Should an Educational Leader's Testimonial Speech be Protected?

Imagine that you are an educational leader hired to head up an important community college program for at-risk youth.  In your first days on the job, you do what any good leader does and audit the books.  Through this review, you discover that you have an employee who is drawing a large salary from the program, but is not doing much, if any, work.  You do some further digging, and you realize that this "employee" with the "no-show" job is also a sitting state legislator.  You care about your fiduciary duty over the public money you've been entrusted, so you confront the no-show employee and request that she begin showing up and working.  She not only refuses, but also threatens your livelihood.  You are not a coward, so you fire her.  Not only that, but when subpoenaed, you testify truthfully against her in her criminal trial once the feds discover her fraud.  Soon after, you are fired. 

You file suit against your former employer to challenge your termination as retaliation for your speech as a citizen on a matter of public concern.  But the District Court, and later the Circuit Court of Appeals, reject your challenge, citing the Suprme Court's recent decision in Garcetti v. Ceballos.  In Garcetti, the Court held that, "when public employees speak pursuant to their official duties, they do not speak as citizens, and the First Amendment does not shield their communications from employer discipline."  Essentially, speech that a public employee is hired to make is not that employee's own speech, but his work product, and may therefore be the basis of employer discipline.  The Circuit Court cites Garcetti and reasons that, because you testified only about matters you learned about at work, your testimonial speech "owe[d] its existence" to your employment, and was therefore made "pursuant to [your] official duties."  Notwithstanding the Garcetti rule, the Circuit Court proclaims that it is immaterial that your job does not require you to testify in judicial proceedings, as long as your testimony is about your job. 

Should this judicial sleight-of-hand resulting in an unbelievably expansive reading of the Garcetti exemption be allowed to stand?  In Lane v. Franks, the Court will consider the question on alleged facts similar to those in the vignette above.  Along with Professors Paul Secunda and Sheldon Nahmod, and on behalf of more than 60 other law professors, I have written an amicus brief (free download) arguing for the reversal of the 11th Circuit's flawed reading of Garcetti.  The case will be argued on April 28th, and it could have major implications for public employees--including educational employees--nationwide. 

New Education Law Blog

It is not that often that I get to announce a GREAT new outlet for education law news and resources, but today I do in the form of the Education Law Prof Blog. The blog is part of the Law Prof Blog network and is written primarily by Derek Black of the University of South Carolina Law School and LaJuana Davis of Samford University with occassional posts by Areto Imoukhuede of Nova Southeastern Law School. You absolutely must add it to your readers (and, remember, Google Reader is going away soon, so please switch to Feedly). 

I feel like this blog was the exact blog that I expected to exist way back in 2004 when I first searched googled "education law blog" and found nothing (and this started this one). I am glad that we finally have a presence at that law professor level (besides with this blog) and I hope that education law continues to be taken more seriously by those in the legal academy. 

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 .

Back in Black (and Orange)

I have been off the blogging field for several months now while traveling to South Africa, and then working as a visiting professor at Mercer University School of Law (school colors: orange and black).  I am happy to be back now, particularly at this exciting time for the blog in light of our new partnership with ELA.  In the coming weeks, I have many thoughts to share comparing the legal frameworks under which academic employees and students do their work in different countries, and in different sorts of institutions within this country. 

To start, I want to engage a premise that I heard repeated more than a few times at the recent ELA annual conference.  The premise is that the United States "needs" for-profit higher educational institutions in order to fulfill the policy goals we have adopted as a nation.  These policy goals vary depending on who states the foregoing premise, but they seem to boil down most often to getting as many people through college and out the other side as possible, and presumably doing so for as little money as possible.

My question is, am I accurately stating the premise that I heard stated at ELA?  I have to confess that this premise seems to me to be implausible on its face, given the well-recognized tendency of for-profit higher educational institutions to provide less service (measured in terms of completion rates, employment outcomes, and student loan default rates) for greater cost than public and non-profit private institutions.  Am I missing something?  Should we be enabling this sector of the higher education world? If so, why? 

