if at first

How a lawsuit filed today in Michigan could have consequences for schools across the country

PHOTO: Erin Einhorn
Attorney Mark Rosenbaum says failure to provide quality literacy instruction to all kids is a 'pernicious form of racial inequality.'

A new lawsuit says Michigan is trampling the right of Detroit children to learn to read.

The lawyers behind the lawsuit, filed Tuesday in federal court, say it is the first of its kind in the nation — and that its outcome could have national implications.

“It’s a national scandal the number of children in major school districts who cannot read, write or have critical thinking abilities,” said attorney Mark Rosenbaum of Public Counsel, which is bringing the suit along with a team of law firms and legal advisors.

“Detroit is at the bottom,” he said, citing a national exam that shows Detroit students lagging behind their peers across the country. “But school districts all over the United States are leaving their kids in a state of functional illiteracy.”

The suit, filed in the U.S. District Court for the Eastern District of Michigan, names Gov. Rick Snyder and state education officials as defendants and demands that they provide quality literacy instruction to every Detroit child.

The suit does not put a dollar amount on what it would cost to bring quality instruction to all Detroit children. But it does highlight severe problems facing Detroit schools — in charter schools as well as schools that are part of the main city school district and the state-run Education Achievement Authority.

“Where state officials … deny access to literacy to children of color from low-income families, they perpetuate the most pernicious form of racial inequality that government can inflict on its most vulnerable and deserving population,” Rosenbaum said.

A spokeswoman for Snyder said he doesn’t comment on pending litigation.

There’s nothing new about advocates suing states in an effort to rectify inequality in schools. Just last week, a Connecticut judge ordered that state to overhaul its school system after finding that children’s rights were being violated under that state’s constitution.

But efforts to bring a similar suit in Michigan on behalf of students in Highland Park hit a dead-end two years ago when the state courts ruled that Michigan’s Constitution “merely ‘encourages’ education, but does not mandate it.

Rosenbaum, who argued the Highland Park case, said the Highland Park ruling forced attorneys to turn to the federal courts.

“In jurisdictions where the state Constitution has been interpreted not to create a fundamental right of education, there’s no other place to go than to the federal courts,” he said.

funding battle

After three years, the fight to spend more money on Tennessee schools inches toward trial

PHOTO: Jae S. Lee/The Tennessean
Chancellor Claudia Bonnyman looks over evidence during a 2015 trial. The Nashville judge is presiding over a school funding lawsuit that pits Tennessee's two largest districts against the state.

A 3-year-old lawsuit challenging Tennessee’s system of funding public schools is one step closer to trial after a Nashville judge turned back the state’s second attempt in three months to derail the case.

Davidson County Chancellor Claudia Bonnyman last week stood by her decision from July to deny the state’s motion to dismiss the suit on constitutional and legal grounds.

Her rulings mean that the case — which the state’s attorneys say “has few rivals in terms of its breadth and its cost” — is on track to go to trial next spring in Nashville.

If successful, the lawsuit could force Tennessee to invest more in public education, which at almost $5 billion already takes the largest chunk out of the state’s $37.5 billion annual budget.

The litigation pits Tennessee’s two largest districts against the state over whether it allocates enough money to provide an adequate education, particularly for urban school systems that serve more students who live in poverty, have special needs, or come from non-English-speaking homes. Memphis-based Shelby County Schools filed the suit in 2015, and Metropolitan Nashville Public Schools joined the litigation last year.

Tennessee is among more than a half dozen states where lawsuits are winding their way through the courts over the quality of schools, the adequacy of funding, and whether some students are being shortchanged, especially as states raise academic standards without always increasing funding for resources and training to help students meet those benchmarks.

Outgoing Gov. Bill Haslam says Tennessee has been an exception by adding $1.5 billion to the K-12 pot during his eight-year administration. But attorneys for Memphis and Nashville schools say the investment falls woefully short and that Tennessee isn’t meeting its constitutional obligation to provide its children with a “free, adequate, and equitable education.”

Both legal teams are lining up expert witnesses, whose testimony will provide the meat of the case. They already have filed hundreds of thousands of pages of documents and are scheduled to take depositions this fall.

