I have said before in my scholarship that Washington’s Supreme Court is one of the more interesting in the country in the area of school finance because, rather than issuing under-theorized accounts of rights to education as other state courts have, Washington’s Court, in its initial school finance decision (Seattle School District No. 1 v. State, 90 Wash. 2d 476, 585 P.2d 71 (Wash. 1978)), carefully derived from the education duty provision in its state constitution a correlative individual right to an education held by each Washington resident child. In McCleary, the Court reaffirmed this holding from Seattle and used it as the justification for stringent judicial review of the legislature’s past actions, particularly its actions in cutting expenditures on certain budgetary items and forcing these expenditures to be funded through less-reliable local sources. A few general principles emerge from the decision:
First, the Court developed a way to review budgetary cuts for their rationality that is, I think, either new or newly explicit among school finance cases. The Court explained that, where the legislature cuts part of the education budget, it may not justify such a cut based on lack of funds availability alone (clearly a garden-variety rational basis that would justify cuts to any other budget item). Rather, the legislature must justify all cuts to the education budget with education-related reasons, in effect adopting some of Helen Hershkoff’s earlier proposed metrics for constitutional review of affirmative rights. The upshot of this innovation is that something more than a rational basis is required. The required standard seems to be more of a “rational direction” test—Is the cut or expenditure decision rationally directed at the constitutionally prescribed goal (“ample support” for education, in Washington’s case)?
Second, the Court reversed the lower court’s order that the legislature commission a study of the true cost of providing an adequate education, a familiar, almost pro forma remedy that every school finance plaintiff group seeks these days. In my view, this was a very sound reversal. The legislature, in the preceding years, had commissioned several such studies, each at a cost of over 1 million dollars. The problem was not the state’s failure to determine what a “basic education” costs, but the failure to fund it fully once determined.
Third, the Court's decision revealed that evidence of inequality is far more important to judges in adequacy cases than evidence of the overall quality of the system, especially in the form of test scores and other outputs (echoing portions of recent work by James Ryan). Although the Court defined the basic content of a sufficient education by referencing the state content standards, the chief problem the Court saw with the legislature's existing program was that localities were required (with varying levels of effort based on local property wealth) to fund large portions of the achievement of the stated standards. That's an equity analysis, not an adequacy analysis.
These are what I view to be the positive developments in the case, but there were also a couple of negative—or at least disappointing—trends that generally exist in the school finance cases that were adopted and continued in this case. First, the Court engaged and adopted its prior holding that the education duty set forth in the state constitution is a duty that falls equally on all branches of state government. Courts around the country have seized on non-specific language in their education articles to justify judicial review of legislative policy priority weighing by holding similarly. Simply put, if the duty rests on all three branches, then no branch deserves any deference, especially not total deference. But this makes absolutely no sense in practice. A duty, to be meaningful, must be enforceable. Given that principle, what if some group of residents is unsatisfied with the Court’s resolution of this matter? Since the duty rests equally on the Court’s shoulders, may that group now sue the Court for violating the duty? Will the Court be the ultimate judge in this case? I think it is preferable for courts to justify judicial reveiw without confusing the governmental actor that bears the burden of an affirmative constitutional duty.
Second, although the Washington Court did an admirable job in Seattle of using the scholarship of Wesley Newcomb Hohfeld to derive a defensible conception of an individual positive right to education from the affirmative duty set forth in the state constitution, it approached the McCreary case without any regard to individual harm whatsoever. In short, individual rights were meaningless—other than rhetorically—in the decision process. I continue to believe that recognizing individual rights, but failing to consider individual harms and individual remedies, does violence to the idea of rights in general.
There’s lots more to say about this important decision, but these are my first impressions. I welcome comments, corrections, addenda, etc.
]]>I have used this in my church/state teaching now for years, but this is the first time I saw the entire 2 hour special in a single YouTube video (YouTube recently changed its rule to allow uploading of content over 15 min. in duration). I use the very first part, the teaser trailer, to set up a vivid church/state & instructional issues discussion that always goes well.
