Funding fights

States often get sued over school funding. Here’s what makes Tennessee stand out.

It’s official: three of Tennessee’s four urban school districts are suing the state for more money.

Last week, Metropolitan Nashville Public Schools became the latest district taking the state to court, following on the heels of litigation already in process by school systems in Memphis and Chattanooga. The districts’ situations differ enough to justify separate suits, but the underlying message is the same: local school leaders believe Tennessee isn’t providing enough money to properly educate students.

Their crusades may be successful, based on the track record of similar cases across the country. And national school funding experts also side with the districts. They say Tennessee’s funding formula is badly in need of updates.

Similar lawsuits have been filed in 45 of 50 states. The cases started cropping up after 1973, when the U.S. Supreme Court ruled in San Antonio Independent School District v. Rodriguez that education is not a federal right, and therefore school funding is entirely a state matter. From then on, if school leaders believed their state legislature wasn’t giving them enough money to educate students properly, they could go to their state courts as a recourse.

About 60 percent of school funding cases have gone to trial, and states have lost the vast majority of those, says Michael Rebell, an attorney who has represented districts in New York State in funding cases.

“In almost every state constitution, there’s an explicit cause that guarantees students some kind of an adequate education … so you have a very strong legal anchor to begin with,” Rebell said. “And when you give evidence of what’s going on in schools, particularly in underfunded areas, judges tend to be shocked at conditions in these schools.”

Most cases thrown out were due to a judge who said school funding was not under the court’s purview and should be handled by the legislative and executive branches. That’s an argument Tennessee Rep. Bill Dunn made during the most recent legislative session when he unsuccessfully lobbied for a constitutional amendment barring courts from interfering in schools.

The separation-of-powers argument hasn’t held much water in Tennessee, though. State courts heard three historic school funding cases from the late 1980s to the early 2000s, siding with local districts every time. Those cases keyed in on built-in inequities in the state’s funding formula that cause some districts to get more money than others.

New focus

The latest round of lawsuits, while all different, zoom in on inadequacy and argue that Tennessee is not funding its schools based on the true cost of educating today’s students.

The move from a focus on equity to adequacy is a trend nationwide, abetted by the move toward more rigorous academic standards, Rebell said. Districts are no longer as focused on whether they are getting more or less than other districts, but if they are getting enough money to help their students meet standards — in other words, to provide kids with an adequate education.

“Every school should have enough resources to meet adequacy, however we define it,” he said.

And when it comes to providing adequate funding to educate students based on today’s standards, national experts say Tennessee isn’t.

Tennessee uses a complex formula known as the Basic Education Program, or BEP, to generate and distribute state education dollars to public schools to provide a basic level of education. But critics charge that the formula, developed more than a quarter century ago in response to one funding lawsuit against the state, falls short on two fronts: 1) it doesn’t properly account for the cost of educating students in the 21st century; and 2) Tennessee doesn’t spend enough money on schools, period.

Tennessee has made historical increases in education spending under Gov. Bill Haslam. Still, in a time of economic surplus, it lags behind other states in school spending.

"Tennessee is really at the bottom of the national barrel in terms of how much funding it provides to support public education."David Sciarra, Education Law Center

“Tennessee is really at the bottom of the national barrel in terms of how much funding it provides to support public education,” said David Sciarra, executive director of the Education Law Center, a group advocating for fair and equitable school funding.

But state officials argue otherwise. This summer, the state released a 25-page defense of its funding formula in response to the lawsuit filed last year by Shelby County Schools in Memphis. Haslam has maintained all along that the state is filling its constitutional duty to its public school students. And the State Department of Education, in its statement about Nashville’s lawsuit, noted that education spending has increased steadily during the last few years.

Time to reset

Experts say Tennessee is overdue for a reset. They say the state should step back and look at what it costs to educate kids today, taking into account how technology, demographics and school accountability have changed since the BEP was approved in 1992. (The legislature included some updates to the formula this year, while leaving out others.)

“One of the things the legislature could embark on (would be) a cost study to figure out what kind of formula would serve Tennessee schools today given the demands lawmakers are placing on schools and students for performance,” Sciarra said.