“This case has been pending for over three years with the ultimate goal of getting to trial to make a ruling, and we are closer now than ever,” said attorney Charles Grant, who represents both districts through the Tennessee firm of Baker Donelson.

Tennessee still could appeal to a state court in an effort to sidestep Bonnyman’s rulings, but that would be highly unusual. A spokeswoman for Attorney General Herbert Slattery said Tuesday that the state is evaluating its options under Tennessee law.

The question of adequate school funding is different from one posed by several previous landmark cases in the 1980s and ‘90s that focused on whether Tennessee was funding schools equitably. This litigation is about the size of the funding pie, not just how it’s carved up.

In documents, the state called the adequacy argument “extraordinary” since the court is being asked, in essence, to order the Legislature to boost its spending on schools, which would “require either raising taxes or redirecting existing revenue from other state services, or possibly both.”

"We don’t think the state has ever measured what it would actually cost to provide an adequate education."Lori Patterson, attorney

Tennessee’s two earlier funding cases ended up at the State Supreme Court and forced the state to change its funding formula so that smaller and rural school systems now receive a greater share of money than they previously were getting.

If the current legal battle mirrors those cases, litigation likely will drag on for years through trial and appeals and end up again in the state’s highest court.

A trial itself could take weeks and even months. A recent trial over the adequacy of school funding in New Mexico consumed two months in court. Another trial on an adequacy claim in Connecticut lasted five months.

The decision by Nashville’s school board to join in the Memphis lawsuit slowed the process but also made the plaintiffs’ case stronger, said Lori Patterson, another attorney representing the school systems.

“They’re joining together to say education is not adequately funded from a constitutional standpoint,” she said. “We don’t think the state has ever measured what it would actually cost to provide an adequate education.”

Theirs is not the only funding lawsuit pending in Chancery Court. Months before Shelby County Schools went to court, Hamilton County’s school board and six other districts in southeast Tennessee filed their own suit asking the court to order the Legislature to address a funding formula that they say leaves schools chronically underfunded. That case appears to have stalled, however, and representatives for the state and Hamilton County Schools had no comment on its status.

You can follow our coverage of this topic here.

Colorado Votes 2018

Tax breaks for the rich and a ‘bargain with the devil’: Colorado candidates for governor spar over education

PHOTO: Denver Post
Democrat Jared Polis and Republican Walker Stapleton are competing to be Colorado's next governor.

Colorado’s Democratic candidate for governor is the founder of a charter school network, and the Republican candidate is a longtime supporter of charter schools and school choice. But their common support for charter schools belies strong differences in their education priorities.

Speaking to an audience of charter school leaders on Monday, both candidates highlighted where those policy disagreements might undermine their opponent’s stated support. U.S. Rep. Jared Polis, the Democrat, said the education policies supported by Colorado Treasurer Walker Stapleton, the Republican, would take money from public schools, including charters.

For his part, Stapleton made sure to mention that Polis is endorsed by the Colorado Education Association, the state’s largest teachers union, an alliance he called “a bargain with the devil.”

The two men spoke Monday to the Colorado League of Charter Schools’ Leadership Summit in the midst of a campaign that has been more dominated by health care and energy policy than education issues. This is in marked contrast to the Democratic primary, where candidates debated and attacked each other over degrees of support for or opposition to education reform policies.

Charter schools — publicly funded but independently run — have long enjoyed bipartisan support in Colorado as part of a broader education reform agenda. Charters have been praised for expanding options and raising achievement for students who are ill-served by traditional public schools and criticized for not serving all students and diverting money from other public schools. Teachers unions, a key Democratic constituency, have often opposed the expansion of charter schools, where teachers are generally not unionized.

The candidates discussed school funding, school choice, and Amendment 73, a corporate and income tax increase on the November ballot that would raise $1.6 billion for K-12 education.

Stapleton and Polis are competing to replace Gov. John Hickenlooper, a Democrat, who is barred by term limits from seeking re-election.

Here’s what we heard:

On Amendment 73

Polis said he does not have a position on the tax increase and that he’ll work to increase funding to public education regardless of the outcome on Amendment 73.

