Educational Funding

By Brian Flaherty, Suffolk University School of Law Library

The third program on Friday, entitled "Educational Funding Litigation; NH and Across the Nation," was one of the best, and most informative presentations that I've seen.It was broken down into two parts.First: a surface dissection of the No Child Left Behind Act of 2001, P.L. 107-110.Second: a detailed discussion of the educational funding litigation in New Hampshire presented by opposing counsel in the case, Andru Volinsky and Anne Edwards.The discussion of the No Child Left Behind Act followed a presentation by the New Hampshire Department of Education from March, 2002.It was a very good description of the major provisions of the act.The better part of the program, however, was the point/counterpoint discussion of the funding cases in New Hampshire, known as the Claremont cases.Those who attended are in debt to Mr. Volinsky and Ms. Edwards for an outstanding program.

No Child Left Behind

On January 8, 2002, George Bush signed the biggest, certainly the longest piece of educational legislation in almost a decade, the No Child Left Behind Act of 2001, P.L. 107-110.This mammoth piece of legislation affects schools in what look, on paper, to be positive ways.The act increases education funding substantially, provides for some flexibility in funding, but then ties the greatest increases in funding to school accountability and testing.

First, the act tries to provide for more local control for school boards.For example, federal funding is usually tied to specific programs.However under the act, schools may transfer up to 50% of state and federal money between programs, except schools cannot transfer money from either Title I, or Title III funds.

At the same time, however, the act imposes stricter standards for teachers, and even paraprofessionals.In the past, it has been enough that teachers were simply certified.Now they must be certified in a specific area, and be teaching in that area.All new paraprofessionals are required to have some degree of higher education, and current paraprofessionals are give four years to satisfy the requirement.All teacher training, as well as all teaching, must be based on existing research.

The act articulates a very clear focus on reading and literacy, by funding a number of literacy programs including “Reading is Fundamental,” “Even Start Family Literacy,” and “Early Reading First” grants.Again the act is very specific in requiring school reading programs to be “based on scientifically based research.”The focus on math and science is a bit less specific: section 2201 provides funding for "mathematics and science partnerships" to encourage instruction and learning, develop curricula, and ultimately improve the academic performance of students in both Math and Science.

The most controversial provisions of the No Child Left Behind Act are those which create systems for state and federal accountability, and tie those systems of accountability to substantial increases in federal funding.According to the act, each state which accepts Title I funds, needs to come up with its own unified system of accountability.Each state must define "adequate yearly progress" for their own school system, and then institute annual standardized testing to see that each school is "measuring up."Further, every two years a sample of fourth and eighth graders will take the National Assessment of Educational Progress exams (NAEP), to see that the state is "measuring up" nationally.The act provides a graduated series of consequences for school districts not making "adequate yearly progress."After two consecutive years of not making AYP, the school must implement a two-year plan for improvement, but also give students the option to transfer to any other school in the district (& pay for transportation).If the school fails to make AYP the next year, it must offer "supplemental services," e.g. tutoring, for students in need.If the school fails again to make AYP, the school must choose from of a variety of "corrective actions," including hiring an outside expert, extending the school year or day, more radical restructuring.At this point, parents may also choose to send their child to a "higher performing" school outside of the school district.If the school fails to make AYP for five consecutive years, the state is required to implement restructuring, the dreaded "state takeover."

While the act sets out detailed guidelines for determining "adequate yearly progress," it doesn't speak to the difficulty of creating a statewide standard to incorporate the existing diversity in school systems.How does one create a single test to adequately measure both the well-funded, over-performing school districts, and the poorly-funded, under-performing school districts?While the act purports to strengthen local control, it seems also to remove some freedom by requiring standards, and tying those requirements to funding and school autonomy.It the past, schools required to perform well on standardized tests in order to maintain or increase funding have limited their curricula to those items that are to be tested, so-called "teaching to the test."This has tended to curtail school freedom, and cut into such frivolous programs as art, and physical education (which go generally untried by standardized testing).Finally, the act does increase funding substantially, but then requires schools to implement involved, costly standardized testing.Some states are asking themselves if all of the provisions for accountability: adequate yearly progress, standardized testing, graduated sanctions for not "measuring up," the looming spectre of "state takeover," are really worth the money.Mr. Volinsky noted that Vermont was actually thinking of declining the Title I money, not as a philosophica stand against standardized testing, but as a practical matter: it would cost more to implement the systems for accountability than the increases provide.

Claremont and the Constitutional Right to an "Adequate" education.

Scratch the surface of most school law debates: about the constitutional rights of students in schools, discipline, harassment, even vouchers, and you will find the same fundamental question: does there exist a constitutional right to an adequate education? More specifically: does the constitution impose a duty on the state to fund an adequate education?

