly as an amendment to Title I, meaning that the failure to adhere to NCLB would (at least theoretically) put at risk federal Title I funding, which is very substantial.  Many states hated NCLB (really, most states hated it), but they went along with it because there were consequences for noncompliance--the potential loss of lots of funding.  Not so with the Common Core, which is supported only by a (relatively small) set of grants, most of which have gone to the testing/textbook companies and their agents which have developed the standards and tests.  It is very easy to see why states are now beginning to say "No thanks."  This is a new set of more rigorous demands on instruction and assessment, decoupled from any real consequences for the states themselves for noncompliance.  I'm actually amazed that more states have not opted out yet. 

Standardization of curriculum and assessment (whether at the state or federal level) requires a coercive mandate.  In federal education legislation, that means coming up with a big enough pile of money to induce the states to act in the way desired in exchange for the money.  Congress is broken today, so I don't see that happening.  Common Core was probably the best that could have been done in this environment, and having a set of well-developed standards at least gives the states something they can adopt, adapt, and draw from, but I doubt it will go much farther than that when the other costs become apparent.   

National Education Finance Conference Deadline

The National Education Finance Conference has just extended their deadline for session proposals until January 31.

I went to this conference two years ago and it was quite enjoyable and the topics were extremely relevant to scholars studying anything impacted by education finance. It is in Indy so it should be driveable for many folks. 

The Consequences of Overpaying University Presidents

Law professors Brian Galle and David Walker have just posted to SSRN (free download) a new article identifying a negative association between non-profit executive pay and donor generosity.  That is, according to their study, as we continue to increase the pay of university presidents, we should expect private gifts to the same universities to decline.  I am familiar at least with Brian's prior work, and his scholarship is top-notch, so I am inclined to take this study seriously, as Boards of Trustees should.  Check it out here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2187979 . 

The Right to Education in South Africa

I had the privilege of being able to travel to South Africa this summer to present a paper at a conference examining education under the South African Constitution, a constitution less than 20 years old at the moment.  To illustrate the "youth" of the constitution: while there, I had the opportunity to meet and dialogue with one of the "Framers," Justice Albie Sachs.  It was surreal to be able to do so after studying American constitutional law for a number of years. 

I will discuss a few features of the South African Constitution's approach to education in some upcoming posts, but I thought I would begin with the most basic difference between education as a constitutional matter in South Africa and education as a constitutional matter in the United States: education in South Africa is an explicit, individual constitutional right.  Section 29 of the South African Constitution's Bill of Rights declares that "Everyone has the right--to a basic education, including adult basic education; and to further education, which the state, through reasonable measures, must make progressively available and accessible."  The United States Constitution contains no language even hinting at such a right, and the American state constitutions--from which the voluminous case law on school finance and ostensible "education rights" emanates--are also devoid of such language (with the notable exception of the North Carolina Consitution). 

Yet, there are growing calls for the South African Constitutional Court to look to American school finance litigation in interpreting the education rights found in that country's constitution. My most recent article argues that the approach should be more nuanced, recognizing that (1) American school finance cases have never really enforced anything like an individual right to education, despite a good deal of rhetoric to the contrary; (2) the South African Constiution's "basic" education right is clearly an immediate, individual entitlement, and should be enforced as such, even through individually tailored remedies; and (3) the South African Constitution's "further" education right is much more legislative duty than individual right, and it therefore can be enforced similarly to the education clauses in American state constitutions. 

That said, my view is that American state supreme courts have been going about enforcing their own education clauses in precisely the wrong way, ignoring the fiduciary nature of the legislature's duty to provide for education.  Thus, I urge that the courts in both countries step back from their rights-based rhetoric and consider what it means to enforce a duty that does not correlate to the personal claim-right of any individual.  Check it out here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2142221 .

Washington's School Finance Decision

Last month, the Washington Supreme Court issued its decision in McCleary v. State, --- P.3d ----, 2012 WL 19676, Case No. 84362-7 (Wash. 2012), the culmination of three decades of litigation, legislation, and more litigation over the state’s school funding system.  The Court struck down the state financing system, but stepped back from ordering the state legislature to take any specific legislative action to fix the system.  The Court exercised such restraint for two reasons.  First, like other courts in similar situations, the Washington Court recognized the troubling separation of powers implications of a direct, injunctive remedial order against the legislature to enact legislation.  Second, the Court considered 2009 legislation that had been passed since the suit began and held that, if fully funded, the system laid out by this legislation would pass constitutional muster.  The Court retained jurisdiction over the case, apparently to see that the legislation in question would be fully funded in the coming years. 