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. 

Attorney General Opinions for Education

So, tonight is my first real deep foray into the usefulness of Attorney General opinions in educational settings ... and, I am really impressed by them. Any lawyer coming out of law school should at least be aware of attorney general opinions as an element of the legal system, but I do not think everyone is aware of exactly what kind of role those opinions can have. Certainly, I can say that I did not. 

But, after sitting tonight and reading about 30 historical opinions on the Kentucky Education Reform Act, I have to say how superbly useful they were to the implementation of that law, especially in relationship to Kentucky's School Based Decision Making Counsels. 

Anyway, consider using an Attorney General's opinion in the future in your state if you have a complex legal question that is unclear in statutory or regulatory language. 

Diffusing the NCLB Bomb: A Final Conservative Federal Education Expansion

Today was inevitable, really. And, everyone knew it. Washington's plan was simply untenable. It could never work the way it was written. 

(No, not referring to the debt crisis and downgrade and, well, the plunge today (don't get me started, just go here, please)).  

Everyone knew NCLB's accountability provisions were a ticking bomb. They were never going to work. While some speculated that the bomb was intentional to blow-up public schools in favor of private and other options, that there was a hidden bomb in NCLB was unquestioned by even those with cursory knowledge of the law. 

Lately states, such as mine, were getting tired of the inevitable countdown to 0 (as in the total number of passing schools on the accountability indexes). The grumbles were growing louder, yet nothing happened in Washington (they were too busy messing with our credit score). In reality, there was never so much as serious talk of a NCLB reauthorization timetable. Reauthorization may still be two or more years away and by then the bomb might actually explode. 

So, today, the U.S. Department of Education took a big step. A unilaterial step. Perhaps an unauthorized step. Relevant quote:

The administration’s plan amounts to the most sweeping use of executive authority to rewrite federal education law since Washington expanded its involvement in education in the 1960s. 

This is a complicated issue, so please don't think we are going to cover it all in this blog post. But, there are a few critical factors worth explaining:

1. This limits the role of the federal government. States, like Kentucky, will probably get to write their own accountability systems again. This brings the federal role more in line with the Tenth Amendment and the general concept of federalism in education. 

2. This expands the role of the federal government. Yes, contradictory I know. Even though an individual state will get to write their own plans, the federal government has sign-off authority. As was shown with Race-to-the-Top, the Feds are not above using that kind of authority for coercion. Already in their public statements on this change, it is very clear that this will be a coercion mechanism to get the kind of reform Washington wants. Coercing states is more in line with the spending power of the Constitution, but much less in line with the Tenth Amendment.  

3. The biggest expansion of the day, though, was of the power of the U.S. Department of Education. They are now front and center for education reform in this country. Many would argue (probably including me) that this is not their place not only under the Tenth Amendment, but also under generally understood principles of administrative law authorized by Article II (today was a possible infringement on Article I (ultimately, Article III might have to resolve this ... confusing enough for you?)). 

What does all this mean? I don't know. The federal role in education is probably expanding, but it is doing it through the back door. As such, few people are really noticing and those that do have few options because they are already in the house. Federal expansion is a bit of a bell that cannot be unrung. That the federal role is expanding ... is likely inevitable. Today was just a different route toward doing so that positioned the Department of Education (and not Congress, nor the States) as the central accountability mechanism for education in the United States. 

That they expanded today by actually helping states diffuse the bomb ... was creative and interesting. Because of that, a serious constitutional challenge might be avoided. In the next few weeks, we will likely see bills filed in Congress and new committee hearings and some pomp and circumstance against this - but, I would be surprised if this plan is not implemented and that this is not the framework for a reauthorization, whoever gets elected president next time. 

So, today the NCLB Bomb was largely diffused. Good. It needed to be. But, in doing so, the federal government's role was expanded once again. A final, ironic chapter in the conservatively sponsored NCLB Act.

