Taking teacher quality seriously.

• Author: Black, Derek W.
• Position: II. School Finance Litigation: Ignoring and Oversimplifying the Challenges of Access to Quality Teacher C. The Outliers: Courts That Focus on Teachers through Conclusion, with footnotes, p. 1635-1669

3. The Outliers: Courts that Focus on Teachers

   Of all the school finance cases litigated, only two came close to analyzing fully the challenge of adequately staffing schools with quality teachers. Those cases--in Tennessee and Wyoming--produced several trips to the supreme and lower courts in each state. (190) These two states defy the overall rule most likely because the cases were the only ones to focus almost exclusively on teachers. In fact, in several of the decisions, teachers were the only issue before the court. This laser-like focus prevented the myriad issues surrounding teachers from being obscured by other nonteacher issues.

   In Tennessee, the reoccurring issue for the supreme court was whether the state's evolving funding formula properly accounted for the cost of compensating teachers. (191) Across these decisions, the court consistently reiterated that minimum statewide salaries were insufficient, teacher salaries must be cost-driven like any other aspect of the budget, and competing for teachers means not just competing with other districts but competing with other professions outside of teaching. (192) In all these respects, the court emphasized that the ultimate question must be whether teacher compensation is sufficient to ensure equal educational opportunity for students, not whether it provides equal compensation for teachers. (193)

   The Wyoming Supreme Court went even further. The court was forced to analyze competing statistical analyses of differing funding schemes to determine how they would affect class size and average teacher salaries. (194) The state posited, for instance, that where housing costs were the highest, "other amenities [would] exist" to offset the need for higher salaries. (195) Because those amenities would make the areas more desirable, raising compensation for teachers in those districts would "overcompensate" them. (196) The trial court had rejected the state's funding scheme, "concluding] that regional cost-of-living adjustments were appropriate but the modified index was inappropriate [and] did not accurately reflect the actual disparity in the cost of hiring teachers in various locations throughout the state." (197) The court also questioned the efficacy of relying on past expenditures in school districts to determine the actual cost of delivering an adequate education, indicating that it is "far preferable" to rely on methods that go "shopping" for teachers, which "involve[s] determining salary and other compensation rates for professionals with training and experience comparable to teachers, counselors, administrators, etc., [and] wage rates for classifications of employee skills utilized by school districts." (198)

   The court also acknowledged the fluidity of the market. Because this "shopping" market is subject to continual change like any other market, the state must regularly reevaluate the market and adjust its funding schemes accordingly. (199) For instance, one-third of current teachers in Wyoming would become "retirement-eligible by the year 2004, significantly fewer graduates [would] seek[] teaching positions, and the aggressive recruitment of Wyoming teachers by other states offering considerably higher salaries and benefits" was already underway. (200) The unavoidable coming market changes required the state to be proactive:

   The legislature does not have the luxury of waiting until the crisis fully materializes before taking the action necessary to remain viably competitive regionally and nationally. .... Because teacher quality is critical to providing a constitutional education and all parties recognize the looming national problem of a teacher shortage, the legislature is also directed to monitor the supply of qualified teachers and take appropriate action should national conditions continue to worsen to the detriment of Wyoming schools. It is unacceptable for essential teaching positions to remain unfilled or to be consistently filled by unqualified applicants. (201) None of the foregoing, however, is to suggest Tennessee or Wyoming as model. Although both courts certainly addressed nuances that most other courts ignore, they still did not fully account for some of the relevant market, professional, structural, and racial challenges discussed in regard to other states. For instance, a shopping theory in Wyoming would work only if one accounts for and counteracts buyer and seller biases. The same is true for Tennessee's demand that salaries be cost-based in regard to other professions. And neither state does much to engage the teacher pipeline. The point here is simply that only two courts of all those that have intervened in educational adequacy and equality have seriously addressed teachers, but even these courts should have gone further.

4. Assessing the Effect of School Finance Remedies on Teachers

   The failure to specifically analyze teachers or certain aspects of securing equal access to them does not necessarily mean school finance litigation has had no meaningful impact. Changes in school funding that add to the bottom line of education budgets will almost necessarily affect teacher salaries. And changes in teacher salaries will presumably have some effect, even if minor, on the teaching labor market. Keenly aware of this practical reality, teachers and teacher unions have been heavily involved in funding and pushing litigation in several states. (202) Of all the additional revenue secured through this litigation, 34 to 45 percent has been directed to teacher wages. (203) On average, this amounts to a 4 percent pay increase for each teacher or about $1200 in additional annual salary. (204)

   David Sims's detailed analysis of these salary increases, however, confirms that obfuscating teacher issues has not produced meaningful reforms. (205) In some situations, the problems that gave rise to the constitutional violations in the first instance have remained or replicated. Across-the-board 4 percent raises are so small that they do almost nothing to change the general attractiveness of the profession. (206) Thus, these raises ultimately fail to change the labor market in any meaningful way.

   Had states concentrated these funds on salary increases for certain categories of teachers, they would have had a greater chance of meaningfully impacting the profession or certain students' access to existing teachers. For instance, Sims writes that:

   [S]ome of the salary increases may be intended to attract more talent to the teaching profession over time or to retain more teachers in their early years (when attrition is very high). Hence, the increase in salaries is paying for an increase in teacher productivity. Empirically, if this were the case salaries of less experienced teachers should increase in proportion to those of their senior colleagues who have less mobility hazard. We might also expect the initial salaries for teachers to increase to attract better applicants. (207) But the data again reveals that this has not been the case. The salaries of newer teachers have not risen and may have even fallen in some instances. (208)

   The salary increases for school finance litigation have been tunneled through existing salary structures that may even be counterproductive or wasteful. These existing salary structures place a premium on experience, and, thus, tunneling salary increases through them drives the largest increases to senior teachers. (209) In effect, teachers who have been in place the longest and are not planning to leave are the most likely to receive the largest salary increases. Sims refers to this as "rent[] capture[]." (210) The state increases the inputs but does not secure a change in outputs. (211) In the context of constitutional claims, this means that the state is not securing additional teaching quality or remedying the problems that produced inadequate or unequal educational opportunities in the first instance.

   Even with the preference for experience, states could have used the salary increases to drive experienced teachers toward high-need schools. This allocation could assist in the redistribution of existing teachers, even if it did not change the profession overall. But Sims's work, in conjunction with others, would again indicate that this redistribution of teachers has not occurred. (212) The funds at stake are simply too small to address the fundamental problems at hand. Based on his analysis of those fundamental problems, Gregory Gilpin calculates that "an increase in permanent income of $19,241 for math/science teachers and $9,717 for humanities teachers to teach in unfavorable schools may equalize teacher quality across schools." (213) But nothing even approaching that order of magnitude has been available for high-need schools and districts.

5. Why Courts Must Deepen Their Analysis of Teachers

   That courts have failed to engage in substantial analysis of teachers in the past does not answer the question of why they should now. One might posit that teachers are already at the center of the litigation, even if not discussed at length. As noted above, teacher salaries are by far the largest single item of education budgets. (214) Thus, school finance litigation, regardless of what is written in an opinion, is ultimately about teachers. Moreover, most courts identify teachers as a key component of a constitutional education, if not the most important component. (215) Sophisticated or not, New York's highest court, for instance, flatly stated, "[t]he first and surely most important input is teaching." (216)

   Neither recognizing the importance of teachers nor their dominant effect on school budgets is enough. Inadequacies and inequalities in teaching, although interconnected with overall funding problems, are not merely symptoms of funding problems. And even if teacher challenges were only symptoms of inadequate funding, they are sufficiently important and idiosyncratic that they demand their own immediate attention...