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


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.
     A. The General Constitutional Doctrine
     B. Specific Application to Reductions in Educational
        1. Past Court Decisions
        2. Recent and Pending Court Decisions
     A. Problems of Constitutional Enforcement in Difficult
        Economic Times
     B. A New York Case Study
        1. Implementation of the Court of Appeals' CFE
        2. Constitutional Violations
           a. Funding Reductions
           b. Deferral of Scheduled Funding Increases
           c. The Cap on Tax Increases
     A. Develop State Regulations to Implement Sound Basic
        Education Requirements
     B. Promote Efficiency and Cost Effectiveness Without
        Undermining Constitutionally-Required Student
        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


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 below constitutionally mandated levels. In other words, cost reductions in the educational sector can be constitutionally countenanced, but only if the state can show that, through successful cost effectiveness and accountability measures, a constitutionally adequate level of services can, in fact, be established and maintained at the designated funding level.

Unfortunately, the response of most governors and legislatures to current budgetary pressures has been to focus on their responsibility to balance the state budget while ignoring the fact that they have a similar constitutional obligation to ensure that all students continue to receive meaningful educational opportunities. Policymakers tend to impose mandatory cost reductions--often, across-the-board percentage reductions--without taking any steps to analyze the actual impact of these cuts on children in the classroom or assess whether their broad-based cuts will disparately impact low-income or minority students.

This article will explore in depth how the constitutional right to a sound basic education should be and can be enforced during times of severe fiscal constraint. Part II will summarize the extensive body of state constitutional law developed over the past thirty-five years that holds that states have an affirmative obligation to provide all students the opportunity for a sound basic education. In Part III, I provide an overview of the long established constitutional doctrine, consistently upheld by both the federal and state courts, that constitutional rights cannot be comprised because of financial constraints. I then discuss how this general doctrine has been applied in the specific context of the accelerating number of cases that have been filed in response to recent budget cuts in almost all of the states. Significantly, thus far in every one of the cases where the courts have directly considered the budget reduction issues, they have held that children's rights to meaningful educational opportunities must continue to be respected, despite the state's economic pressures.

However, although the courts have continued to uphold the established principle that constitutional rights cannot be compromised because of fiscal constraints, the unprecedented extent, depth, and durability of the current state budgetary difficulties is also generating a heightened degree of institutional caution by judges who are asked to challenge the appropriations authority of the executive and legislative branches. Trends in the recent cases indicate a growing tendency for courts to invoke procedural or technical grounds to avoid facing the core constitutional issues or to limit the available remedies. This trend is troublesome because it may cause some courts to abdicate their constitutional responsibilities, and without the active, principled involvement of the courts, working together with the legislative and executive branches, meaningful educational opportunity and the nation's educational policy goals cannot be realized. (25) Part IV utilizes a detailed case study of recent budget cuts in New York State to describe with specificity how recent budget actions of the governor and the state legislature have violated students' constitutional rights.

In Part V, I propose a framework for how constitutional requirements can be met, while at the same time taking into account current economic realities. This proposal is set forth in a detailed, five-part discussion of how states can achieve constitutional compliance in a cost effective manner. Essentially, this requires the state to (1) describe the essential elements of a sound basic education in operational terms, (2) promote efficiency and cost effectiveness without undermining constitutionally-required services to students (I offer specific examples of how this can be done in the areas of mandate relief, special education reform, school district consolidation, teacher retention, and pension reform), (3) undertake an adequacy study to determine a funding level that is both cost effective and educationally adequate, (4) develop a true foundation funding system that reflects the actual costs of providing educational services in a cost effective manner, and (5) establish state level accountability for adequacy mechanisms.

The conclusion emphasizes that governors, state education departments, and state legislatures have a constitutional responsibility to pursue these kinds of approaches, and the courts have an essential role to play, when necessary, to ensure that other governmental actors meet their obligations.