I have said before in my scholarship that Washington’s Supreme Court is one of the more interesting in the country in the area of school finance because, rather than issuing under-theorized accounts of rights to education as other state courts have, Washington’s Court, in its initial school finance decision (Seattle School District No. 1 v. State, 90 Wash. 2d 476, 585 P.2d 71 (Wash. 1978)), carefully derived from the education duty provision in its state constitution a correlative individual right to an education held by each Washington resident child.  In McCleary, the Court reaffirmed this holding from Seattle and used it as the justification for stringent judicial review of the legislature’s past actions, particularly its actions in cutting expenditures on certain budgetary items and forcing these expenditures to be funded through less-reliable local sources.  A few general principles emerge from the decision:

First, the Court developed a way to review budgetary cuts for their rationality that is, I think, either new or newly explicit among school finance cases.  The Court explained that, where the legislature cuts part of the education budget, it may not justify such a cut based on lack of funds availability alone (clearly a garden-variety rational basis that would justify cuts to any other budget item).  Rather, the legislature must justify all cuts to the education budget with education-related reasons, in effect adopting some of Helen Hershkoff’s earlier proposed metrics for constitutional review of affirmative rights.  The upshot of this innovation is that something more than a rational basis is required.  The required standard seems to be more of a “rational direction” test—Is the cut or expenditure decision rationally directed at the constitutionally prescribed goal (“ample support” for education, in Washington’s case)? 

Second, the Court reversed the lower court’s order that the legislature commission a study of the true cost of providing an adequate education, a familiar, almost pro forma remedy that every school finance plaintiff group seeks these days.  In my view, this was a very sound reversal.  The legislature, in the preceding years, had commissioned several such studies, each at a cost of over 1 million dollars.  The problem was not the state’s failure to determine what a “basic education” costs, but the failure to fund it fully once determined. 

Third, the Court's decision revealed that evidence of inequality is far more important to judges in adequacy cases than evidence of the overall quality of the system, especially in the form of test scores and other outputs (echoing portions of recent work by James Ryan).  Although the Court defined the basic content of a sufficient education by referencing the state content standards, the chief problem the Court saw with the legislature's existing program was that localities were required (with varying levels of effort based on local property wealth) to fund large portions of the achievement of the stated standards.  That's an equity analysis, not an adequacy analysis. 

These are what I view to be the positive developments in the case, but there were also a couple of negative—or at least disappointing—trends that generally exist in the school finance cases that were adopted and continued in this case.  First, the Court engaged and adopted its prior holding that the education duty set forth in the state constitution is a duty that falls equally on all branches of state government.  Courts around the country have seized on non-specific language in their education articles to justify judicial review of legislative policy priority weighing by holding similarly.  Simply put, if the duty rests on all three branches, then no branch deserves any deference, especially not total deference.  But this makes absolutely no sense in practice.  A duty, to be meaningful, must be enforceable.  Given that principle, what if some group of residents is unsatisfied with the Court’s resolution of this matter?  Since the duty rests equally on the Court’s shoulders, may that group now sue the Court for violating the duty?  Will the Court be the ultimate judge in this case?  I think it is preferable for courts to justify judicial reveiw without confusing the governmental actor that bears the burden of an affirmative constitutional duty. 

Second, although the Washington Court did an admirable job in Seattle of using the scholarship of Wesley Newcomb Hohfeld to derive a defensible conception of an individual positive right to education from the affirmative duty set forth in the state constitution, it approached the McCreary case without any regard to individual harm whatsoever.  In short, individual rights were meaningless—other than rhetorically—in the decision process.  I continue to believe that recognizing individual rights, but failing to consider individual harms and individual remedies, does violence to the idea of rights in general. 

There’s lots more to say about this important decision, but these are my first impressions.  I welcome comments, corrections, addenda, etc. 

New Texas School Finance Case

I don't have access to the court documents yet, so I can't give a full analysis at this time, but a coalition of plaintiffs has filed a new school finance challenge in Texas.  Details here. 