The Federal Role in Education ... Totally Confused

Can anyone make sense of this? The whole thing is a disaster. It feels like the Heritage Foundation is not even trying to be remotely accurate. 

Anyway, for what it's worth, here you go: Federalism in Education Made Simple

"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. 

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.  

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. 

"Highly Qualified School Board Members:" Raising the Entry Qualifications

News out of Colorado today has a school board member bringing his gun to school board meetings because of his fear of retaliation over comments he made on his radio show. His comments were to the effect of denigrating and downright insulting Martin Luther King, Jr. The school board member is, apparently, an openly white supremacist and broadcasts his ideas over the radio and internet. In response to his "ideas," he has allegedly received death threats. 

In light of the recent school board shooting in Florida and still within the context of events during the previous week in Tucson, this board member feels the best idea is just to bring his gun with him to the school board meeting in case he needs to engage in a shoot-out, wild-west style, I guess. 

Aside from this obvious craziness, how do we get rid of folks like this, legally? The Colorado Constitution (Art. 9, Sec. 15), as well as many other states, require there to be a local board of education, so doing away with the whole thing is out of the question barring a constitutional amendment or convention. Further, attempting to impeach (for lack of a better word) a school board member would be procedurally complex and extended, meaning the member's term is likely to expire before the litigation completes. So, now what? 

How about this ... could we substantially raise the entry qualifications? We just got through a whole national push for "Highly Qualified Teachers," so perhaps it is time for a national push for "Highly Qualified School Board Members."

Most board qualifications look something like this, where the minimum qualifications are just to be a human adult and live in the district. In fact, that Louisiana one I just cited is unique in that it requires the board member to be able to read and write. Most, it seems, do not. In fact, likely the most complicated thing about running for school board is filling out the nominating papers. 

So, what about requiring a college degree to serve on a school board? Such a requirement would be legally possible, it seems. In particular Kentucky seems to be a leader on this front in requiring their board members to have completed the 12th grade or have received a GED certificate. In 1990, with KERA, we increased this from 8th grade to 12th grade, so increases are not out of the question. Further, case law in Kentucky has upheld these educational provisions (Commonwealth v. Norfleet (272 Ky. 800, 1938)). Thus, perhaps other states should consider this model and perhaps it is also time to increase the educational attainment to at least an Associates or Bachelors degree? 

In the same way that the federal government put forth the Highly Qualified definition, they could do the same thing for board members. It is a bit more complex because board members are elected officials, but I think the smart people in Washington could figure it out. Alternatively, states could just take it on themselves to increase board member qualifications. Politically, it seems, such a bill in the state legislature would not be dead on arrival, like some other possible changes to school board structure.  

Okay, the downside. While I don't see much downside, I do think it could harm representation particularly in two areas, minorities and the aging/elderly. Because drop-out and college attainment rates are lower in some minority populations, there would be less of a pool of candidates in some areas of the county. But, to me, even more of a reason to have college graduates on the board as examples to the students. Secondly, the bigger problem it seems, is that some elderly would not qualify not as a result of their lack of knowledge or hard work, but simply as a result of generational shifts in educational expectations. Because many current board members are older individuals (have a look at the rest of the board in Colorado), a phase-in provision might have to be added to compensate for these generational differences. Certainly there would have to be a grandfathering provision for all existing board members (no pun intended, of course). 

This kind of provision certainly would not get rid of all the crazy people. Remember, this guy had no problem attaining degrees from top schools. And, this guy in Colorado may well have a college degree, especially since it is a university town. But, generally, entry requirements for school board members would likely increase the quality and expectations of local school boards. Given that they are the true entity legally tasked with running local schools (not administrators or teachers), I think a national push to set a minimum educational attainment for local school boards makes perfect sense. 

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. 

Washington (State) Special Education Funding Challenge Fails

At the end of last week, the Washington Supreme Court issued its decision in School Districts' Alliance for Adequate Funding in Special Education v. State (link to majority opinion).  The court rejected a challenge to the adequacy of special education funding in the state, holding that any such inadequacy was not shown "beyond a reasonable doubt."  At first reading, this seems to be an odd standard for determining educational adequacy. 

