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Time to Throw Money at the Problem

December 12, 2011
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[UPDATED: 12/13/11 - see end of post]

It’s a well-worn phrase: you can’t just throw money at the problem. Well, what if the problem is a serious lack of money? Essentially, that’s the issue playing out in the Colorado court system.  The most recent developments were reported by the Denver Post:

In a ruling that could have profound consequences for Colorado’s budget, a Denver judge Friday said the state’s school-funding system is not “thorough and uniform” as mandated by the state constitution.
The state’s school-funding system “is not rationally related to the mandate to establish and maintain a thorough and uniform system of free public schools,” District Judge Sheila Rappaport said in a 183-page ruling in which she called the system “unconscionable.”
“It is also apparent that increased funding will be required,” Rappaport wrote.
The case, Lobato vs. State of Colorado, was filed in 2005.

Though the case will be appealed before its outcome compels any action by the state of Colorado, Judge Rappaport’s ruling suggests that the plaintiffs made a powerful case at trial, proving that the underfunding of education denies Colorado’s students their constitutional rights.  The government of Colorado is obligated to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.”

California’s constitution contains a similar provisions, and similar cases are currently working their way through our court system.  In one of those cases, the plaintiffs, Campaign for Quality Education (CQE), are represented by Public Advocates, Inc.  I spoke with staff attorney Tara Kini about the Lobato case in Colorado, who was naturally encouraged by the ruling in Colorado.  “It’s very exciting, a tremendous victory for the plaintiffs,” she told me by phone.  Among the findings she was most enthusiastic about was that the problems with school funding were not deemed to be a temporary result of a weak economy, but rather, a chronic problem exacerbated by a fundamentally flawed approach that denies adequate funding to all Colorado schools (for reasons detailed below).  Public Advocates and CQE are making a similar argument in their case, which lower courts have declined to hear and will soon be appealed to a higher court.  One key difference between the California and Colorado cases is that the CQE case not only argues the inadequacy of school funding on its own faults, but also argues that the inequities in school funding across regions is a violation of students’ rights to equal protection.

In the meantime, I hope public education advocates around the country will look into the details of the Lobato case.  While the precise language of consitutions and statutes will vary across states, I think the underlying logic displayed in this ruling would be broadly applicable, possibly laying out a strategy that could help compel states to provide a real quality education for all students.

I’ve picked out some of what I find to be the most important and compelling portions of the ruling, which you may read in its entirety (PDF) if you wish.  My citations are from the page numbers of the ruling itself, not the PDF, and I’ve offered a short comment on each selection.

Not one State witness was able to identify specific inefficiencies in the Plaintiff School Districts or any school district in the State that is wasting money. [State Education] Commissioner [Robert] Hammond is unaware of any district expenditure that is not related to fulfilling the principles of the “thorough and uniform” clause. (163)

Apparently, Judge Rappaport was not swayed by arguments that schools could be run more efficiently, since the defense was unable to show waste.

Dr. [William] Moloney does not know whether any of the examples he cites in his policy brief of schools doing “more with less” have actually resulted in any achievement gains.

Dr. Moloney believes schools should be reconstituted along the lines of parochial or Kipp schools, which he considers to be among the most successful schools. Kipp schools are distinguishable for two reasons. First, a recent national study on KIPP found that its schools serve fewer students with disabilities and students classified as English language learners. Second, Colorado Kipp schools report that public funding does not cover all the costs of running its schools, leaving a significant shortfall that is covered by private philanthropy. On average, Colorado Kipp schools receive $1600 more per student than the state per pupil revenue. (164)

The “doing more with less” argument was likewise not accepted without convincing evidence.  The evidence offered by the state’s witnesses apparently turned out to show schools doing more with more, and with an easier student demographic.

In many of the cases, the courts disagreed with Dr. [Erik] Hanushek’s expert opinion and found for the plaintiffs. In some of the cases, the courts actually found the data underlying Dr. Hanushek’s opinions to be questionable or problematic and found him to lack credibility….