A couple of initial points based on the linked story.  First, this is not a part of the longstanding Edgewood v. Kirby litigation, the last iteration of which was decided by the Texas Supreme Court in 2005.  It is a new case.  Second, it is difficult to be sure from the summary, but the claims appear to be based more on "equity" theories than on "adequacy" theories, though there is a nod to adequacy at the end of the story. 

Any readers with more specific information are invited to comment. 

State Court Funding Symposium

I want to announce to our readers an upcoming event at the Universiy of Kentucky College of Law that has implications for education law.  The event, jointly sponsored by the Kentucky Law Journal, the American Bar Association, and the Center for State Courts, is a symposium on the funding of state courts, many of which are currently in what can best be described as a resource crisis.  Here is a link to the schedule of events on September 23-24, which include Keynote addresses by both Dean Erwin Chemerinsky of the UC-Irvine School of Law and current ABA President (and UK Law grad) Bill Robinson. 

Now, what does this have to do with education law?  Well, two major things.  First, as with almost all categories of law, the majority of education related disputes are resolved in state judicial systems.  A funding crisis in those systems will inevitably lead to a crisis in educational dispute resolution.  Second, as many of you know, to the extent that "education rights" exist in our system, these rights are primarily state constitutional rights.  Where state judicial systems are hampered, the development of these rights is also hampered.  The issue of state court funding is therefore a vital one for those interested in education policy and law. 

I encourage anyone with an interest in these issues of access to justice (and the ability to be in beautiful Lexington, KY this Friday and Saturday) to attend the symposium. 

The South Dakota School Finance Decision

My blogging haitus is nearly at an end.  For now, I offer a couple of quick thoughts about the recent South Dakota Supreme Court decision rejecting an adequacy-based challenge to the state's school financing system.

First, the state defendant won this one on the merits, based on the evidence (particularly, the lack of evidence of causation--more on that below).  This, I think, is the first adequacy case of which this can be said.  The recent state victories in Indiana and Missouri were not truly of the same character, both being based on a general approach to judicial deference bordering on the political question doctrine.  The recent Oregon decision, also a state merits victory, was based on a quirky textual feature of the Oregon Constitution that does not exist in any other.  The South Dakota decision, while deferential to legislative policy choices (especially in stating the standard for proving unconstitutionality as "beyond a reasonable doubt"), is based on a much deeper review of the evidence. 

Second, and relatedly, the opinion is very well-reasoned and fair in its explanation (I, of course, take no position as to whether the court is representing the state of the record evidence properly, as I was not involved in the trial and have no access to the record on appeal).  It takes the arguments of both the state and the plaintiffs very seriously, and is does not appear to place any kind of thumb on the evidentiary scale for either party.  This approach is not necessarily new, but this is one of very few school finance decisions on the merits where a state supreme court has gone out of its way to show the readers of its opinion that both sides indeed presented good arguments.  I think that goes a long way toward fostering the opinion's perceived legitimacy. 

Finally, and most importantly, the South Dakota decision is also the first that has required the plaintiffs to establish a causal link between the many educational deficiencies that they were able to establish in the evidence and the action or inaction of the state government.  As perennial state-side litigator Al Lindseth has pointed out both in scholarship and in court, in adequacy cases in which plaintiffs prevail, there is little to no discussion of causation.  This South Dakota decision hinges almost completely on the insufficiency of evidence of causation.  This feature could make the South Dakota decision a very impactful one. 

I look forward to seeing how this opinion works its way into the scholarship. 

Knowledge of the Business of Higher Education ... And Our Lack Thereof

Why do we not teach future faculty members anything about the business of higher education before we put them into the teaching jobs? It is an enormous deficiency in our knowledge base and I think it has real, negative effects on the institutions that hire us. 

I just wish I knew a lot more about running a higher education business than I do. I feel I basically have to learn all of that on the fly, and (honestly) sometimes I am making mistakes. 

For instance, recruiting and marketing. Increasingly, departments (especially mine) are having to do most of our own recruiting and marketing. I know little to nothing about these things, but they are vital to the health and prosperity of our department. To be honest, I wish I knew a little less about John Dewey and a little more about this. 