The education clauses of virtually all of the state constitutions contain language that requires the state to provide all of its students "an adequate public education," (26) "a thorough and efficient education," (27) a "high quality system of free public schools," (28) or a "sound basic education." (29) Since 1989, the highest courts in twenty-three states have issued decisions affirming or enforcing that right. (30)

The state courts became the sole forum for reviewing inequities in public education financing after the U.S. Supreme Court ruled in 1973 that education is not a fundamental interest under the Federal Constitution. (31) Whatever the precise constitutional language, the state courts that have examined these issues have consistently emphasized that children are entitled to meaningful educational services that will prepare them for the competitive global marketplace and to function as capable citizens in a democratic society. (32)

Plaintiffs' success in these cases has been based on evidence that demonstrated a wide-spread pattern of inequities and blatant educational inadequacies, primarily affecting low-income and minority students, in states throughout the country. For example, one poor rural Arkansas school district had a single uncertified mathematics teacher to cover all high school mathematics courses. (33) The teacher was paid $10,000 a year as a substitute teacher, which he supplemented with $5,000 annually for school bus driving. (34) Passing an examination in a laboratory science course is required for high school graduation in New York State, but thirty-one of approximately one-hundred New York City high schools had no science labs. (35)

In addition to the evidence of educational inadequacy that was revealed in the record of these cases, another major reason for plaintiffs' victories was the emergence of the standards-based education reform movement at about the same time. These reforms responded to a series of major commission reports in the 1980s that had had warned of "a rising tide of mediocrity" (36) in American education--a phenomenon that was said to be undermining the nation's ability to compete in the global economy. In response, both the federal government and the states in recent decades have emphasized the importance of articulating clear expectations concerning what children should know and be able to do when they graduate high schools Virtually all states have now adopted substantive academic content standards around which they organize their curricula, their teacher training, and their graduation requirements and examinations (38)--and by which the federal government holds them accountable through the requirements of the No Child Left Behind statute. (39)

The virtually universal adoption of standards based reform provided substantive content for the concept of equal educational opportunity. It also gave the courts a significant mechanism for understanding and implementing in contemporary terms the sometimes archaic language of the provisions in the state constitutional provisions that established public education systems. The new state standards also provided the courts feasible, judicially manageable standards and tools for implementing effective remedies in these complex funding cases. (40)

The courts generally have rejected defendants' attempts to interpret these education clauses in the state constitutions to provide only limited rights, and "the concept of an adequate education emerging from state courts ... goes well beyond a basic or minimum educational program that was considered the acceptable standard two decades ago." (41) Essentially, what the court orders have done in these cases is to require the states to ensure that schools--and especially schools in poor urban and rural areas--have the resources to provide their students a fair opportunity to meet the state's own academic expectations as set forth in the state standards and the federal accountability requirements. Accordingly, they have ordered states to revise their education finance systems to ensure that districts with low property tax wealth will have sufficient funding to provide all of their students the opportunity for a sound basic education. (42)

The basic reason why the educational funding systems in the vast majority of states have been highly inequitable is that throughout the United States school funding relies to a substantial degree on local property taxes. (43) This means that children who live in districts with low wealth and low property values--as most low income and most minority students do--will have substantially less money available to meet their educational needs. (44) In other words, in recent times, in most parts of our country, children with the greatest needs have had the fewest resources devoted to them. Rectifying such funding inequities and ensuring that all schools have an adequate level of funding have been the primary concerns of the many state courts that have enforced student rights to a sound basic education.


A. The General Constitutional Doctrine

It is a well-established doctrine in both federal and state jurisprudence that cost considerations cannot permissibly affect the enforcement of constitutional rights. The U.S. Supreme Court has specifically held that "[f]inancial constraints may not be used to justify the creation or perpetuation of constitutional violations." (45) In a variety of constitutional contexts, the lower federal courts also have consistently held that a lack of funds cannot justify the abridgement of constitutional rights. They have rejected lack-of-funds defenses in cases involving the right to a speedy trial (McCarthy v. Manson); (46) right to treatment for the mentally ill (Wyatt v. Aderholt); (47) conditions of confinement for pretrial detainees (Stone v. City and County of San Francisco); (48) and children's liberty interests under the Fourteenth Amendment to adequate shelter and treatment while in foster care placement (Johanns ex rel. Doe v. New York City Department of Social Services). (49)

