Have We Lost Control of Our Local Schools?
Supreme Court decision calls for a complete change local control and funding of education.
Don A. Bright
A lot of scurrying has been going on in Little Rock over the last few months. The scurrying has been the result of a Supreme Court ruling on the appeal of Lake View School District v Huckabee, et al, which ruled the entire Arkansas School System unconstitutional.
Most people do not read the Constitution and/or Arkansas Supreme Court cases. Those interested in these things look to their Representatives, local and state media and editorial pages for enlightenment. For several reasons in the Lake View case the information being presented by these parties has been only partial at best and downright misleading in at it’s worst.
One source told me that through pure curiosity about this phenomenon he placed several phone calls to local legislatures, newspaper editors, reporters, and others. When asked about their research into the decision the answers he got were “I haven’t read it.” Or “I glimpsed through some of it.”. Hopefully in this limited space we can bring to our readership some very important ramifications of the case that have “not been considered important” to use a generous term. There are some individuals and groups that have taken great pains to keep the real problems resulting from the decision hidden from the public. These range from Governor Huckabee and the State Legislature to (and most ashamedly) the Arkansas State Board of Education (BOE).
Here are a few of the things that have not generally been brought to light:
Raising taxes and consolidation?
Did the Supreme Court tell the Legislature that they were not spending enough money on “education”? Most people think they did, but the answer is no; spending was not a priority in the court decision. Neither did the Supreme Court call for consolidation. I will quote from the decision:
“Schools & school districts -- school funding -- roles of legislative & judicial branches. -- In school-funding matters, the supreme court is not engaged in the "search for tax equity"; it is the legislature that, by virtue of institutional competency as well as constitutional function, is assigned that responsibility;...”
If spending and/or consolidation was not the main complaint’s what was?
The State Constitution calls for the state to provide an “equitable and “adequate education”. (On November 9, 1994, then-chancery judge Annabelle Clinton Imber found that the school-funding system did not violate the United States Constitution, but that it did violate the Education Article (Article 14, § 1) and the Equality provisions (Article 2, §§ 2, 3, and 18) of the Arkansas Constitution. In December 1994, Judge Imber modified her November order slightly with two additional orders. The chancery judge stayed the effect of her order for two years to enable the Arkansas General Assembly to enact a constitutional school-funding system in accordance with her opinion.
After that ruling, in 1995, the Arkansas General Assembly in an attempt to carry out the theme of Judge Imber’s order called for an “adequacy” study.
“The State Board of Education shall devise a process for involving teachers, school administrators, school boards, and parents in the definition of an "adequate" education for Arkansas students.”
The State Board shall seek public guidance in defining an adequate education and shall submit proposed legislation defining adequacy to the Joint Interim Committee on Education prior to December 31, 1996.”
Act 917 of 1995, § 6(c-d).”
Did the Department of Education (which is under the control of the executive branch and therefore is the responsibility of the Governor) do as they were ordered by the Legislature to do? No! Again I quote from the courts decision:
“Despite this directive from the General Assembly, nothing has been done by the Department of Education, and seven years have passed. Judge Kilgore (In Fall 2000, at the request of the Arkansas Supreme Court, a hearing on whether the current system of public education was in compliance with the Arkansas Constitution was held in Pulaski County Chancery Court with Judge Collins Kilgore presiding. Judge Kilgore ruled that the current system of education was unconstitutional. echoed this in his 2001 order:
Pursuant to Act 917 of 1995, and in order that an amount of funding for an education system based on need and not on the amount available but on the amount necessary to provide an adequate educational system, the court concludes an adequacy study is necessary and must be conducted forthwith.
Stated simply, the fact that the Department of Education has refused to prepare an adequacy study is extremely troublesome and frustrating to this court, as it must be to the General Assembly.
Why will the BOA and the Governor’s office not obey the request?
That answer is simple. The Department of Education (DOE)/Union is the most powerful special interest group in the State. Our Governor and state legislators are simply afraid to upset this behemoth and it’s voting block. The primary objective of this 900-pound gorilla is that of maintaining and expanding their membership and increasing their power. And that takes more and more money. The school children are of little, if any, concern to the educational union/lobby/bureaucracy. Defining “adequate” would box them in. They could not go to the legislature each and every session for more money if “adequate” was defined and found to be fulfilled at current funding.
