Dismal Grades

• Author: Lorelei Laird
• Pages: 18-19

The Docket

18 || ABA JOURNAL APRIL 2019

Dismal

Grades

Plainti s seeking more

school funding are using

states’ own performance

requirements to win

By Lorelei Laird

When it comes to edu-

cation, New Mexico’s

students score at t he bot-

tom of the nation.

In 2017, New Mexico’s

eighth-graders per-

formed the worst of any state in stan-

dardized t ests for reading, and its

public high school seniors had the low-

est graduation r ate of any state that

reported usable d ata. A full thir d of

those who did gr aduate and go to col-

lege needed remedial courses.

It’s not a coincidence that these

scores are so low, says Pres ton Sanchez,

an attorney at the New Mexico Center

on Law and Poverty . New Mexico i s a

majority-minority state —most students

and most people are Latino or Native

American—and Sa nchez says the state

has not met those populations’ linguis-

tic and cultu ral needs.

“The issue is … the failure by the

school system to fully address those

needs, to ensu re that learning, instr uc-

tion, pedagogy, ins tructional materials,

are cultura lly relevant and responsive

to those needs,” Sanchez says.

And that’s why Sa nchez and his co-

counsel fi led Yazzie v. S tate of New

Mexic o, which was lat er consoli-

dated with a similar lawsuit from t he

Mexican American Legal Defense and

Educationa l Fund, Martinez v. State of

New Me xico. Both lawsuits alleged that

the state was underfunding the school

system so sever ely that—at least as to

high-risk students—it fai ls to meet the

state constitution’s requirement for “a

uniform syst em of free public schools

su cient for the education of … all the

children.” In July of 2018, Judge Sara h

Singleton of New Mexico’s Firs t Judicial

pregnancy or ectopic preg-

nancy,” SFLA’s Kristan

Hawkins said in a statement .

“To risk women’s lives by

mail ing out th ese dr ugs wit h-

out any oversigh t, exam or fol-

low-up en dangers women for

no rea son other than a p oliti-

cal agenda that ignores wom-

en’s need s,” Hawki ns said.

Meanwhile, the anti-abor-

tion group Americans Unite d

for Life says it is in discus-

sions with potential cong res-

sional sponsors of federal

legislation relating to the

matter. “In addition to the

fact that the proces s does not

follow the [FDA’s] recom-

mendations for patient pro-

tection ... some states have

outlined by statute or medi-

cal rule how drug-induced

abortions must be handled ,

given that they are r iskier

than surgica l abortions,” says

Catherine Glenn Foster , a

lawyer and AUL’s president

and CEO. “Gomperts’ scheme

does not appear to take such

laws into account.”

While keeping a watchfu l

eye on developments, repro-

ductive rights advocat es say

restrictions on abor tion ser-

vices only create more soc ial

inequality, meaning that

women with fi nancial means

and information, plus time

and money to travel out of

state if needed for an abor-

tion, are much more likely to

access serv ices than women

without.

Women seek nonclinical

abortions for many reason s,

including a desire for privacy,

cultural tra dition, religious

beliefs, gender identity or

because they’re in a n abusive

relationship.

Adams says unfort unately,

the threat of arres t looms

largest for youth and women

who are margina lized, espe-

cially those liv ing in poverty,

people of color, those lacking

immigration documentation

and women who rely on pub-

lic insurance. Q

District i n Santa Fe agreed.

“A review of the ev idence concer ning

student outputs leaves th is court with

no doubt that the educat ion being pro -

vided to at-ri sk children is resulting

in dismal out comes,” wr ote Singleton,

who retired in 2017 but retained t his

case. “Simply put , the outputs refl ect

a systemic fa ilure to provide an ade-

quate education as required by the New

Mexico Constitution.”

Rulings like t hat are the new nor-

mal in education funding lawsuits,

says David Scia rra of the Newark, New

Jersey-based Education L aw Center .

Parents and school d istricts have been

suing over school fu nding for decades,

but they had li mited success simply

arguing th at school funding was inad-

equate or inequitable. These days,

Sciarra says , plainti s are using state-

mandated performance standards t o

argue that states aren’t living up to

their end of the ba rgain—and they’re

winning.

“On the one hand, they’re essentially

mandating what k ids should know and

learn and how t o gauge that success,”

Sciarra says . “But on the other hand,

they’re not giv ing the school districts

the funding nec essary to provide the

resources that kids need to meet those

standards.”

A NEW WAVE

People interested in e ducation

fi na nce lawsuits generally break t hem

into three wave s. The fi rst wave a rgued

for equity in s chool funding by mak-

ing equal protec tion claims under the

U.S. Constitution. That practice came

to a screechi ng halt when the U.S.

Supreme Court ru led in 1973’s San

Antonio Independent School District

v. Rodriguez that there is no constitu-

tional right to an education.

The second wave made equity argu-

ments under state c onstitutions, all of

which have a clause requiring the leg-

islature to c reate and maintain public

schools. That has paved the way for a

third and cu rrent wave: lawsuits argu-

ing for adequacy, not equit y, under

those education clause s. This is still

going on, but—at least in courts—it’s

been more successful.

One reason for th at, Sciarra says, is

the No Child L eft Behind Act of 2001 ,

which requires states to create sta n-

dards and a ccountability systems i n

National

Pulse