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Justin and I visited the University of South Carolina today. We were in Columbia for a friend's (Assistant Professor Jesulon Gibbs Brown) wedding. We toured the campus. The highlights were the Colleges of Education and Law. I think that is because we both teach education law. One highlight is that we found an Institute for Education Law in USC's Law School. Of course no one was actually there since it's break, but we think that is where the Journal of Law and Education is located.
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The faculty participated in a job action on August 22nd after our contract expired on June 30, 2011. Because of a new Michigan law, CMU refused to pay any wage increases to faculty members and shifted the cost of health care premiums to faculty members once the contract expired. Negotiations have been ongoing since last spring, and a fact finder was called in to assist with the process. His report was issued last month. CMU offered to accept their interpretation of the fact finder's recommendations. The FA didn't agree with the administration's position and rejected the offer but countered with terms for a one year contract. This was rejected by CMU.
The injunction against the FA engaging in job actions expired on Wednesday and a hearing with Judge Chamberlain was scheduled yesterday on both the extension of the injunction and the legality of the law preventing wage increases and shifting health care benefit cost increases to public employees when their collective bargaining agreements expire. These rulings were not made since a TA was reached.
Following this situation has been my introduction to the collective bargaining process. I'm going to reserve judgment on whether I think this process is beneficial until I see the final offer compared to the initial offers and the overall impact on the university's culture. My experience thus far is that CMU has been a wonderful place to work with great students, dedicated faculty members and an adminstration that has many faculty friendly policies in place. It's been tense on campus this fall with faculty members so unhappy about not having contracts and the terms that were being offered. I think it's helped with unity among faculty members but definitely hurt faculty/administrator relationships. We'll see how far this potential agreement goes to repair relationships.
Here's a link to Michigan's PA 54: http://www.legislature.mi.gov/documents/2011-2012/publicact/pdf/2011-PA-0054.pdf
]]>University of Kentucky College of Law
James and Mary Lassiter Endowed Distinguished Visiting Professor
The University of Kentucky College of Law seeks applications and nominations for the James and Mary Lassiter Endowed Distinguished Visiting Professor for one semester of the 2012-13 academic year. The Lassiter Distinguished Visiting Professor recognizes a faculty member who has demonstrated outstanding achievement in his or her field and is not limited by subject matter.
JOB QUALIFICATIONS: Applicants or nominees should have a record of scholarly excellence and of strong classroom teaching. The Lassiter Distinguished Visitor will teach one or two courses and will be encouraged to present workshops on research and participate broadly in the intellectual life of the College of Law.
The University of Kentucky College of Law is committed to diversifying its community and consequently welcomes expressions of interest from, or nominations of, professors who contribute to that diversity. The University of Kentucky is an equal opportunity campus and encourages any candidates who will contribute to the excellence of the academic community through their research, teaching, and service.
APPLICATION PROCEDURE: Review of candidates will begin upon receipt. Expressions of interest and nominations should be submitted no later than January 23, 2012 and should be directed to:
Prof. Bob Schwemm
Ashland Research Professor of Law
Chair, Lassiter Search Committee
University of Kentucky College of Law
209 Law Building
Lexington, KY 40506-0048
Schwemmr@uky.edu
859.257.6013
So, some thoughts regarding this blog:
1. Great presenting with Mark Walsh of Ed Week and the School Law Blog, again. We were invited to present a session on technology and blogging and we had a great crowd. For those of you at the session, a post is coming here with some of the data and links we mentioned in the session. But, the session was interesting in that not only was it very well attended but it was also attended with generally enthusiastic crowd that was excited to see new ideas with technology.
2. ELA seems to be turning a page regarding their acceptance of technology. For years (and still continuing) I think people looked at me and other techy folks as a little crazy. We (I) was outside the norm and therefore someone to either be ignored or to marginalize. Well, something has changed this year. Now, there is not just acceptance but nearly genuine excitement about what we can accomplish using some of these new tools. Other contributing professors are also pushing the Edjurist and taking some ownership. This development is so extremely heart warming. Obviously, personally, having developed this resource has been a passionate love affair, but it has always been a risk. To see it transition to something that is mainstream and something that other scholars feel is a core resource to our field is almost enough to bring me to tears.