New Hampshire, has been fighting the battle over state funded “adequate education” since 1991.In 1990, Andru Volinsky, one of the presenters in Friday's Program, shared a gym locker next to Arpiar Saunders.One day the locker room talk turned to educational funding, and Mr. Saunders suggested to Mr. Volinsky that he might like to join forces in a suit filed against the state of New Hampshire to get the state to take responsibility for funding an "Adequate education," a duty Mr. Saunders believed was imposed on the state by Article 83 of the New Hampshire State Constitution.Together they filed suit in June 1991, believing that the litigation would last "maybe about 18 months at the outside."

In 1993 the Supreme Court of New Hampshire, reversing a lower court decision, held that the legislature was constitutionally responsible for providing an adequate education (Claremont v. Governor, 138 NH 183, 635 A.2d 1375 (1993))The case was remanded for trial, where the court held that the education provided at the plaintiff school districts was constitutionally adequate, and that the system for financing public education was not unconstitutional.The case was again appealed to the Supreme Court of New Hampshire, which didn't speak to the adequacy of the education in the plaintiff schools, but held that the system for funding public education in New Hampshire was unconstitutional.The concluding sentence of the majority opinion of this case, known as Clermont(II), reads: "We are confident that the legislature and the Governor will act expeditiously to fulfill the State's duty to provide for a constitutionally adequate public education and to guarantee adequate funding in a manner that does not violate the State Constitution."(Claremont v. Governor, 142 N.H. 462, 476, 703 A.2d 1353, 1360 (1997))That was on December 17, 1997.The legislature has still not been able to come up with a system acceptable to the Supreme Court for financing public education.(in fact, on April 11, 2002, two weeks before the program at Franklin Pierce, the New Hampshire Supreme Court issued yet another Claremont opinion, stated that the legislature's most recent attempt, the "New Hampshire Education Improvement and Assessment Program (NHEIAP)[,] did not meet State's obligation to develop system to ensure delivery of constitutionally adequate education").

The second half of the program on educational funding was an excellent overview of these Claremont cases, presented by Andru Volinsky, counsel for the plaintiffs, and Anne Edwards, the associate Attorney General, who currently represents the state.Mr. Volinsky presented first, and discussed the various maneuvering that went on following the 1997 decision and directive by the court that the legislature come up with an equitable system for funding public education.In 1998 the legislature proposed a statewide property tax at a uniform rate, to be phased in over five years.The Supreme Court of New Hampshire declared this "phase in" unconstitutional.The statewide tax was passed in 1999, without the phase-in provision.The act, 1999 Ch. 17, establishes a “uniform property tax” specifically intended to “fund an adequate public education.”In addition to creating this tax, it also restructures the way education is funded: before the Claremont litigation, only 8% of the money used for public education was derived from state aid; this was the lowest percentage in the country.Now, following the 1999 legislation, 24% of the money comes from the state.While this is better, it still leaves New Hampshire in the lower tier in terms of state aid for public education.

Anne Edwards took over as counsel for the state in 1998.Since that time, she says, most of the work done on Claremont has been legislative. She discussed the 1999 act in greater detail, disagreeing with Mr. Volinsky on the amount of state aid given for public education.She counts the "uniform property tax" as state money used to fund education.She points out that it is money collected by, and then redistributed by the state.And so while Mr. Volinsky shows state aid used to fund public education increasing from 8 to 24%, Ms. Edwards sees a much higher jump, to 46%.Mr. Volinsky counters that this is local funding, and points out that save Vermont, all other states count the statewide property tax that is raised and kept locally as local money.

No matter the figures, the progress has been slow.Both she and Mr. Volinsky pointed out the difficulties of getting things done at a state level in “Live Free or Die” New Hampshire.True to their motto, folks from New Hampshire tend to value local control, and distrust any kind of state intervention (certainly when it's called tax, but even when it’s called aid).Also, New Hampshire governors serve for two years at a time.They are forever in "campaigning mode,"and no candidate in his or her right mind is going to run on a platform of “New Taxes” and expect to get elected.

It was refreshing to see opposing counsel so downright friendly towards one another.While they clearly disagreed on a number of points, they seemed at times more like co-presenters rather than attorneys on opposite sides of a case.While the majority of the information included in the presentation was specific to New Hampshire, Mr. Volinsky pointed out where we might find more information about education funding litigation in other states.The question of equity in education funding is so controversial as to have been the source of litigation in 43 states thus far, all well indexed and detailed at is, it seems, a model: in 1989, the Kentucky Supreme Court declared “Kentucky’s entire system of common schools unconstitutional.” Rose v. Council for Better Education, 790 S.W.2d 186, 215 (1989) The Kentucky legislature responded in triumphant fashion with the Kentucky Education Reform Act of 1990 (Ky. St. 1990 ch. 476).Throughout the presentation, both Mr. Volinsky & Ms. Edwards pointed to “KERA” as a model that seems to be working.With equitable funding for education such a clear problem, the existence of such a model is a welcome step towards a solution.

NEXT ITEM: Pictures from LLNE's Spring Meeting at Franklin Pierce Law Center