Thursday, April 28, 2016

McDuffy redux? (or Legal Action? What Legal Action?)

In response to this section of last night's joint meeting in Worcester--

--I got some questions today on just what was meant by "legal action."

Note that I am going to elide a whole lot of history here to get to the basic outlines.

Historically, schools in Massachusetts have largely been funded (as schools across the US) by local property taxes. Thus the taxes on property within a town were the source of revenue for schools within that town. That has the result, of course, of towns that have more property wealth having more money available to them to spend on schools, and of schools in different (and sometimes adjoining) towns having schools that look very different.
As a result, there were a series of cases* filed by districts against the Commonwealth of Massachusetts over the 1970's and 80's. These gained some urgency once Proposition 2 1/2, which limited the growth of local taxation to no more than 2 1/2% per year without an override, passed in the state, as that limited the amount that towns could increase their funding of schools (among other services) every year.
Why sue the state?
John Adams!
Yes, (the perpetually quoted by me) Chapter V, Section II of the Massachusetts Constitution explicitly makes education the "duty of legislatures and magistrates" in the state. Magistrates are the town officials; the legislatures meet, as they always have, on Beacon Hill. And Beacon Hill wasn't doing as much as they could to ensure that kids across Massachusetts were getting a good education.
The cases were consolidated into McDuffy v. the Secretary of the Executive Office of Education, and the Supreme Judicial Court decision was handed down in June 1993. Essentially, the districts won: the state was told to make sure that kids across the state were getting an appropriate education:
...the provisions of Part II, c. 5, Section 2, of the Massachusetts Constitution impose an enforceable duty on the magistrates and Legislatures of this Commonwealth to provide education in the public schools for the children there enrolled, whether they be rich or poor and without regard to the fiscal capacity of the community or district in which such children live. It shall be declared also that the constitutional duty is not being currently fulfilled by the Commonwealth. 
The decision is dated June 15; on June 18, the 1993 Education Reform Act was signed into law. While most know it for it (ultimately) being the reason we have the MCAS exam, it also set parameters for the creation of statewide standards of education, and it created the foundation formula that funds K-12 education in Massachusetts.
The foundation formula is progressive in two ways: it allows higher amounts of funding for greater student need, and it requires the state to provide for greater amounts of the funding needed in less wealthy districts.
The state implemented the foundation formula on a seven year rollout, but a number of districts felt that progress wasn't being made quickly enough and that the results weren't bearing out what was required, so another round of lawsuits were filed, which resulted in Hancock v. the Commissioner of Education in 2005. The results of this case were much more mixed, as the SJC found:
The Governor, the Legislature, and the department are well aware that the process of education reform can and must be improved...The amply supported findings of the judge reflect much that remains to be corrected before all children in our Commonwealth are educated. The Legislature may well choose to rely on these findings as it continues to consider efforts to improve public education. Her findings are also a testament to the many educators, teachers, parents, business and community leaders who insist that, until that goal is reached, they will continue to demand improvement and will seek the help of our elected officials to ensure that meaningful reform is ongoing.
"The presumption exists that the Commonwealth will honor its obligations." Bromfield v. Treasurer & Receiver Gen., 390 Mass. 665 , 669 (1983). I am confident that the Commonwealth's commitment to educating its children remains strong, and that the Governor and the Legislature will continue to work expeditiously "to provide a high quality public education to every child." G. L. c. 69, s 1.
The Hancock decision did, however, leave the door open for the districts to come back if, as time went along, the state was not keeping up its end of the bargain.
And that brings us rather neatly to the Foundation Budget Review Commission, which found precisely that. That's why, as I've heard him say multiple times now, Mr. Allen told the joint committee last night:
...and the FY16 benchmark is, for Worcester, over $90 million underfunded by the standards of the Foundation Budget Review Commission.
Thus, if the state doesn't come through on action, there is an argument for re-opening Hancock...a McDuffy redux.
And the state handed us the strongest evidence themselves last November, when they issued the Foundation Budget Review Commission's report.

*including Jordan Levy and others v. the Governor, filed by Worcester's mayor Jordan Levy

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