The state courts have similarly ruled consistently that fiscal considerations can not undermine constitutional rights. For example, in Klostermann v. Cuomo, state defendants argued that mental health patients' constitutional and statutory claims to needed services were nonjusticiable because there "simply [was] not enough money to provide the services that plaintiffs assert[ed] [were] due them." (50) The New York Court of Appeals rejected defendants' arguments, affirming that the failure to provide suitable treatment could not be "justified by lack of staff or facilities" and finding the State's defense "particularly unconvincing when uttered in response to a claim that existing conditions violate an individual's constitutional rights." (51)

B. Specific Application to Reductions in Educational Appropriations

As the Kentucky Supreme Court has explicitly noted, the general constitutional rule that "the financial burden entailed in meeting [constitutional requirements] in no way lessens the constitutional duty" clearly applies to the educational adequacy context. (52) The Wyoming Supreme Court articulated the applicable constitutional requirement in even stronger language. It held that "all other financial considerations must yield until education is funded." (53)

Under most state constitutions, ensuring a sound basic education is an affirmative obligation of state government; indeed, in many state constitutions, public education is the only service that the constitution definitively requires the state to provide. As the Vermont Supreme Court put it:
   [E]ducation was the only governmental service considered
   worthy of constitutional status. The framers were not
   unaware of other public needs.... Indeed, many essential
   governmental services such as welfare, police and fire
   protection, transportation, and sanitation receive no mention
   whatsoever in our Constitution. Only one governmental
   service--public education--has ever been accorded
   constitutional status in Vermont. (54)

Since the right to a sound basic education is clearly established in most state constitutions as an affirmative state obligation, it also clearly follows, therefore, that constitutional compliance is a continuing obligation and that once a state has satisfied a court mandate by determining and funding the actual cost of providing a sound basic education, it must continue to do so on a permanent basis, even in times of financial constraint. Children will not be receiving a sound, basic education if the amount and quality of services to which they are entitled are provided one year and then taken away the next. (55)

1. Past Court Decisions

Over the years, a number of state courts have had occasion to apply this general doctrine to the specific circumstances of budget cuts affecting public education in times of recession. The importance of the established doctrine that constitutional rights can not be compromised because of fiscal constraints has been vividly underscored by the fact that every one of the courts that has directly ruled on the core constitutional issue has affirmed children's rights to maintenance of constitutionally mandated services despite the state's claims of financial hardship.

The first judicial review of a governor's power to cut educational funding during a fiscal crisis arose in the 1980s in the state of Washington. (56) At that time, the Seattle School District sought an injunction to stop the governor from applying to them an executive order that instituted an across-the-board expenditure reduction program in response to a financial exigency. (57) There was a four to four split among the justices regarding this application. Four of the justices voted to issue the requested injunction because "[t]o allow across-the-board reductions completely negates the mandatory language of our constitution," (58) and because "the Governor has no authority to curtail [school funds] if they are designated to supply the funds for 'basic education.' The Governor must first secure a constitutional amendment if he feels that an emergency exists to justify such drastic action." (59) The four other justices declined to issue the requested injunction, without reaching the constitutional issue, because they held that the plaintiffs had not provided sufficient proof to establish the precise dollar amount of funding to which they claimed they were entitled. (60) Because the court was equally divided, the injunction did not issue.

This was not, however, the end of the matter. The next year, Seattle and twenty-five other districts renewed their claim for relief from the budget cuts in the Superior Court, Thurston County. (61) After an extensive trial, the judge ruled that the across the board funding reduction, as applied to basic education programs, was unconstitutional, stating:
   The educational programs necessary to meet the current
   needs of the State's school children under Article IX,
   [sections] 1 and 2, of the State Constitution must be funded
   by the Legislature as the State's first priority, before any
   statutory programs are funded. Once the Legislature fully
   funds such programs ... the Legislature cannot thereafter
   reduce the funding for those programs below the established
   constitutional minimums.... (62)

Furthermore, he expanded the constitutional definition of a "basic education" to include special education, transitional bilingual, vocational, and remedial programs, as well as pupil transportation. (63) The state did not appeal this decision, and the legislature subsequently revised the Basic Education Law to include these additional programs. (64)