“It’s not exactly what I would do or how I would form it, but if the people decide to move forward with that, I would make sure those resources reach the classroom and that charter schools were treated fairly,” he said. “If the people don’t like that proposal, I’m ready to roll up my sleeves and work with Republicans and Democrats and the business community and the charter school community and teachers to end decades of underfunding and underinvestment in our public schools.”

Unlike other Democratic candidates for governor, Polis did not make rolling back portions of Colorado’s Taxpayer’s Bill of Rights to allow the state to keep money generated by existing taxes a key part of his platform. He said Monday that if elected, he would allocate significantly more money for K-12 education out of the general fund.

How much money will go to education versus other needs is a constant debate in the legislature, with Republicans arguing that roads and other infrastructure needs have lost out.

Stapleton said he is “adamantly opposed” to Amendment 73 in part because there is not enough accountability for how the money would be spent. He pointed to rising administrative costs in many school districts, costs that have outpaced growth in enrollment, as well as the share of districts’ personnel budgets that goes toward paying pension costs.

“If you don’t earmark money, money finds its way to places you never expected and maybe not in the most effective way for kids or into the classroom,” he said.

As treasurer, Stapleton advocated for changes to the pension system that put more of the responsibility for fixing unfunded liabilities on teachers and retirees. At the same time, many observers say pension costs are partially responsible for stagnation in teacher pay.

“I will do whatever I can through executive order to make it possible for everyone in this room to get line-item details on what’s being spent in any school district,” he said. “Until we get numbers and transparency, we won’t be able to get to the root of the problem.”

Colorado’s system of “local control” has granted school districts significant autonomy in everything from curriculum to salaries. Schools have to report how much they spend on administrative costs, but there is not consistency about what goes into that portion of the budget.

On expanding school choice

Colorado law allows students to enroll in any school that has room for them and can meet their needs, but some parts of the state have far fewer options than others. And transportation remains a barrier everywhere to students who want to attend schools outside their neighborhood or town.

Without offering a detailed proposal, Polis said he wants to work on solving the transportation problem for Colorado students.

“That’s going to be an important part of taking the charter school movement to the next level,” he said. “You can’t take the transportation side out if you truly want the market mechanism of choice to lift all boats and improve student performance and make sure every child has access to a world-class education.”

He also demonstrated his experience with the nitty-gritty of charter school management by promising to protect charters that provide half-day kindergarten from having to renegotiate their contracts if he’s successful in funding full-day kindergarten.

Stapleton said he would send more money to charter schools authorized by the state’s Charter School Institute. These schools received an increase in a 2017 bill that gave more money from local tax increases to district-authorized charter schools, but they depend on the legislature to allocate that money every year.

And he promised to create a new state-level authorizer for charter schools whose districts were not interested in working with them. In a brief interview after the forum, he said he isn’t sure yet what that would look like or how it would differ from the Charter School Institute. The idea is not mentioned on his website’s education page.

“I will be an advocate for another board or entity being able to authorize charter schools,” he said. “In some school districts where you have failing public schools, there is a bias amongst some people on the school board who are predisposed to not have more competition in public education. The people that end up being the losers are the people who can least afford it.”

On why the other would be bad for education

Polis said two of Stapleton’s key education proposals — a tax holiday for school supplies and education savings accounts that would let parents save money tax-free to pay for music lessons, academic tutoring, career and technical education, and preschool — wouldn’t change fundamental inequalities but would reduce the money available to fund K-12 education.

“The problem in our state is where does that money come from,” he said. “It comes from public schools. So you’re actually taking money out of public school finance to say we’re going to create a tax break for wealthy families to pay for tutors.”

Stapleton said Polis cannot be counted on to support charter schools because he has been endorsed by the state teachers union. This endorsement came after the primary, during with the Colorado Education Association endorsed one of Polis’s opponents and contributed to attack ads that questioned his support for public education.

“My opponent is fully endorsed by the CEA, and I am very concerned about the CEA’s plan for education versus … charters’ plans for education,” Stapleton said as his final unprompted comment to the crowd. “I think that it’s a bargain with the devil, and I am proud that I am not endorsed by the CEA.”

Read both candidates’ responses to Chalkbeat’s education policy questionnaire.