And, I think the implications are that many departments and programs are struggling with the actual business of running these places - leading to institutional weakness. I think this is particularly acute in the Research Universities that tend to hire folks like me ... relatively young, newly hooded, naive, inexperienced greenhorns. Don't get me wrong, some of these greenhorns have remarkable ideas -- and, perhaps, some of us will cure cancer or something (or help lead a technology revolution in our education systems ;). But, to do that, we need functional and economically healthy departments within which to work. Regional and private universities tend to hire a greater percentage of second-career professors. Presumably, these folks learned the business of something in their first career, and are capable of adapting some of these ideas. There is still a tremendous knowledge gap for these folks, and an ever greater knowledge gap on the research front, but purely from a business standpoint, they seem to have a bit of a leg-up. 

Across te board though, it seems at least to me, that more and more of that "economically healthy" work is falling to new professors. So, perhaps we should think about some formal attempt to prep them for these roles? 

I don't know. Just a thought on a late Sunday night to interrupt my grading.  

"Abbott XXI" and the State Constitutional End Game

The New Jersey Supreme Court has just issued what is, under my best count, its twenty-first opinion in the ongoing school finance litigation, Abbott v. Burke.  The total opinion (including the majority and separate opinions) is 215 pages, so an analysis will be forthcoming, but not today. 

Essentially, though, this is a remedial opinion reaffirming that the court meant what it said in its last remedial opinion about the levels of funding required in the target districts, meaning that the state legislature's recent deep cuts to education spending are violative of the state constitution.  The opinion ends with the court ordering the appropriation of an additional $500 million to the "Abbott districts" (the property-poor districts at the center of the suit in its current posture). 

I think this opinion is likely to hasten the constitutional confrontation that has been inevitable in New Jersey since the beginning of this 20-year saga.  The court here is nearing a constitutional "end game," where the elected legislators know that they will lose their jobs if they raise taxes to preserve school funding, but the court is basically trapped into demanding exactly that action based on its prior rulings.  If neither side blinks, then what?  Jailing individual legislators for contempt of court if they vote the wrong way? 

Local Control Cuts Both Ways

Last week, the Georgia Supreme Court struck down that state's "Commission Charter Schools" statute, which allowed the state Legislature to directly establish charter schools in districts where the voters had consistently rejected establishing them locally.  Whatever your views on the merits of charter schools, this decision is of note from a state constitutional law perspective for the way in which it elevates the governmental interest (or shibboleth, depending on your perspective) of "local control" to a constitutional compulsion. 

In striking down the charter school law, the court's 4-3 majority explained that local school boards in Georgia have "exclusive local control" of their districts' operations, including what schools shall be established.  The sole exception to this principle, the court explained, is found in the state constitution's "special schools" provision, which authorizes the state legislature to establish special schools "in such areas that may require them," subject to certain provisos limiting boded indebtedness to pay for such schools.  (For a copy of the current Georgia Constitution, see here.  The education article is Article VIII, and the relevant Section is Section V, beginning on page 60 of the pdf link).

The court held that the state's establishment of three charter schools of the typical, familiar variety (save one that limited enrollment to female students only) violated this principle of local control, and therefore the statute authorizing the schools was unconstitutional.  Facially so, in fact. 

We all are familiar with the fact that "local control" plays prominently as a governmental interest in helping governments to justify socioeconomic discrimination and pass the "rational basis" test under equal protection jurisprudence, but this opinion appears to see "local control" not as a legitimate interest that the state legislature may permissibly pursue, but rather as a constutionally required limitation on state legislation in education.  Local control has now evolved in Georgia to a requirement.     

However, from a school finance litigation perspective, the REALLY interesting bit of the opinion is this little gem:

"The constitutional history of Georgia could not be more clear that, as to general K-12 public education, local boards of education have the exclusive authority to fulfill one of the "primary obligation[s] of the State of Georgia," namely, "[t]he provision of an adequate public education for the citizens." Art. VIII, Sec. I, Par. I." (p. 3 of the slip opinion). 

I'm particularly intrerested in the implications of this quote.  If accepted as an operative holding in the court's opinion, it seems to mean that no suit for educational inadequacy may lie against the legislature or any other state-level entity in Georgia.  If one's right to "adequate education" (assuming such a right exists in Georgia) is violated, then it is the school district that is at fault, not the state.  This conclusion would turn education finance litigation as currently conceived on its head. 

Even if you are not interested in these issues of state constitutional interpretation, the opinion, which contains a lengthy and well-reasoned dissent, is well worth a read. 