Can the Supreme Court force the DOE to fulfill its duty?
It’s trying. The Supreme Court, in its decision, said to the legislature, executive branch and in particular the DOE –You haven’t done what you have been told by the court to do. You have not satisfied us. Now we are going to give you a kick-start. You will satisfy us if you do this. And by that they meant what is called the *Rose Test. In essence the court was saying, “The state (and remember it says the state) shall ever maintain a general, suitable and efficient system of free schools whereby all persons in the state between the ages of 6 and 21 years may receive gratuitous instruction.” In other words, it doesn’t cost anything to go to school in this state, but it is the state’s responsibility to provide for the costs of education for six-year-olds through 21.
*Editor’s note: The Kentucky Supreme Court's 1989 decision in Rose v. Council for Better Education was the most far-reaching decision any U.S. court had ever issued in a school finance case. It reached beyond the conventional equity arguments and broke new legal ground regarding educational adequacy. In Rose, the Kentucky high court contended that the state's entire system of public schooling had to be reformed to provide students with an equal opportunity to achieve a set of learning standards established by the court.
“Without the benefit of an adequacy standard developed by the Department of Education, both Judge Imber and Judge Kilgore looked to the case of Rose v. Council for Better Education, Inc., supra, for a definition of "efficient" education.)”
“We concur with the trial court that an efficient system of education must have as its goal to provide each and every child with at least the seven following capacities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.”
So is the State accomplishing what it is Constitutionally bound to do? Again I will let the court decision answer:
“In addition to the State's argument that an adequate education is incapable of definition, it further contends that there is no correlation between enhanced school funding and better student performance. The State points to the ACTAPP program for assessing and evaluating student performance in English and mathematical skills as a positive step the State has recently taken. The State also fiercely contends that the Arkansas Constitution does not require pre-school programs such as those it contends, were mandated by Judge Kilgore.”
Further into the court’s decision the court says:
“...the State makes the implausible argument that more money spent on education does not correlate to better student performance. This position is contrary to Judge Imber's finding in her 1994 order and to the Tennessee Supreme Court: "[T]here is a `direct correlation between dollars expended and the quality of education a student receives.'" McWherter, 851 S.W.2d at 141. The State's argument is farfetched in this court's opinion. We are convinced that motivated teachers, sufficient equipment to supplement instruction, and learning in facilities that are not crumbling or overcrowded, all combine to enhance educational performance”
“What the State does not address are Arkansas' abysmal rankings in certain key areas respecting education. What follows is a compendium of the trial court's findings, which the State does not contest:
Arkansas students scored several tenths below the national average in a standardized test (ACT) between 1990 and 1999.
Arkansas ranks lower than the national average for the percentage of adults twenty-five years and older who have graduated from high school.
Arkansas ranks forty-ninth in the country for the percentage of the population age twenty-five or older with a Bachelors degree or higher.
Arkansas is tied for fiftieth in the country in percentage of adults with graduate degrees.
Arkansas' fourth- and eighth-grade students are below the national average for proficiency in math, reading, science and writing.
On the first ACTAPP test, only forty-four percent of the fourth-grade students tested were proficient in reading and only thirty-four percent of those tested were proficient in math.
Arkansas' per pupil revenue under the school-funding formula in school year 1996-97 was $4,535, while the national average was $5,923. “
“Results of the State's own Benchmark testing for eighth-grade students in April 2000 showed that only sixteen percent were proficient or above in math statewide, and in the Little Rock School District only nine percent were proficient or above. Arkansas has no funding for the remediation of individual students and no funding to train teachers for remediation after ACTAPP evaluations.
With respect to Arkansas high school students entering state universities, fifty-eight percent needed remediation in either English or math. For the Rogers High School students entering a university (including some students with 3.0 grade averages), forty-four percent needed remediation in either English or math”.
“Judge Kilgore concluded in his 2001 order that the "State has a remarkably serious problem with student performance." We agree.”
“Education -- equal educational opportunity -- basic components. --Equality of educational opportunity must include as basic components substantially equal curricula, substantially equal facilities, and substantially equal equipment for obtaining an adequate education; the key to all this is to determine what comprises an adequate education in Arkansas; the State has failed in each of these responsibilities.”