In New Hampshire, the state supreme court struck down a statute that permitted the state board of education to approve for a reasonable period of time a high school that does not fully meet the requirements for an approved school if, in its judgment, the financial condition of the school district warrants a delay in full compliance because of circumstances such as the reduction in the local tax base or the closing of a local industry. The court held that:
   Excused noncompliance with the minimum standards for
   financial reasons alone directly conflicts with the
   constitutional command that the State must guarantee
   sufficient funding to ensure that school districts can provide
   a constitutionally adequate education. As we have
   repeatedly held, it is the State's duty to guarantee the
   funding necessary to provide a constitutionally adequate
   education to every educable child in the public schools in the
   State. (65)

Emphasizing the preferred constitutional status of public education, the West Virginia Supreme Court of Appeals declared the state's 1987-88 budget to be unconstitutional after the governor had subjected education appropriations to a 2% cut applicable to all state agencies in order to balance the state budget. (66)

In California, the California Supreme Court upheld a preliminary injunction requiring the state to ensure the continuation of educational services for students in a school district that had run out of funds and announced plans to terminate the semester six weeks early. (67)

The Court held that the state had ultimate responsibility for ensuring students' rights to an equal educational opportunity, and "that the District's impending failure to complete the final six weeks of its scheduled school term would cause educational disruption sufficient to deprive District students of basic educational equality." (68)

The most extensive consideration of the issue of maintaining constitutionally mandated programs during times of fiscal constraint occurred in a series of cases over the last decade in New Jersey. There, the state repeatedly asked the New Jersey Supreme Court to relax constitutional requirements because of budgetary pressures. The first such instance occurred in 2002 when the state department of education asked the court to allow it to limit funding to the prior year's level for certain supplemental compensatory services programs in urban school districts that the court had ordered in the state's long-pending education adequacy litigation. (69) The court, although allowing the department some flexibility in the programmatic rules and initial funding assumptions, refused to impose the requested funding cap. (70)

A year later, the department of education again asked the court to maintain the budget for the supplemental programs at the previous year's level while it evaluated the programs' effectiveness and efficiency. (71) The court agreed "to treat the 2003-2004 school fiscal year as a maintenance year," in which no new programs would be introduced, but it added the following important proviso: "A maintenance budget shall mean that a district will be funded at a level such that the district can implement current approved programs, services, and positions and therefore includes documented increases in ... contracted salaries, health benefits, and special education tuition." (72) In other words, although the court was willing to slow the pace of introduction of new programs and facilitate the state's efforts to evaluate the effectiveness of the existing programs, it insisted that the programs that had already been put into place must be maintained, at full strength, and that if additional funds were needed to cover unavoidable cost increases, the state would need to cover those additional costs.

The court's insistence on the integrity of constitutionally required programs was reiterated in 2006 when the state asked that state aid for the next year remain at the previous year's level because of the continuing fiscal exigencies that the state was experiencing. (73) The court agreed that the governor's flat budget should be the basic starting point for district budgets for the coming year and that districts should work with the department of education to maintain "demonstrably needed Abbott programs" within these fiscal constraints, but it also held "that the districts shall have a right to appeal inadequate funding for such demonstrably needed Abbott programs" and to show that a "demonstrably needed program, position, or service will be substantially impaired due to insufficient funding." (74)

In sum, then, all of the courts that considered cases involving reductions in education funding in the past have endorsed the well-established constitutional doctrine that constitutional rights must be upheld despite the state's fiscal circumstances. However, half of the judges of the Washington Supreme Court exhibited a degree of institutional caution by finding a procedural reason to avoid facing the core constitutional issue. (75) Moreover, the New Jersey Supreme Court, although refusing to allow the state to ignore constitutional requirements because of budget pressures, did take the state's fiscal circumstances into account in agreeing to facilitate the state's efforts to promote cost effectiveness and to relax the pace of the introduction of new programs, so long as existing programs were fully funded, including inflationary cost increases necessary to maintain the level of services. (76)