So, Now the Door is Wide Open! Arizona's Tax Benefit for Religious Schools

So, in probably at least half of the U.S. state legislatures today, a legislative aide got busy writing up a private school tuition tax credit program. While these programs might or might not be constitutionally legal ... it doesn't really matter as they are not subject to review by the Courts (for all intents and purposes). But, worse, next week that same legislative aide is going to sit down with a cup of coffee and ponder all the ways in which tax credits can be used to circumvent the Constitution (at least the Supreme Court's historical interpretation thereof ... hello Abortion!). 

Today the Supreme Court created, for lack of a better term, a Constitutional loophole.  

In a 5-4 decision, the Supreme Court denied standing to Arizona taxpayers seeking to challenge the tuition tax credit program which mainly benefits religious schools. Mark Walsh, as always, rocks the details. Taxpayer standing, which is always a complex issue, is not generally permitted for challenges to governmental spending. There must be a more substantial harm than just disagreement with how the government is spending your tax dollars (or in this case, the tax dollars of those choosing to provide the scholarships and thus receive the credit). One harm articulated in the past has been First Amendment violations, but the Court in this case explicitly exempted tax credit programs from such review. 

Okay, to the analysis ...

First, I got to give props to the designers of this legislation in Arizona. At this point, you can argue a lot of things about this legislation, but you can't argue the creativity and genius of the program's design. It has withstood multiple challenges and has now been functioning for over a decade. Even if it does eventually fall, the legislation's authors have more than proved their worth. 

Second, let me just be honest, I really dislike this law. It is a back-door policy to get public money into private schools. Arizona tried other routes toward that end in the past, and fundamentally it is hard for me to see this any differently. This is just a very, very cleverly constructed voucher program that takes advantage of a constitutional loophole in that it moves the money into private schools before it is even officially in the government's possession. Thus, instead of calling it a voucher, it can be called a tuition tax credit. But, rest assured, the intention of the law is not that far removed from the intention of the voucher law. I don't think most reasonable people would even argue that point. 

Third, here is Scott's post at oral argument. While he got the prediction wrong, the issue is right on point.

Fourth, Bruce Baker asks ... so, who can sue? Well, short answer, no one. The long answer is not much different, either. Individual suits against individual harms are still permitted (such as suits against the private schools for violating constitutional rights). Plus, as Scott pointed out in a phone call, state constitutional claims may still be a viable (and better) angle. While the Arizona Supreme Court has already blocked this angle, it would still have to be litigated in other states - and other states have more restrictive state aid to private school provisions. Now, just me personally, I feel there might be some claim available by a private school against the program, if the private school (think Montessori) were denied authorization under the program and some religious schools were not. If, for instance, Arizona just approves a whole diocese worth of Catholic schools and there is no similar option for an individual private school, there might be a claim that could get to the Establishment issue, but, even then, the remedy would not be striking down the whole program but just approving the challenging school.

Thus, as Scott pointed out on the phone tonight "it would take impossibility after impossibility after impossibility" to get a viable, justiciable, individual harm from which to challenge the entirety of the program under the Establishment Clause.

So, there we have it. If you want a more complex legal analysis of the taxpayer standing and Flast exception issue, some law professors will go there with you (2) (3) (just search Google Blogs).

What this means for schools? In the near term, not that much. Arizona was a test case and it will take several years for these to populate around the country. Over the longer term, I'm sure we'll see some more of these policies across the states, but I don't think schools will really feel too much of the pinch because their appropriations per student are unlikely to change that much. It might convince a few more students to attend private school than would have otherwise, but I sort of doubt it will create a flood of students leaving the public schools. It will keep per pupil allocations perhaps a little lower than they otherwise would have been, but since the school never had those dollars in the first place, I doubt they will miss it that much.

But, from a legal standpoint, it was an important day as the Court solidified a pretty gaping Constitutional loophole. That's my greater concern. What new ways will legislatures will use this loophole to circumvent the Constitution? ... Well, we are going to find out, it seems.  

Update: Scott sent over this blog post by Chris Lund, which thinks the credit exemption is quite a bit narrower than most are reading it. It is worth considering. Especially since it is coming from Kennedy ... who likes to draw such almost incomprehensibly fine distinctions (see Parents Involved). 