“For the foregoing reasons, we conclude that the State has not fulfilled its constitutional duty to provide the children of this state with a general, suitable, and efficient school-funding system. Accordingly, we hold that the current school-funding system violates the Education Article of the Arkansas Constitution, and we affirm the trial court on this point.”
Will this cost the taxpayers money?
Let’s look at the most important part of the above quote, “…must include as basic components substantially equal curricula, substantially equal facilities, and substantially equal equipment for obtaining an adequate education; the key to all this is to determine what comprises an adequate education in Arkansas;”
“Schools & school districts -- school funding -- state government must meet obligation if local government cannot carry the burden. -- For some districts to supply the barest necessities and others to have programs generously endowed does not meet constitutional requirements; bare and minimal sufficiency does not translate into equal educational opportunity; if local government fails, the state government must compel it to act, and if the local government cannot carry the burden, the state must itself meet its continuing obligation.”
What the court is saying is just because of population, wealth or location, no district should be disadvantaged. Their ruling stipulates that all districts must offer basically equal curriculum, sports facilities, buildings, teachers, etc. Most people who have read the decision carefully, predict that fulfilling the court’s mandate will cost taxpayers another one to two billion dollars. (I predict it will double that figure if not triple it.) That is almost equal to what the taxpayers are coughing up with per year now. (Currently the funding for education in Arkansas when every thing is added up is just under 2 billion). This could double the annual per-student cost from the current level of almost 6 thousand to over 10 thousand dollars per student each year.
Does the word “state” include every division of the government? Does it include local responsibility? Do the counties or school districts have to pay for the added costs?
No. The court is saying that it does not recognize local control.
“We turn then to the State's contention that even though disparities in educational opportunities may exist due to the property wealth of the individual districts, there are legitimate government purposes or rational bases for this. Those purposes, according to the State, are local control and other state programs. We rejected the argument of local control in DuPree in no uncertain terms and stated that such reasoning was illusory because deference to local control has nothing to do with whether educational opportunities are equal across the state. It is the General Assembly's constitutional duty, not that of the school districts, to provide equal educational opportunity to every child in this state. Furthermore, the State's claim that the General Assembly must fund a variety of state programs in addition to education and that this is reason enough for an inferior education system hardly qualifies as a legitimate reason.”.
“...Deference to local control is not an option for the State when inequality prevails, and deference has not been an option since the DuPree decision.”
“Schools & school districts -- school funding -- state government must meet obligation if local government cannot carry the burden. -- For some districts to supply the barest necessities and others to have programs generously endowed does not meet constitutional requirements; bare and minimal sufficiency does not translate into equal educational opportunity; if local government fails, the state government must compel it to act, and if the local government cannot carry the burden, the state must itself meet its continuing obligation.”
So according to the court’s ruling the state can impose it’s will over local school districts. There goes local control.
A big issue, this; and one you probably have not seen in the local media. The court is saying that (paraphrasing) we refute the argument of local control in no uncertain terms and state that such reasoning is illusionary because of deference to local controls has nothing to do with whether the education opportunities are equal across the state. We reject the theory of local control because it is a state issue, state funds and should be monitored by the State to ensure that it goes to education.
The Constitution calls for an “adequate” education for every citizen from six to 21 years of age. Doesn’t that leave out kindergarten and other preschool activities?
Yes. What the court is saying is that anything done to or for children under six years of age is not mandated by the Constitution and therefore it’s funding cannot be forced from the state. That could mean no more preschool programs like kindergarten. To wit:
“Constitutional law -- Education Article -- plain language does not mandate State-provided, early-childhood education. -- The plain language of Ark. Const. art. 14, § 1, does not mandate the chancery court's order of State-provided, early-childhood education; section 1 reads in pertinent part that the General Assembly and public school districts ‘may spend public funds for the education of persons over twenty-one (21) years of age and under six (6) years of age, as may be provided by law, and no other interpretation shall be given to it’."
While this does allow the individual districts to provide early childhood programs, they can only do so after they have proved their district has met the “adequacy” test. In order to do so many districts will have to eliminate those programs entirely.
What if the 25 mills are not enough?