3. Because of that, I am having some serious thoughts about making some big changes here at the Edjurist. Now that I have another outlet to put some of my more controversial (and less research based) thoughts on technology and education at Education Recoded (please, go check that out and add it to your reader) it is probably time for the Edjurist to mature a little bit into something a bit more mainstream and more scholarly. It may also be time to consider a more formal partnership with ELA or another organization (I'm listening to offers) that will provide a bit more of a formal justification for adding these posts to people's vitas (which is the end-all for keeping your job as a professor).
4. Some of the changes I am considering are:
So, if anyone wants to chime in on some rethinking here, please let me know either in a comment or just personally.
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“We cannot make an opinion or judgment call on whether a hug is appropriate or not. It’s very difficult to police that on campus,” Christine Davis, the public information officer for Brevard County Public Schools, told ABC News.
Davis said the school puts policies and procedures in place to help keep the students focused on learning.
Really? If you can't make a call between an appropriate hug and an inappropriate hug you should be fired. It tells me that you don't know kids and that you don't know their lives. Is it harder to make all those judgment calls? Sure. But, that's what you get paid to do, so stop shirking your responsiblity through made-up policies (no law requires anything like this).
Want to know why our school systems can't produce the passionate, dedicated, emotionally committed leaders of the next century ... it's because we feel we have to sanitize our schools and students away from such crimes against humanity as hugs between friends.
When (it's probably not an if) these questionable school leaders lose their jobs ... "no hug for you."
]]>Personal Updates:
1. I'm writing for a new blog at BigThink called Education Recoded. It is sort of a second generation project for me as I am really beginning to find my unique voice. The title I think sort of sums up my intentions there, so read this post as to the great project I'm undertaking. BigThink has a mass audience, so it is a pleasure and honor to write there (I promise I'll keep writing here as well).
2. I have some new model legislation out on virtual schooling. Check that out. Thanks to NEPC and their leaders Kevin Welner and Gene Glass for including me. That was a fun project. I have some more on virtual and supplemental online education coming out soon, so I'll update on that as well.
Team Updates:
The CASTLE Directors at UK. This team is rocking! 1. CASTLE. We're rolling now. Scott has a new book out. We have a new policy brief series, the first of which went up last week. Two of our directors are doing consulting work in Cambodia as I post this with additional countries under negotiation. We are hosting 2 outstanding visiting scholars this semester. We are building an outstanding staff. We are on the cusp of launching new programs at UK (couple more approvals to secure). It is going as well as I could have hoped for and we are just getting rolling, so ... smiles.
2. Law and Policy Group. As I've mentioned on here before, we have an extremely strong education law and policy group at UK and that group is finding their footing and starting to produce results. Our first conference last year was successful, so we are doing a second so if you are in or around Kentucky, come check that out. Also, Neal Hutchens has led the effort to develop a new refereed journal, the Kentucky Journal of Higher Education Policy and Practice and, of course, don't forget the new higher education group blog that is rolling along impressively: HigherEducationLaw.org. This group is starting to come together nicely.
Site Updates:
1. I changed the commenting platform to Disqus. I hate to lose access to all the old comments (I still have access if you need them), but the spamming was killing me and I think Disqus is a better filter for that kind of stuff. Plus, Disqus is a much more powerful platform. You can login with multiple existing web ID's and you can track and reply to comments even across multiple different blogs and platforms. It is a huge improvement, so it was time to pull the trigger on that.
2. I've disabled much of the page content I had at the top. With all the other stuff already mentioned in this post and in my push toward tenure over the next year or two, I do not have time to keep all of those updated and accurate. So, for now at least, I think it is best to just put those on hold.