Dr. Hanushek arrived at his conclusion that achievement across Colorado school districts bears little relationship to spending differences before he did any review or statistical analysis of Colorado data and before he spoke to any education officials in Colorado. In fact, his expert opinion in this case is essentially the same as the one he rendered for the State of Colorado in a public education case ten years ago. Hanushek Trial Tr. 5058:5-5059:6, 5059:23- 5060:3, 5160:9-21….

Dr. Hanushek did not visit any Colorado school districts or speak with any administrators, school board members, teachers, students, or family members in any school district in the State in connection with his work in this case. Nor did he review any Colorado school district budget or specific district policy.  Hanushek Trial Tr.5048:13-5050:2. (165)

Judge Rappaport does not seem persuaded by an economist coming into the state to rehash prior testimony about opinions formed without any specific knowledge of the case.

Kristin Waters, the former principal of the Bruce Randolph School in Denver, testified — and Defendants have argued — that she made the gains she did at Bruce Randolph with no additional funding. Bruce Randolph’s budget from FY 04-05 to FY 08-09 indicates otherwise. During her tenure, Bruce Randolph received fifteen percent more than the per pupil revenue from the State from other funding sources. (166)

Once again, “doing more with less” turns out to be something other than we’re led to believe.

This Court has previously ruled that the following issues raised by the Defendants are not at issue in this case: (1) that public education is not the only required or important state service; (2) that it is rational for the General Assembly to “control the public debt”; (3) that it is rational for the General Assembly to “further local control over instruction” and (4) that it is rational for the General Assembly to “balance appropriations among public services.”  (169)

I think this part is crucial to the discussion of the overall issues.  In other words, the state cannot, as Tara Kini described it to me, “put a right on hold.”  The state cannot excuse itself from providing a proper education due to competing demands for scarce funds.  I recognize that such a ruling has huge budgeting implications, but it does compel the state and the voters to decide if we stand by the concept of a right defined in our constitution.

A system of public school finance that fails to provide sufficient financial resources to the school districts to permit local boards of education to provide the services, instructional programs, materials, and facilities necessary to meet the substantive mandate of the Education Clause violates the Local Control Clause. (171)

In other words, the state cannot be said to meet its legal duty to provide local control to educational agencies if it fails to provide the funding necessary to exercise responsible control over the educational program.

Thus, the General Assembly has fundamentally linked the Education Clause mandate to the standards-based education system and specifically to student attainment of the academic standards as demonstrated by performance on statewide assessments. The Court in Lobato particularly noted that the State’s “education reform statutes with proficiency targets and content standards” may be used to evaluate the constitutionality of the legislature’s actions. Lobato, 218 P.3d at 372, fn. 17. At the very least, the public school finance system must be rationally related to accomplishing the requirements of the State’s own standards-based education and education accountability systems…  (173)

Now this is how accountability should work.  If the students in Colorado are not meeting standards, then it is the state first and foremost that must be held accountable.  Before we reconfigure systems to fire more teachers, before closing down failing schools, before willy-nilly reconfiguration schemes that move around the pieces and produce the same results, we must examine whether or not the state has met its obligations.  They set the standards; did they take provide the resources to allow schools, teachers, and students to meet those standards?  In this case, the answer was absolutely not.

[The] General Assembly set the statewide base funding amount by working backwards from the total funding that it intended to appropriate and carrying forward preexisting school district expenditure levels. There was no effort to analyze the relationship to the actual costs to provide an education of any particular quality. The failure to do any cost analysis and to provide for funding based on such an analysis demonstrates the irrationality of the existing school finance system. (175)

The Court therefore concludes that the entire system of public school finance, including the PSFA, categorical programs, and capital construction funding, is not rationally related to the mandate of the Education Clause. (176)

In the real world – you know, schools – we try to operate by backwards design: knowing where our students need to arrive, we determine how to get them there.  In government, they come up with an amount of money they’re willing to spend, without considering whether or not the money is adequate to reach the objective.  Judge Rappaport finds for the plaintiffs in determining that such an approach is irrational.