Tennessee’s formula also should take into account the high concentration of impoverished students served by many of its districts, say advocates for equitable funding. The state already gives districts more money per low-income student. But when low-income students are segregated in schools, the impact of poverty magnifies, says Rebecca Sibilia, CEO of EdBuild, another nonprofit organization focused on fair school funding.

Gov. Bill Haslam
PHOTO: TN.Gov
Gov. Bill Haslam

“This is where your students are much more likely to encounter violence on their way to or from school, they are much more likely to only have one parent at home, be faced with lower (living conditions),” she said. “When you start to fund for concentrations for students with higher needs, you can actually start to address some of those larger societal needs.”

Sibilia points to California as a school funding success story. The state recently overhauled its spending formula — and ramped up education spending.

But it’s rare to see states start over. “Comprehensive overhauls don’t happen that often,” she said. “The fact that they don’t is indicative of how very political the discussion is.”

Sciarra says that’s where the courts come in.

“The reason you see litigation is not because people want to go to court,” he said. “It’s because the other branches of government aren’t doing their job.”

grand bargain

Colorado lawmakers think they can still find a school finance fix that eluded them for two years

Two years ago, Colorado lawmakers established a special committee to dig deep into the state’s complex school finance problems and propose legislation to fix at least some of them.

Near the end of their tenure, instead of proposing solutions, lawmakers are asking for more time.

If a majority of legislators agree to keep the committee going, its work will take place in a new political environment. For the past four years, Democrats have controlled the state House and Republicans have controlled the state Senate. The makeup of the committee reflected that partisan split. Now Democrats control both chambers, and they ran on an agenda that included increasing funding for education.

But Amendment 73, a tax increase that would have generated $1.6 billion for schools, failed, leaving lawmakers with roughly the same pot of money they had before.

School district and union leaders have warned against changing the way the state distributes money to schools unless there’s more money in the system. Otherwise, efforts to make the formula fairer will end up reducing funds to some districts. Put another way: They want a bigger pie, not different-sized pieces of the same pie. But Colorado voters didn’t bake a bigger pie.

For state Rep. Alec Garnett, the Denver Democrat who serves as vice chair of the committee, that’s an indication lawmakers need to develop a bipartisan proposal that voters would pass.

“We are where we are because none of the ideas have been right,” he said. “The ideas that have been brought forward have been rejected by the legislature and by the people of Colorado. It’s really important that this committee be seen as the vehicle that will get us a solution.”

Republican state senator-elect Paul Lundeen, the committee chair, said he sees broad consensus that Colorado’s school finance formula needs to put the needs of students rather than districts first.

“I’m an optimist,” he said. “I believe we will achieve a formula that is more student-centered.”

State Sen. Rachel Zenzinger, an Arvada Democrat, agreed that a bipartisan approach is important to showing voters that “all voices were heard,” but she also pointed to a political landscape that has changed. The committee should be bipartisan, she said, “as long as we are able.”

Not everyone thinks it makes sense to keep going.

We obviously support improving our school finance formula and appreciate the work and discussions of the committee, but without meaningful new money, we don’t believe in creating winners and losers,” said Amie Baca-Oehlert, president of the Colorado Education Association, the state’s largest teachers union. “This is a new day. It’s time to get fresh perspectives from a new legislature. We believe the committee should not continue and is outdated. It is no closer to real funding solutions than when it started two years ago.”

A representative of the Colorado Association of School Executives, which represents superintendents, said the organization would take up this question with its members later in the month.

Discussions among lawmakers on the committee have been frustrating and circular at times, with consensus elusive not only on the solutions to the problem but on which problem is the most important to address. A consulting firm that worked with the committee for most of that two-year period ultimately failed to produce the simulation model lawmakers hoped to use to test new funding formulas because a key staff member left. Then decisions got put on hold to see how the election would turn out.

Legislators said the last two years of work have not been a waste at all but instead have laid the groundwork for coming discussions. They put on an optimistic face.

“The key is bipartisanship across the board,” Garnett said. “If Republicans and Democrats and the General Assembly say to voters, ‘Here is how we want to change the formula, but we need your help,’ that is the Colorado way.”

Garnett said those who have been at the table so far — a reference to school district superintendents who brought their own proposal last year — cannot continue to control the conversation.

