Safeguarding the right to a sound basic education in times of fiscal constraint.

• Author: Rebell, Michael A.
• Position: I. Introduction through III. The Constitutional Right Must Be Enforced Regardless of State Fiscal Constraints, p. 1855-1885 - Chief Judge Lawrence H. Cooke Sixth Annual State Constitutional Commentary Symposium: The State of State Courts

ABSTRACT

Since the economic downturn that began in 2008, shortfalls in revenues of state government have precipitated wide-spread reductions in educational expenditures that are likely to continue for the foreseeable future. Schools throughout the country have shortened their hours, raised class sizes, cut back on curriculum offerings, and curtailed purchases of books and instructional supplies. Serious constitutional issues are raised by these budget cuts. Most state constitutions guarantee all students the right to the opportunity for an adequate or sound basic education. Nevertheless, many governors and legislators, while honoring their constitutional obligation to balance the budget, ignore or neglect their affirmative constitutional obligation to ensure that students' rights to the opportunity for a sound basic education are maintained in hard economic times.

It has long been established that constitutional rights cannot be denied or deferred because of state financial constraints. In past and recent court decisions dealing with reductions in state funding for education during times of fiscal constraint, the courts have consistently upheld students' rights to a sound basic education every time they have directly confronted the issue. However, there is an increasing pattern of judicial reluctance to confront the executive and legislative branches by using technical and procedural justifications to avoid deciding cases on the merits or to limit remedies in cases that are decided.

A detailed case study of the reductions in educational funding over the past three years in New York State illustrates the extent to which the governor and the legislature have violated the constitutional requirements articulated by the New York Court of Appeals in CFE v. State of New York. States can however, meet their constitutional obligations while, at the same time, promoting efficiency and cost effectiveness practices to meet their budget goals. To do so, they need to (1) develop guidelines concerning the essential programs and resources needed to provide a sound basic education; (2) develop efficiency and cost effectiveness policies that do not undermine student services in areas such as mandate relief, special education reform, school district consolidation, teacher turnover, and pension modification; (3) undertake a cost analysis to determine a cost effective and adequate funding level; (4) develop foundation funding systems that reflect the actual cost of providing educational services in a cost effective manner; and (5) establish state level accountability for adequacy mechanisms.

Procedures such as these provide governors and legislatures the effective tools for meeting their constitutional obligations while dealing with fiscal constraints, and courts need to enforce the constitution when they fail to use them.

1. INTRODUCTION II. THE CONSTITUTIONAL RIGHT TO THE OPPORTUNITY FOR A SOUND BASIC EDUCATION III. THE CONSTITUTIONAL RIGHT MUST BE ENFORCED REGARDLESS OF STATE FISCAL CONSTRAINTS A. The General Constitutional Doctrine B. Specific Application to Reductions in Educational Appropriations 1. Past Court Decisions 2. Recent and Pending Court Decisions IV. CONSTITUTIONAL CHALLENGES AND CONSTITUTIONAL VIOLATIONS A. Problems of Constitutional Enforcement in Difficult Economic Times B. A New York Case Study 1. Implementation of the Court of Appeals' CFE Decision 2. Constitutional Violations a. Funding Reductions b. Deferral of Scheduled Funding Increases c. The Cap on Tax Increases V. A FRAMEWORK FOR CONSTITUTIONAL COMPLIANCE A. Develop State Regulations to Implement Sound Basic Education Requirements B. Promote Efficiency and Cost Effectiveness Without Undermining Constitutionally-Required Student Services 1. Mandate Relief 2. Special Education Reform 3. School District Consolidation 4. Teacher Retention 5. Pension Reform C. Undertake a Cost Analysis to Determine an Adequate and Cost Effective Funding Level 1. Definitive Outcome Criteria 2. Extra Weightings for High Needs Students 3. Cost Efficiency and Cost Effectiveness D. Create Fair Funding Formulas that Reflect the Actual Costs of Providing Educational Services in a Cost Effective Manner 1. A True Foundation Funding System 2. Funding Stability E. Establish State Level Accountability for Adequacy Mechanisms VI. CONCLUSION I. INTRODUCTION

   Extensive reductions in state and local funding for public education since the economic downturn that began in 2008 have resulted in substantial cutbacks in educational services and, in many cases, have put in jeopardy students' constitutional right to the opportunity for a "sound basic education." (1) These cuts have been the worst that schools have experienced in over three decades, (2) despite substantial federal assistance to the public schools through the American Recovery and Reinvestment Act ("ARRA"). (3) With the federal stimulus money now drying up, (4) the cutbacks in education spending and the consequential detrimental impact on services to students are becoming increasingly acute.