School superintendents, finance officers, principals, and teachers described the obstacles and limitations imposed by an irrational, inadequate, and unplanned finance system on the education they are able to provide to the children entrusted to their care.
The Defendants offered no evidence or even information to rebut the conclusion that the finance system is completely divorced from the reality of the education system enacted by the General Assembly in the name of the Education Clause. (177)

I know that if I had sat through this trial for weeks, I’d have been frustrated hearing from people who do not work in schools claiming that the people in the schools must simply make do with what little they have, and that additional resources might be nice, but non-essential.  Apparently the defense was not able to respond to the plaintiffs effectively on this matter.  You can read the details in the ruling, but here’s a summary of how the real-world inadequacies are hard to wish away with words and charts:

The Court finds that due to the irrational funding system and significant underfunding, rural and urban poverty School Districts are unable to hire, compensate, and retain effective, highly qualified teachers and administrators; to provide the curriculum, technology, textbooks, and other instructional materials necessary to meet student performance expectations; and to construct, maintain, renovate school buildings and facilities. Many of these School Districts are relegated to obsolete textbooks and materials, lack of necessary computers and internet connectivity, and dilapidated and unsafe classroom and other facilities. These School Districts have been for many years and are today unable to respond effectively to the changing demands of standards-based education.
The impact of irrational and inadequate funding is not, however, limited to rural and urban poverty School Districts. The Court finds that all School Districts are unable to provide the early childhood and kindergarten programs that are critical to student achievement. All School Districts are unable to provide the classroom time, professional training, and instructional interventions that are critical to meet the expectations of CAP4K, the Education Accountability Act, and SB 10-91. All School Districts are unable to provide the classroom time, professional training, and interventions critical to the education of under-served student populations, including students at-risk of academic failure, non-English speaking students, students with disabilities, students of minority racial and ethnic heritages, students of low-income families, and gifted and talented students. All School Districts lack the funding necessary to meet the increased expectations of the current revisions to standards-based education, and particularly CAP4K, the Education Accountability Act, and SB 191. (178) [emphasis added]

Here’s a real potential victory for Colorado students, teachers, and schools.  The plaintiffs established what is necessary for a quality education, and Judge Rappaport found the evidence strong enough to conclude that every school district in the state – and therefore, the state itself – must invest more money in order to meet consitutional obligations.

These problems are not attributable to inefficiency or inability at the school district level. There is no evidence that any School District is managing its finances ineffectively.  178 [emphasis added]

I hope states around the country are taking a close look at this ruling.  The tighten-your-belt fiscal conservatives are full of homilies about waste and thrift, but at least in this case, they couldn’t prove it in court.  I hope advocates for public education are cheered by these findings, and able to use this ruling to chart a strategy to push, prod, or if (sadly) necessary, litigate our states towards the provision of an education worthy of our ideals and our children.  In California, as in Colorado (and other states), our constitution recognizes a right and offers a guarantee; it’s time for all of us who claim to respect individual rights and state laws to now pay our bills for public education.

UPDATE [12/13/11]: John Affeldt of Public Advocates, Inc., has issued a press release regarding the ruling in Colorado, in which he states, “As in Colorado, California’s underfunded school districts are unable to provide their students with the education that is required by the state constitution and necessary for success in our society. If anything, the California constitution is even stronger than Colorado’s, because the State Supreme Court here has determined that the right to a high quality public education in our state is a fundamental right which can only be impinged by the State for very rare and compelling reasons.”

8 Comments leave one →
  1. December 12, 2011 7:05 pm

    We actually had a very similar lawsuit up here in Washington State. The state lost, and then again on appeal. The judges ruled (twice) that the state wasn’t living up to its “Paramount Duty” to adequately provide education to its citizenry, as mandated by the state constitution.

    Since that ruling we’ve seen the education budget get slashed three times.

    • David B. Cohen permalink*
      December 14, 2011 12:05 pm

      Well, that’s hardly encouraging… being right is cold comfort when the state legislature can ignore the courts that way.

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