Remedial Abstention as a State Constitutional Requirement

Here's a new one.  The Kansas Legislature has passed out of a House committee a proposed amendment to the state constitution barring the Kansas courts from issuing remedial orders to increase school spending.  The local paper's story is here.  This action is purportedly in response to the 2005 Montoy v. State ruling that held the state's school finance system unconstitutional and ordered increases in expenditures. 

I am often skeptical that school finance remedial orders will be effective, mostly because I believe that, at a certain point, most legislatures will simply choose not to comply (or enough legislators will simply not vote to increase funding), and no state grants its Supreme Court the power to hold individual legislators in contempt for failing to vote a particular way.  But I have to confess that I never expected a state legislature to go on the offensive like this. 

Essentially, if passed and ratified, this provision would take the relatively prudential determination of whether to order a coercive judicial remedy after identifying a constitutional violation, and decide it for the court.  I have argued in the past that courts which hold a state constitution to be violated, but choose not to issue remedial orders, engage in an illegitimate form of "remedial abstention," which leaves plaintiffs whose rights have ostensibly been violated with no redress.  In an upcoming paper, I argue that this has the effect of devaluing any "education rights" that the plaintiffs possess.  The Kansas provision, if passed and ratified, makes that outcome much more likely.  

Education (again) is the Flashpoint

For some reason, this is our curse. We are the flashpoint for many, many important national confrontations. 

The most notable is Brown v. Board, but through the years education has consistently bore the burden of these national confrontations. Evolution (Scopes & Kitzmiller), government regulation of speech (Tinker & Pickering), Affirmative Action (Bakke, Grutter, etc.), the Pledge of Allegiance (Newdow), Disabilities (IDEA), Poverty (Title I) and on and on. 

It now seems we are tasked with this role once again. This time it is increasingly looking as though the national debate between the Obama movement and the Teaparty movement might center on schools. In his recent budget release, President Obama called for increased federal spending on education. In their response, the U.S. House (pressured by the Teaparty movement) called for 5 billion in cuts. As Education Week reported: 

“We’re clearly headed to some kind of showdown,” said Joel Packer, a veteran education lobbyist who now works for the Washington-based Raben Group, where he represents the Committee for Education Funding, a lobbying coalition. The Obama administration’s fiscal year 2012 spending plan seeks to raise funding for the U.S. Department of Education by more than 4 percent, he noted.

“House Republicans and the administration are moving in exact opposite directions. These are not just minor differences,” Mr. Packer said. “They’re radically different visions of what the federal role in education should be.”

I pray that this fight does not put education in the middle. The initial fight seemed to center around healthcare, but on that front the Obama administration has already won. On education, the movements are currently on equal footing. And so, once again, it is increasingly looking as if education will be the flashpoint. 

It is quite the burden to ask our children to bear, but, as before, I'm sure they will prove their shoulders are broad enough to facilitate our future. However, we adults should know better than to ask our children to pay this price for us. Let us fight over Social Security. Let us fight over healthcare. Let us fight over taxes. Let us fight over defense. Let us fight between ourselves. But, history tells us ... we won't. It is our children's burden to bear. God forgive us. 

Trial Court Decision in California School Finance Case

Last Spring, I reported here that a new school finance suit had been filed in California.  The suit, styled Robles-Wong v. California, presented claims founded both on inadequacy of spending systemwide and inequality of educational opportunity among California districts.  A little over a week ago, the trial court hearing the suit issued its ruling on the state's demurrer (what California calls a motion to dismiss the complaint--H/T, Silicon Valley Education Foundation for both the alert and the pdf of the court's ruling). 

The decision tracks the recent trend that I and others have identified of state courts shying away from deciding systemic educational adequacy claims.  The court dismissed the adequacy-based claims with prejudice, holding that the California Constitution does not require any particular quantity of spending.  Although the court forcefully rejected the state's non-justiciability argument, this dismissal effectively has the same effect as a dismissal for non-justiciability.  If sustained on appeal, it would mean that one cannot state a claim for educational inadequacy under the California Constitution. 

However, the court did recognize that, under the canonical Serrano v. Priest decisions, one may state an individual claim for inequality of educational opportunity, typically as a class action brought by students in a resource-deprived district.  The court dismissed the equality claims presented in the plaintiffs' complaint, which did not contain allegations of individual harm, but also granted the plaintiffs leave to amend to sharpen up their allegations.  Thus, the case is still alive, but has been trimmed down substantially (for now). 