However, the court took pains to note that the "beyond a reasonable doubt" standard of unconstitutionality is not an evidentiary standard, but a way of calibrating the extreme deference that the court affords legislative policy judgments.  Thus, on a broader reading, the decision seems in line with the current trend in the adequacy cases to (1) reach the merits; but (2) apply a highly deferential standard of review (see my posts on Colorado, Connecticut, and Missouri). 

The court also hinted that the challege to the statute's constitutionality was an "as-applied" challenge, rather than a "facial" challenge.  Bill Thro's most recent article would argue agaist that characterization for state constitutional challeges to funding statutes, and I tend to agree normatively.  Nevertheless, descriptively, the way the case was presented to the Washington court, I think that the "as-applied" label might fit there. 

By way of shameless self-aggrandizement, I must also point out that two concurring justices saw fit to cite my recent Alabama Law Review piece in criticizing the "beyond a reasonable doubt" standard of constitutionality. 

Another Pledge of Allegiance Case

Over at the Constitutional Law Prof Blog, Professor Steven Schwinn reports on a recent First Circuit decision upholding a New Hampshire law that requires teachers to lead their classes in the Pledge of Allegiance (with a silent opt-out right for the students) against challenges based on both the Establishment Clause and the Free Exercise Clause.  The decision is very interesting, in part because the plaintiffs are represented by Michael Newdow, who was the plaintiff in the last Pledge of Allegiance case to reach the Supreme Court (Elk Grove v. Newdow).  The difference between this case and Newdow is that if this case reaches the Supreme Court, the Court will have to decide the merits, as there is no standing-based backdoor through which the Court can escape. 

Louisiana's Constitution and Education Reform

I have posted before about education reform in New Orleans since Hurricane Katrina.  In my most recent entry, I mentioned two law review issues that focus on the education law issues in the New Orleans reforms.  I just posted my contribution to one of these issues on SSRN.  My contribution addresses the unique education provisions of the Louisiana Constitution from the perspective of those thinking about state constitutional design, using New Orleans in part as a mini-case study.  You can download the full-text draft free of charge here.  The abstract appears below:

State Constitutional Design and Education Reform: Process Specification in Louisiana

In this article, I examine the role of state constitutional design in shaping the challenges of educational reform and the enforcement of affirmative state constitutional duties. I begin with a brief discussion of state constitutional design in general, and I expand this discussion to include the specific drafting approaches used in promulgating state constitutional education duties. I continue from this point with a review of how these provisions have been used in school finance litigation – the principal vehicle for enforcing education rights in the states – and how they have been modified in response to such litigation.

Following this analysis, I engage in a limited case study of constitutional design in Louisiana. I begin by outlining the education provisions in Louisiana’s current state constitution. I review both the drafting strategies used in the initial education article, and the unsuccessful school finance litigation that gave rise to the most prominent recent changes to the education article. I conclude that Louisiana’s reformers have chosen a decidedly unique, process-oriented path in amending Louisiana’s education article, as compared with reformers in other states, who have attempted substance-based reforms to their states’ education provisions.

Based on this case study, I present both general and situational arguments in support of the specification of process-based limitations as a strategy appropriate for drafting or amending state constitutional education articles and other affirmative-duty provisions. I base the general argument on the unique features of state constitutions and state governments, which leave courts well-positioned for review of legislative processes in pursuing affirmative constitutional duties. I present the situational argument in light of the current funding realities in the New Orleans school system. I argue that the specific, process-based limitations in the Louisiana Constitution could prove very useful in the coming years as federal relief funding largely disappears, and Louisiana is left to fund the state’s schools based mostly on state-derived revenues. Based on these arguments, I conclude with the suggestion that those drafting and amending state constitutions containing affirmative legislative duties should consider specific, process-based limitations as a useful element of state constitutional design.