In that case the court is saying the district(s) must cut back on their spending on extraneous costs, pre and after school programs and apply all of it to an “adequate” education or raise more local funds. The way the decision reads is that the districts can raise any amount of money they want (with a proper vote of the citizens involved) and spend it on anything over and above what it takes to provide an “adequate” education. But not with the first 25 mills.
“The wording of Amendment 74 to the Arkansas Constitution makes it abundantly clear that each school district is responsible for assessing a uniform rate of 25 mills for maintenance-and-operation purposes; if a school district already has in effect millages for maintenance and operation, those millages may be counted against the uniform rate of 25 mills required by Amendment 74; nowhere, however, does Amendment 74 provide that part of a millage adopted by the school district for an entirely different purpose may be subtracted from the 25 mills owed; the General Assembly's legislation permitting excess debt service millage, codified at Ark. Code Ann. § 26-80-204(18) (Supp. 2001), is clearly contrary to the plain meaning of Amendment 74.”
Now the school districts receive about 30 percent of their funds from local revenue, 60 percent from the state and 10 percent from the federal government.
Editor’s note: While amendment 74 requires the school districts to send the 25 mills to the state, I cannot find anywhere in the decision any requirement for the districts to send more than the 25 mills. This could be sticky because Constitutionally the sate cannot assess or collect ad valorem taxes except for the 25 mills allowed under Amendment 74. It is my opinion that any funds from property taxes over the 25 mills could be kept by the district and not sent to the state.
Is the Supreme Court turning the power of local school districts over to the state, including how to spend the district's money?
Yes. It is saying that the legislature has been throwing vast sums of money to the local districts and did not monitor how it was spent. It further implies that the local schools have wasted money on other things than education. A good deal of it went to a myriad of things in general and/or exorbitantly expensive things. By that they mean basically two areas; too many frills and unnecessary bells and whistles, and wasted administration costs. Examples of this are things such as buying some expensive microscope that exceeds “adequate” and administrative costs. The schools can not spend funds on equipment that is defined over and above adequate while the other schools can’t afford to. The court calls attention to out of control salaries being spent on administrators. Right now we have such things as a Superintendent of a district with about 600 kids receiving $175,000 a year and those running much larger districts making far less. Another example is a district with one K-12 school and one Superintendent and four Principals. If it is necessary, in order to fulfill it’s obligation set by the state (adequate) expensive frills, unnecessary courses, and large administrative budgets must be cut first before more funds will be sent to the district(s).
If the state funds the district(s) and they spend it illegally, the state will monitor such and may say that’s a malfeasance of office or that spending the money badly is a felony and local officials can be prosecuted for it.
What about other extra curricular actives?
In order to meet the court’s dictates an “adequate” education comes first, sports, bands, cheerleading, field trips and many, many other non-educational programs (by the Court’s definition) may be done away with until the educational quality of each school is declared “adequate”.
What if the state legislature refuses to levy the necessary taxes to meet the Supreme Court’s dictate?
The Supreme Court will then take over the running of the education system and be in charge of raising and spending whatever funds it deems necessary.
. “This court's refusal to review school funding under our state constitution would be a complete abrogation of our judicial responsibility and would work a severe disservice to the people of this state. We refuse to close our eyes or turn a deaf ear to claims of a dereliction of duty in the field of education. As Justice Hugo Black once sagely advised: "[T]he judiciary was made independent because it has . . . the primary responsibility and duty of giving force and effect to constitutional liberties and limitations upon the executive and legislative branches." Hugo L. Black, The Bill of Rights, 35 N.Y.U.L. Rev. 865, 870 (1960).”
Does this mean the Supreme Court could raise our taxes?
Yes! If the state legislative and executive branches do not reach the court mandated status, the Court has no choice but to demand that the state spend whatever it takes to do so. So, if the Court forces the legislative branch to increase its revenues to pay for the educational system to meet the mandate then that revenue would have to be raised through higher taxes. Ergo, the Supreme Court would effectively raise your taxes.
Will the citizens allow the Supreme Court to render their local school boards useless and then usurp the Constitutional power of the Legislature by levying taxes on the citizens?
The only answer to this is hopefully they won’t. One thing we can be assured of…there will be lawsuit after lawsuit filed before this is over. And the state has already spent over 9 million dollars on lawyers.