2. Recent and Pending Court Decisions

As a result of the depth of the current state budgetary shortfalls and the expectation that these budget constraints are likely to persist for the foreseeable future, since 2008, an increasing number of legal challenges have been lodged against reductions in education budgets. So far, courts have issued five decisions (77) that speak directly to these issues, and at least ten additional cases are now pending. (78) Consistent with the past pattern, all of the five court decisions or settlements that have upheld the basic constitutional rights that students' rights to adequate services cannot be set aside because of fiscal constraints, but, at the same time, most of these cases reveal a degree of judicial caution in utilizing procedural mechanisms to limit the impact of the rulings. (79)

In two of these cases, state courts directly invalidated major budgetary reductions enacted by their state legislatures. (80) The first was the New Jersey Supreme Court's strongly-worded rejection of Governor Chris Christie's attempt to reduce educational expenditures because of state budget deficits. The Court held that funding for the thirty-one poor urban Abbott districts must be increased for the current school year by approximately $500 million. (81) The thrust of the plaintiffs' complaint was that the current state budget failed to fund schools at the levels required by the 2008 School Funding Reform Act ("SFRA"). (82)

Two years earlier, in asking for the Court to approve the SFRA formula and terminate other outstanding compliance orders in the Abbott case, the Attorney General had assured the Court that the state would fully fund the new formula; he, in fact, had suggested that full funding be made a condition of the court's approval. (83) Citing those assurances, the Court held in its recent decision that:
   [o]ur grant of relief was clear and it was exacting: It came
   with express mandates. We required full funding, and a
   retooling of SFRA's formula's parts, at the designated
   mileposts in the formula's implementation. When we
   granted the State the relief it requested, this Court did not
   authorize the State to replace the parity remedy with some
   underfunded version of SFRA. (84)

The court rejected the state's argument that fiscal distress necessitated reducing the aggregate amount of school aid that SFRA would have required. (85) It also gave short shrift to the state's legal argument that the court must defer to the legislature because the legislative authority over appropriations is plenary pursuant to the appropriations clause of the state constitution. (86) It held that the legislature's appropriation power cannot be invoked when the state "purports to operate to suspend not a statutory right, but rather a constitutional obligation," (87) and that "[l]ike anyone else, the State is not free to walk away from judicial orders enforcing constitutional obligations." (88)

An extensive evidentiary record had been compiled in this case by Judge Peter E. Doyne of Bergen County Court, who the state supreme court had designated as a special master to conduct a hearing to determine "whether school funding through SFRA, at current levels, can provide for the constitutionally mandated thorough and efficient education for New Jersey school children." (89) Judge Doyle's report reviewed the impact of the approximately $1.6 billion in cuts to districts throughout the state through testimony provided by six school superintendents who had been called as witnesses both by the state and by the plaintiffs. (90) He concluded that the state had failed to meet its burden to show that, despite the budget cuts, the state was providing students throughout the state the "thorough and efficient education" required by the state's constitution. (91) In fact, he found that the superintendents were nearly unanimous in their concern that they could not properly provide an opportunity for all their students to meet the state's academic standards with the reduced levels of state aid. (92) He also concluded that despite the State's best efforts, the reductions fell more heavily upon high need districts and the children educated within those districts. (93)

Despite the fact that its remand order had asked the Special Master to review the statewide impact of budget cuts, and most of the evidence in the record pertained to non-Abbott districts--only one of the six superintendents who testified represented an Abbott district--the majority of the Court explicitly limited the holding to the thirty-one Abbott districts. (94) This meant that the state would be required to restore the approximately $500 million in budget reductions that pertained to these districts, but not the additional $1.1 billion in cuts that affected hundreds of other districts around the state. (95) Justifying that position, Judge LaVecchia, writing for the majority, held that:
   We are well aware of the importance of a predictable stream
   of education funding for any school district. And, the record
   developed provides a sense of the unpredictability and
   disruption to instructional planning, services, and
   programming that has resulted in districts of all
   socioeconomic types due to the Legislature's failure to abide
   by SFRA's formulaic terms. However, our authority to act in
   this matter is limited. The extent of this Court's jurisdiction
   in this matter starts and ends with the series of litigated
   proceedings that preceded this action. Those actions
   delineated the responsibility of the State to the
   representative plaintiff schoolchildren from the Abbott
   districts. (96)