   In recent years, average class sizes in Los Angeles have bumped up toward thirty and were over forty in some high schools; (5) teachers in Hawaii were "furlough[ed]" and classes were cancelled for seventeen straight Fridays; (6) and, in Georgia, $112 million, amounting to over twenty percent, was cut from the equalization component of the state's education aid formula established to help close the gap between wealthier and poorer districts. (7) For 20112012, school districts in California and South Dakota cut back the number of school days to four per week, (8) Illinois eliminated state funding for advanced placement CAP") courses in school districts with large concentrations of low-income students, (9) Texas terminated pre-school services for over 100,000 mostly at-risk students, (10) and substantial cuts in expenditures for instructional supplies have limited computer time and precluded students from taking textbooks home to study their lessons. (11)

   A survey of forty-six states with available data indicated that, in inflation-adjusted terms, thirty-seven are spending less on education in 2011-2012 than they did last year, thirty are spending less than they did in 2008, and half of them have cut funding by more than ten percent since the 2008 recession, even though costs for education and other related services have risen. (12) States will continue to face budget shortfalls in future years that are still very large by historic standards. (13) James Guthrie and Arthur Peng advise school districts to prepare for a long-run economic "tsunami" created by resource competition on a national level with health care, social security, national debt, and aging infrastructure, as well as extensive unfunded financial obligations for retirement plans and health care, that are likely to endanger the favored funding position that education has enjoyed for the past century. (14)

   The impact of such budget cuts on children's education is serious, especially for low-income and minority students whose schools, even in pre-recession days, had been substantially resource deprived. (15) The number of days in the school year are being reduced at a time when a growing body of research indicates that longer, not shorter, school days and school years are essential, especially for low-performing students, (16) and resources are being reduced at a time when the federal and state governments are raising standards and insisting that all students graduate high school college and career ready. (17) And, as their budget pressures mount, states are beginning to take additional actions that directly undermine possibilities for educational excellence, such as delaying the replacement of old textbooks, (18) lowering academic standards, (19) and postponing the adoption of higher standards. (20)

   During the current economic downturn, as during past recessions, school operations and educational planning have been held hostage to the vicissitudes of economic cycles. (21) This pattern of boom and bust economic swings creates havoc with educational opportunity. Effective learning follows children's developmental needs and sound curriculum pacing, and not the rhythms of budget cycles. Children who fail to become capable readers early in elementary school are likely never to catch up, and teenagers who drop-out of high school for lack of sufficient supports will suffer life-long disadvantages.

   Constitutional rights are not conditional and they do not get put on hold because there is a recession. Children's need for meaningful educational opportunity cannot, therefore, be deferred because tax receipts are lagging. The courts have repeatedly insisted that, "the financial burden entailed in meeting [constitutionally mandated education provisions] in no way lessens the constitutional duty." (22) Vulnerable low-income and minority-group children are, of course, the ones who suffer the most when constitutional mandates are ignored and vital services are eliminated. Moreover, without constancy in the provision of basic educational services, the national goal of overcoming the achievement gap, the national interest in maintaining our competitive position in the global economy, and local needs to be economically competitive cannot be realized. (23)

   Although children's constitutional rights must be upheld despite fiscal constraints, the magnitude of the economic crisis that states and localities are facing over the next few years (24) does require strong efforts to be made to promote cost efficiency and cost effectiveness. Therefore, it is appropriate, if not imperative, for states and school districts to reconsider structural issues in the way educational services are provided in order to effectuate cost savings--so long as they ensure that the educational services students receive do not fall...