It remains to be seen what the California appellate courts will do with the trial court's dismissals.  As I stated a few months back, watch this one--it could be a very significant decision when all is said and done. 

Translating University Technology into Cold Hard Cash - A Good Idea?

The Post-Dispatch had a great story today on how universities are increasingly commercializing the technological developments of their researchers. They do so largely through patenting and licensing. This activity, especially in the medical world, can generate substantial amounts of money. According to the Association of University Technology Managers (with 3500 members), this specific licensing activity adds up to around 2 billion dollars each year.

Two billion may sound like a lot of money, but it is isn't, actually. It is just scratching the surface of what universities spend on research. This concept of university licensing of developed technologies is a relatively new one. Universities were first granted this power only 30 years ago and really only begun to use it in the last decade or so. In fact, from my experience with the patent office here at UK, my university is only really patenting (and thus seeking licensing fees) from the really big projects. A potential return analysis is conducted and if the return looks less than a few hundred thousand dollars or so (minimally), the university doesn't even bother with the patent.

What I am saying is, that 2 billion is only catching the upper end of the curve and missing nearly all of the long tail. For instance, I would venture that very, very few innovations from Colleges of Education are being patented, even though new commercial innovations are being generated. Those innovations are either privatized by the researcher (making private profit), or just released to the public for free. For example, (I'm not going to release details of the innovations we are working on at UK, as they are not yet market ready) this researcher at Indiana University's College of Ed. developed this product, but just turned it into a private corporation and pocketed the money.

So, what do we think of all this? Can the traditional service concept of universities co-exist with the concept of commercialization? The very kind of big picture, big impact innovations that could change a state like Kentucky are the ones being put behind the patent wall and only those with existing cash get to play. Seems a bit counter-intuitive. But, on the other hand, as Legislatures continue to reduce university funding, these types of revenue streams keep the innovations coming.

I'm very mixed on all of this, but these commercialization concepts are very rapidly invading my and other university researchers lives. And, my P-12 readers, your next.    

Educational Adequacy and Fiscal Reality

Two recent developments highlight what I think portends lots of coming chaos in school finance.  The first is a suit filed by parents in a middle-class Kansas school distict challenging the state's limits on local property tax millage rates (enacted in response to Kansas's numerous school finance cases).  The parents allege that their First Amendment right to direct the education of their children is infringed by the caps.  They also allege that their Fourteenth Amendment rights to control their own property and the uses to which it is put are infringed.  This is a novel claim, but it illustrates very clearly the conflicts that judicial rulings on systemic equality of educational resources create--simply put, these equalities cannot be achieved without limiting local control, and if these parents are correct, there are federal constitutional interests in local control of educational expenditures.  The parents have Harvard Law Professor Lawrence Tribe on their side, so this is not just a shot in the dark. 

The other development is the re-opening, once again, of the Abbott v. Burke case in New Jersey.  This time, the plaintiffs challenge the $800-plus million in budget cuts that the Christie Administration has directed at the NJ schools to help close an $11 billion dollar budget gap resulting from the recent economic times.  The most recent prior action of the New Jersey Supreme Court (the most activist court in the nation on school finance) was to grudgingly approve the latest set of funding levels (enacted before Governor Christie was elected), on the explicit assumption that these levels would not be reduced.  Now that the funding levels have been reduced, it is likely that the court will once again find its way into the case.  By my count, if the new set of hearings results in a written decision, this will be the 21st New Jersey Supreme Court opinion in the Abbott case.  Pretty remarkable. 

The question now is what will happen as a result.  If the courts in both cases rule for the plaintiffs, will the political branches comply?  In Kansas, this would seem to be easy, as the legislature can just remove the caps from the plaintiff district, but the suit in Kansas did not open up the prior Kansas Supreme Court decision--it is an independent challenge to the legislation based on federal constitutional rights, so the Kansas legislature may be faced with an equality mandate from its own supreme court and simultaneously an order forbidding the application of its equality legislation from the federal courts.  In New Jersey, it's hard to see this being resolved without a constitutional confrontation, unless the court completely capitulates to the Governor's arguments that the state just doesn't have the money.  The really scary thing is that, considering the coming end to the ARRA and its federal subsidies of state education systems, these two cases are likely only the tip of the iceberg.