“The tables have not been big enough to get support,” he said. “We can’t do this alone, but no one else can do it alone either.”

The committee unanimously supported an extension, but could disagree at the next meeting, set for mid-December, on changing the makeup or scope of the committee. Right now, it has five Democrats and five Republicans, with five members from the House and five from the Senate.

The original authorizing legislation was extremely broad. Zenzinger said it might make sense to set aside issues about which there has been stalemate. That would give Republicans less room to press their priorities.

Also in the mix: governor-elect Jared Polis has made his own education promises, especially funding full-day kindergarten. Some people question whether that’s the best use of scarce education dollars, which they might like to spend on special education or expanding preschool.

Garnett said he doesn’t think asking voters for more money is off the table, but it should be part of a broader conversation about changing constitutional limits on the growth of Colorado’s budget. A new formula could be created with a trigger, should voters agree to that change.

“This challenges everyone,” he said. “It requires Republicans to dig into the crisis, and it requires Democrats to dig into what needs to happen at the classroom level.”

school facilities

Cold temps close Memphis state-run schools, highlighting bigger issue of repairing costly, aging buildings

PHOTO: Caroline Bauman
Georgian Hills Achievement Elementary was one of four school closed Tuesday due to heating issues.

More than 1,200 students in Tennessee’s turnaround district stayed home from school on Tuesday because their school heating systems weren’t working properly.

Temperatures dipped below 35 degrees, and four schools in the Achievement School District opted to cancel classes because of boiler issues: Georgian Hills Achievement Elementary School, Frayser Achievement Elementary School, Corning Achievement Elementary School, and Martin Luther King Jr. High School. In addition, Kirby Middle School decided to close Wednesday.

Aging school buildings in Memphis have caused headaches and missed school time for Shelby County Schools and the Achievement School District, which occupies buildings rent-free from the local district. Just last week, Hamilton High School in Shelby County Schools closed for two days after a power outage caused by heavy rain, and Kirby High School remains closed because of a rodent infestation. Kirby’s students are being housed in different schools for the rest of the semester while repairs are made to rid the school of pests. And Shelby County Schools had to deal with the dropping temperatures on Tuesday as well, with Westwood High School and Oak Forest Elementary ending classes early due to their own heating issues. Westwood High will remain closed Wednesday.

But Tuesday’s closures for state-run schools point to a larger issue of facilities: In a city full of older school buildings needing expensive updates, who pays, and who does the work? There is a formal maintenance agreement between the two districts, but the lines that divide responsibilities for repairs are not always clear.

Shelby County Schools is responsible for bigger fixes in the state district, such as new roofs or heating and air conditioning systems, while the state district’s charter operators are responsible for daily maintenance.

Bobby White, chief of external affairs for the Achievement School District, said they are working with Shelby County Schools to resolve the heating problem at the three elementary schools, two of which share a building. But he said that the issues won’t be fixed by Wednesday, and the schools will remain closed.

“We know it throws off our teachers and students to miss class,” White said. “It’s an unfortunate situation. And it underscores the larger issue of our buildings not being in good shape.”

The charter organization Frayser Community Schools runs MLK Jr. High School as part of the Achievement School District, and a spokeswoman for Frayser said they were handling the boiler repairs on their own as opposed to working with Shelby County Schools. School will remain canceled at the high school on Wednesday.

“Currently our maintenance team is working with a contracted HVAC company to rectify the heating issue,” Erica Williams told Chalkbeat. “Unfortunately, it was not resolved today, resulting in school being closed Wednesday. While our goal is to have school as soon as possible, we want to make sure it’s in a comfortable environment for our students.”

The state district was created in 2012 to turn around the state’s lowest-performing schools by taking over local schools and giving them to outside charter organizations to run. Shelby County Schools has a crippling amount of deferred maintenance for its school buildings, including those occupied by the state district, that would cost more than $500 million. The Shelby County district prioritizes how to chip away at that huge cost based on how many children are affected, the condition of the building, and the type of repair, spokeswoman Natalia Powers told Chalkbeat, adding that the district has made some major repairs at state-run schools.

But Sharon Griffin, chief of the Achievement School District told Chalkbeat previously that one of her goals is to resolve problems more quickly with Shelby County Schools when a major repair is needed to avoid lost class time.