A few months after the New Jersey ruling, a trial court judge in North Carolina ordered that state to cease enforcing that part of a recently-enacted budget bill that would have substantially reduced funding for pre-school services throughout the state. (97) The 2011 budget bill had capped enrollment at twenty percent for state-funded at-risk children participating in the state's prekindergarten program, formerly known as "More-At-Four" and now known as the "N.C. Pre-Kindergarten Program" ("NCPK"). (98) It also stipulated that families who are not "at-risk" be charged co-payments, and cut the program's budget by $32 million. (99)

The judge, Howard E. Manning, Jr., had previously held that as part of their constitutional right to the opportunity to obtain a sound basic education, at-risk four year olds had a right to obtain pre-school educational services. (100) The North Carolina Supreme Court agreed that the state constitution entitled at-risk children to pre-school services, but at the same time it also held that the state had the discretion to determine the type of services children would receive to prepare them for school entry. (101) Since that time, the state has chosen "More-At-Four" as its prime vehicle for meeting this constitutional obligation, and more than 35,000 were enrolled in that program. (102)

After summarizing the extensive past rulings and clear precedents regarding the right of at risk children to state-funded early childhood services, Judge Manning held that:
   [The] high quality prekindergarten program may not be
   dismantled, nor may the prekindergarten services provided
   to at-risk 4 year olds throughout North Carolina be reduced,
   diminished in quality or eligibility for the prekindergarten
   program be restricted by the erection of artificial or actual
   barriers enacted into law. (103)

He also specifically invalidated the twenty percent cap restriction and further decreed that "[t]he State of North Carolina shall not deny any eligible at-risk four year old admission to the [NCPK] and shall provide the quality services of the NCPK to any eligible at-risk four year old that applies." (104)

In Colorado, a state court judge issued a sweeping, 183-page ruling in December, 2011 which held that the state had failed to establish and maintain a "thorough and uniform" system of public education as required by the state constitution. (105) The judge found that "[d]ue to lack of access to adequate financial resources, the Plaintiff School Districts ... are unable to provide the educational programs, services, instructional materials, equipment, technology, and capital facilities necessary to assure all children an education that meets the mandates of the Education Clause and standards-based education." (106)

In the course of her opinion, Denver District Court Judge Sheila A. Rappaport made clear that the state's current budget problems did not justify the inadequate funding level:
   In the past two years, the General Assembly, through the
   implementation of a negative factor, has actually decreased
   public school funding by what now totals nearly one billion
   dollars. The amount of the budget cuts and the method by
   which they were implemented are completely unrelated to
   the costs of providing the mandated standards-based
   education system. The budget cuts have aggravated the
   irrationality of the finance system by arbitrarily reducing
   funding with no educational rationale whatsoever. (107)

In her pre-trial rulings, Judge Rappaport also rejected the state's attempt to introduce evidence concerning the impact of the state's economy into the trial, and she excluded from the trial evidence concerning the impact of revenue restrictions imposed by the "Taxpayers Bill of Rights" ("TABOR") provision of the state constitution on educational appropriations. (108)

Two recent California litigations affirmed the sanctity of student rights to meaningful educational opportunity despite the state's severe fiscal crisis. (109) In the first case, Reed v. State of California a Los Angeles trial judge issued a preliminary injunction in 2010 that prohibited the school district from implementing any future lay-offs of classroom teachers at three middle schools with high numbers of at-risk students. (110) The City and the State then entered into a settlement that extended the no lay-off ban to forty-five other high-needs schools. (111)