]]>A couple of initial points based on the linked story. First, this is not a part of the longstanding Edgewood v. Kirby litigation, the last iteration of which was decided by the Texas Supreme Court in 2005. It is a new case. Second, it is difficult to be sure from the summary, but the claims appear to be based more on "equity" theories than on "adequacy" theories, though there is a nod to adequacy at the end of the story.
Any readers with more specific information are invited to comment.
]]>In reading the story what amazed me, however, was that the state has a contract with the Pearson to pay the company a guaranteed $7.6 million thus far and the amount could reach $64.6 million to provide testing services through 2018, according to news accounts. In terms of educational policy, I just can't help but wonder if we may have reached a certain level of accountability obsession. If the state is spending this much on one set of tests, how much does the rest of the state's education budget go to accountability measures and systems? At what point do we actually get more bang for our education bucks by spending those funds elsewhere, such as towards classroom instruction?
]]>Now, what does this have to do with education law? Well, two major things. First, as with almost all categories of law, the majority of education related disputes are resolved in state judicial systems. A funding crisis in those systems will inevitably lead to a crisis in educational dispute resolution. Second, as many of you know, to the extent that "education rights" exist in our system, these rights are primarily state constitutional rights. Where state judicial systems are hampered, the development of these rights is also hampered. The issue of state court funding is therefore a vital one for those interested in education policy and law.
I encourage anyone with an interest in these issues of access to justice (and the ability to be in beautiful Lexington, KY this Friday and Saturday) to attend the symposium.
]]>First, the state defendant won this one on the merits, based on the evidence (particularly, the lack of evidence of causation--more on that below). This, I think, is the first adequacy case of which this can be said. The recent state victories in Indiana and Missouri were not truly of the same character, both being based on a general approach to judicial deference bordering on the political question doctrine. The recent Oregon decision, also a state merits victory, was based on a quirky textual feature of the Oregon Constitution that does not exist in any other. The South Dakota decision, while deferential to legislative policy choices (especially in stating the standard for proving unconstitutionality as "beyond a reasonable doubt"), is based on a much deeper review of the evidence.
Second, and relatedly, the opinion is very well-reasoned and fair in its explanation (I, of course, take no position as to whether the court is representing the state of the record evidence properly, as I was not involved in the trial and have no access to the record on appeal). It takes the arguments of both the state and the plaintiffs very seriously, and is does not appear to place any kind of thumb on the evidentiary scale for either party. This approach is not necessarily new, but this is one of very few school finance decisions on the merits where a state supreme court has gone out of its way to show the readers of its opinion that both sides indeed presented good arguments. I think that goes a long way toward fostering the opinion's perceived legitimacy.
Finally, and most importantly, the South Dakota decision is also the first that has required the plaintiffs to establish a causal link between the many educational deficiencies that they were able to establish in the evidence and the action or inaction of the state government. As perennial state-side litigator Al Lindseth has pointed out both in scholarship and in court, in adequacy cases in which plaintiffs prevail, there is little to no discussion of causation. This South Dakota decision hinges almost completely on the insufficiency of evidence of causation. This feature could make the South Dakota decision a very impactful one.
I look forward to seeing how this opinion works its way into the scholarship.
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I've really enjoyed being a contributor on Edjurist and plan to stay on as long as I can keep stealing the password from Justin. My hope is that the two sites can reference each other often and share content of interest to both audiences. For those of you interested in higher education legal issues, I hope that, along with the Edjurist, you'll add HigherEducationLaw to the blogs that you follow.
And now that I've got the site up and going, I also plan to be able to pick up the pace with posting on here.
]]>Of course, guys like this make everyone else look bad :)
Anyway, back on point, as a person who was fond of my regional superintendent while working in Illinois, this is a real shame. Were there too many regions. Probably. Was their bloating and waste at this level? Yeah. But, did Illinois need to eliminate the entire structure? Surely not.
I'm sure the legislature and governor's office will negotiate some new regional structuring, but sometimes Illinois just can't help but embarass itself in the process.
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