After education-adequacy ruling in Colorado, Minnesotan suggests different way to frame the issue

/ 11 June 2013 / eunice

Beth Hawkins, MinnPost, June 11, 2013 – As the ink was drying on Minnesota’s 2013 education finance bill, Colorado’s Supreme Court was handing down a decision long awaited by public-school advocates throughout the country. The 4-2 decision is not good news for advocates of increased school funding, but it does add to a growing body of intelligence about how best to proceed with similar suits elsewhere.

As in most states, Minnesota’s constitution guarantees all children an adequate education and places responsibility for establishing “a general and uniform system of public schools” on the Legislature’s shoulders. After a decade of dramatic cuts in state aid, a number of advocates here have paid careful attention to adequacy suits in other states.

The most recent to reach a final resolution,Labato v. Colorado was filed in 2005 by the families of 67 students who argued that state financing for schools was grossly inadequate to provide the “thorough and uniform” educational system mandated by Colorado’s constitution. A majority of Colorado’s 178 school districts backed the suit.

Colorado’s high court overturned a trial court decision in favor of the plaintiffs, holding that schools may be underfunded but the state’s system for parceling out revenues did not violate the constitution.

“While we sympathize with the Plaintiffs and recognize that the public school financing system might not provide an optimal amount of money to the public schools,” said the majority opinion, “the statutory public school financing system itself is constitutional.”

Attorney and St. Cloud School Board member Jerry Von Korff has long argued that Minnesota’s school finance system is unconstitutional. To boil a complicated matter down to the simplest statement, the Lobato suit did not ask for the right solution, he says.

The suit put the onus for determining what a good education is and how much it costs on the trial court judge. What it should have done in Von Korff’s opinion was to ask the court to order governor and lawmakers to conduct that exercise and then find the money required.

“The purpose of judicial review should be to force the government and the legislature to make decisions in the right way, vs. forcing courts to make it for them,” says Von Korff.

Colorado idiosyncrasy

Plus, Colorado has the additional complication of having a constitution that seems to point in differing directions. It requires a fair funding system, but an amendment, the Colorado Taxpayers Bill of Rights, restricts the legislature’s ability to raise taxes.

And so policymakers are forced to go to taxpayers when they need new revenue. In the more than two decades since, numerous efforts to persuade voters to tax themselves to boost lagging school aid have failed.

Six years of legal back and forth ensued before the case finally went to trial two years ago. A parade of national education policy experts took the stand to testify to what a decent education consists of, its cost and the cost of not ensuring it. The state’s schools needed an injection of $2 billion to $4 billion, plaintiffs argued.

The state countered that the level of funding sought by the plaintiffs would bankrupt Colorado by consuming 89 percent of its budget. Plus, no evidence exists tying achievement to a particular level of spending.

(MinnPost ran a history of educational adequacy suits here and elsewhere when the trial started. At that time, plaintiffs had won two-thirds of the 45 suits resolved since 1970.)

In December 2011, the trial court judge issued a ruling in favor of the Lobato plaintiffs that ran to the hundreds of pages. The state appealed and on May 28, Colorado’s high court reversed the ruling.

Another approach

In a Facebook exchange with Your Humble Blogger that gave rise to this story, Von Korff said the decision didn’t dampen his belief that courts here would find Minnesota’s system unconstitutional if the issue were framed differently.

Lobato, he wrote, was “very fact-intensive, very expensive — an attempt to engineer the cost of education in the district court with extensive costly expert testimony. The lawyers and experts did a great job. I’m not at all critical. But it’s not the approach that I favor.”

Minnesota’s is one of many state legislatures that don’t attempt to calculate the cost of an adequate education even as they create more and more required programming, he points out. If lawmakers feel entitled to define the education they want all residents to have — e.g. literacy by third grade, math proficiency upon graduation — they must fund efforts to deliver it.

Von Korff points to a January 2012 decision by Washington’s Supreme Court that he called “groundbreaking” in a series of posts on his highly readable blog, JvonKorff on Education:

“The Washington Court’s idea is this,” the first in a series of entries reads. “The Constitution apportions to the legislature the responsibility to define an adequate education. When a court is called upon to determine whether that definition is constitutionally sufficient, it must give great deference to the legislature.”

Courts could overturn standards that fly in the face of the “modern understanding of the level of education sufficient to function in a free society,” he continues. “But by and large, in the last several decades, legislatures have generally been defining basic educational requirements in a responsible way.”

The proper role of the court, then, is to determine whether the legislature “has made a credible effort to connect the funding level provided to public schools with the true cost of providing that education.”

One more step

Indeed, Von Korff would have Minnesota go a step further than the Washington high court and calculate the cost of providing that education to different students. It costs more to bring some students to proficiency than others, he notes.

“Private schools could not and would not accept the challenge of educating all children who come to them unless they received an elevated funding allocation for the children who cost the most to educate,” he suggests. “We cannot expect public schools to do so either.

“Indeed, when we hear advocates from communities with very small populations of hard-to-educate children, they seldom advocate that they should get their share of the costly students along with the extra funding. Very few of these advocates would make that trade, because they know, in fact, that Minnesota’s current funding system actually under-funds the hard-to-educate.”

In Colorado, lawmakers this spring passed a bill that would pump significant new resources into education. But it can’t be put into effect unless voters this fall approve an estimated $1.1 billion tax increase via a ballot initiative.

Does Von Korff think a case framed along the lines of Washington state’s would succeed in Minnesota?

“I believe that the central constitutional question in Minnesota is whether the legislature can ignore the cost of services it mandates in funding local school districts, and then deprive them of both state and local funding sources necessary to deliver those services,” he replies.

“We have a moderate Supreme Court, but it is populated by thoughtful jurists who care about Minnesota’s future. I am very confident that a properly designed school finance litigation, one that is cognizant of the judicial, executive, and legislative functions, while implementing the intent of Minnesota’s education clause, will be successful.”

http://www.minnpost.com/learning-curve/2013/06/after-education-adequacy-ruling-colorado-minnesotan-suggests-different-way-fr