Major reductions in state aid had caused the Los Angeles Unified School District to lay off thousands of teachers in 2009 and 2010, and the district's seniority-order reduction practices had led to the dismissal of a highly disproportionate number of teachers in the high needs schools attended by the plaintiffs. (112) Specifically, the court found that during the 2009 lay-offs, dismissal notices were sent to sixty percent of the teachers at one of the schools attended by the plaintiff students, and forty-six percent and forty-eight of the teachers at the two other schools; district wide only eighteen percent of all teachers had received such notices. (113) Because of their difficulty in attracting and retaining effective teachers, these schools had invested substantial efforts and resources in training their young staffs and, in plaintiffs' view, many of the teachers who were laid off were conscientious and effective teachers whose efforts had resulted in marked improvements in student achievement. (114)

The court found that the lay-offs had a substantial detrimental impact on instruction at these schools. (115) Specifically, it concluded that the schools had suffered "extreme and disruptive turnover," (116) that the staffing reductions caused teacher mis-assignments (i.e., teachers assigned to courses for which they do not have the requisite training or certification) "to skyrocket," (117) and that the teacher turnover had resulted in students missing instruction on key topics in core academic subjects. (118)

Accordingly, the court set aside the applicable collective bargaining and statutory provisions that called for seniority order lay-offs, and banned any lay-offs at the subject schools in any future reductions in force, holding that the Los Angeles school district "could not bargain away students' constitutional rights." (119)

Under a settlement entered into a few months later, up to forty-five additional schools in Los Angeles that have high teacher turnover and "are demonstrating growth over time," or are new schools--that are likely to be "negatively and disproportionately affected by teacher turnover"--will be protected from lay-offs in the event of future district-wide reductions in force. (120) The settlement also requires the district to ensure that teachers hired to fill any vacancies at the targeted schools are fully credentialed to teach the classes to which they are assigned, (121) and to develop retention incentive programs for teachers and administrators at those schools. (122) The district will distribute layoffs as evenly as possible throughout the rest of the district to limit the impact of the exemption of teachers in these forty-five schools from lay-offs, but teachers at other schools may still be terminated in accordance with the existing seniority order layoff contractual provisions and state regulations. (123)

The second California case, which resulted in a pre-trial settlement, involved allegations that school districts in various parts of the state were requiring students to pay fees in order to take part in constitutionally-required courses and school activities. (124) Specifically, plaintiffs in Doe v. State of California claimed that in at least thirty-two school districts, students had to pay fees to enroll in art, music, foreign language, and a wide variety of AP courses and also had to pay to take AP exams, even though completing the exam is a course requirement that affects the students' grades. (125) In addition, students in many of these districts were required to pay lab fees and purchase textbooks, workbooks, and items such as graphing calculators and USB flash drives. (126) According to the complaint, students who were unable to pay the fees or purchase the materials were disadvantaged academically and overtly humiliated, even if ultimately the school waived the charges for them. (127)

The California Supreme Court had previously held in a 1984 case that Article IX section five of the California Constitution, provides for "a system of common schools by which a free school shall be kept up and supported in each district," (128) and that "[a] school which conditions a student's participation in educational activities upon the payment of a fee clearly is not a 'free school." (129) The court at that time also declared "all educational activities--curricular or 'extracurricular'--offered to students by school districts fall within the free school guarantee." (130) It further made clear that student participation in any school activities cannot be conditioned upon application for a special waiver, (131) and that "financial hardship is no defense to a violation of the free school guarantee." (132)

In light of the clarity of the state Supreme Court's precedent on this issue, the State of California and then Governor Arnold Schwarzenegger, quickly settled the case despite the intense fiscal pressures that had caused these school districts to impose these fees in order to balance their budgets. (133) The state agreed to promptly send a letter and guidance document to all school superintendents informing them that "whenever a public school offers a curricular or extracurricular program to students, the California Constitution requires that the school provide all materials, supplies, and equipment--whether they are necessary or supplementary to the program--to students free of charge."' (134) The State also agreed to seek legislative and regulatory revisions that would spell out these legal requirements and would provide a complaint process for parents who believed that a school district is violating the constitutional prohibitions. (135) Jerry Brown, Schwarznegger's successor as governor, subsequently vetoed the legislature's enactment of the statutory provisions agreed to in the settlement, although he acknowledged that imposing school fees is illegal. (136)
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Title Annotation: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
Author:Rebell, Michael A.
Publication:Albany Law Review
Date:Jun 22, 2012
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