Averting educational crisis: funding cuts, teacher shortages, and the dwindling commitment to public education.

• Author: Black, Derek W.

Recent data shows that two-thirds of states are funding education at lower levels than in 2008. Some states are 20% or more below levels of just a few years earlier. The effect on schools has been devastating. States are only exacerbating the problem by reducing teachers' rights and benefits. These attacks, combined with funding decreases, have scared many prospective teachers away from the profession. The net result is an extreme shortage of teachers nationwide. When the school year began in 2015, a large number of public schools opened without enough certified teachers to fill classrooms, relying instead on substitutes and interns on a full-time basis. In other instances, schools stopped offering certain classes. Decades of social science research demonstrate that these funding and teaching policies will have serious academic impacts on students. They will likely widen achievement gaps and impose learning deficits that some students will never overcome.

In the face of analogous threats, courts in the past have regularly intervened to protect educational quality and funding. Yet this time around, courts have increasingly refused to intervene and have rarely offered a compelling reason for the refusal. This judicial passivism towards education marks a troubling new trend. It suggests that the constitutional right to education may exist only in theory, and that students are losing the constitutional leverage to demand that states repair the damage that they have caused. Likewise, nothing will prevent states from pursuing similar retractions again in the future.

This Article offers a new doctrinal approach to reverse both educational retractions and judicial disengagement. Current trends, however, cannot be reversed without acknowledging the potential limits of judicial intervention during crisis. In particular, a serious crisis incites fear and political expediency, which can prompt legislatures to ignore court orders that purport to remedy the crisis. This disregard is inherently problematic for both education rights and the basic legitimacy of judicial authority, regardless of the subject matter. In this respect, the solution to the devaluation of education rights is also a step toward strengthening judicial authority. In education, courts must begin to incorporate prospective doctrines and rules that reduce the likelihood of judicial standoffs with legislatures. In short, future court orders should seek to avert crises by addressing them before they occur. This Article proposes three specific steps courts can take to achieve this end.

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INTRODUCTION

In the Fall of 2015, extreme teacher shortages swept the nation, revealing that the education crisis that began during the Great Recession is far from over. (1) From 2008 to 2012, nearly every state imposed budget cuts on education. (2) Cuts of more than $1,000 per pupil in a single year were routine--the equivalent of an assistant teacher in every classroom or the entire science and foreign language departments combined. (3) Some states experienced massive cuts for multiple years. In North Carolina and Florida, per-pupil funding fell from over $10,000 to the $7,000 range in just a few years. (4) These funding cuts affected a wide array of educational services, but the most significant were regarding teachers. Layoffs, pay cuts, and new, high-stakes accountability systems dissuaded the next generation of talent from even pursuing a teaching career. (5)

As states finally began to replenish their teaching ranks in 2015, they found that teachers were in very short supply. In many instances, districts struggled to hire even the most minimally qualified individuals. Just to ensure warm bodies in the classroom, districts resorted to desperate measures--billboard advertising, hiring substitutes and college interns on a full-time basis, and seeking district-wide exemptions from teacher certification requirements. (6) In some districts, these drastic measures were not enough to stop class cancelations and teaching overloads. (7) The teaching demand in California, for instance, is 40% higher than the supply of individuals seeking teaching credentials this year. (8) Current projections indicate the shortage will get worse before it gets better. (9)

This crisis cannot simply be written off to the recession and its after-effects. At the same time that states were making cuts to traditional public education, they were enacting huge increases for charter schools and voucher programs. (10) The recession may have necessitated some cuts and efficiencies in public education, but many states appear to have used the recession as a convenient means to redefine their commitment to public education. Indeed, the presence of a substantive shift in commitment is becoming clearer with each passing year. By 2012, state revenues rebounded to pre-recession levels, (11) but as of 2015, thirty-one states were still funding education below pre-recession levels. (12) Compared to the past sixty years of recessions and school funding, the current state of affairs is "unprecedented." (13)

The negative effects of reducing education funding and teacher quality are well documented. Decades of studies indicate that money does, in fact, matter to educational outcomes. (14) The latest research leaves no doubt: a substantial portion of the achievement gap between middle- and low-income students is attributable to school funding inequality. (15) Even clearer is the social science consensus that teacher quality is the most significant variable in student achievement. (16) Thus, as class size goes up while teacher quality goes down, states threaten to exacerbate an already wide achievement gap, particularly in poorer schools. (17)

Courts' refusals to seriously entertain constitutional violations, or intervene when they occur, undermines the constitutional right to education itself and makes the reoccurrence of future crises more likely. In past decades, state supreme courts regularly struck down education policies and practices that undermined educational opportunity. (18) All fifty state constitutions obligate the state to provide education to students. (19) A majority of state courts have held that these constitutional clauses include an equity or quality component that obligates the state to do more than just offer minimal basic services. (20) To ensure adequate education opportunity, states must create funding formulas that supply additional funds to meet the needs of disadvantaged students and, among other things, ensure access to quality teachers. (21) While this litigation has not come close to curing all of education's funding and quality ills, courts have emphasized that states' affirmative duties in education are not optional, even during times of financial exigency. (22)

The recession appears to have changed the trajectory of equity and adequacy litigation. Since the recession, courts have rejected school funding and quality challenges at a far higher rate. (23) Even in those instances in which plaintiffs have won since the recession, legislatures have simply defied the courts, refusing to comply with judicial remedies. (24) Thus, even when plaintiffs have received favorable judicial opinions, they have struggled to secure victory outside court.

This legislative resistance also raises concerns that stretch well beyond education rights to the basic legitimacy of judicial decisionmaking itself. If legislatures will defy courts in the education context, defiance in other contexts only becomes more likely. Whether these trends will change in the other education cases currently pending in the courts remains to be seen. (25) But unless courts reengage and alter their approach soon, increased inequality and inadequacy may become the new norm--a norm that courts and advocates have spent decades trying to unseat. (26)

An erosion of judicial enforcement raises two fundamental questions about the current state of constitutional education rights and duties. First, are education rights and duties contingent on external competing factors? As a matter of doctrine, courts prior to the recession have emphatically said no. (27) Even after the recession, none have dared suggest otherwise, rejecting plaintiffs' claims on other questionable grounds. (28) But if the real measure of a constitutional right is its enforcement rather than its mere doctrinal articulation, (29) education rights are being quickly devalued and becoming, as a practical matter, entirely contingent on external factors. In effect, courts are granting states the power to override education rights, without even demanding that states justify their policies.

This devaluing of education rights leads to the second question: can future overrides of education rights be avoided or minimized? Aggressive judicial intervention at the moment of serious educational crisis is too little too late. Even in good times, motivating legislatures to pass remedial legislation can be challenging. (30) During economic crises, legislatures only grow more recalcitrant and might ignore the court. (31) The practical effect of legislative defiance is to undermine the legitimacy of the judiciary itself, as judicial authority primarily depends on voluntary compliance. Similarly, the constitutional importance of education duties and rights rests on the existence of a judiciary that can enforce them. Operating within these practical constraints, the only effective means of ensuring constitutional compliance in education during crisis is to prepare for crisis before it occurs.

Toward that end, this Article proposes three steps to alleviate the potential further devaluation of education rights in the future. First, moving forward, court orders in school equity and adequacy cases must deter future constitutional violations. In the past, courts have asked no more of states than that they create constitutional systems at some point following the litigation...