Thursday, April 12, 2018

Steve Finnegan talks McDuffy at MASBO

Steve Finnegan, MASC General Counsel, is at MASBO's Law Institute today to talk about the McDuffy case.
Note, by the way, Worcester Magazine's update on Worcester and Brockton. 
MASBO says:
Attorney Finnegan will retrace the activity which lead to the landmark decision focusing on his particular activity in this litigation. He will also review the end result 25 years later and offer thoughts on how that decision (and subsequent decisions such as Hancockmay impact future litigation.
updating as we go

Finnegan:
school business officials have "probably the toughest job in local school systems"
caught between school committee and superintendent in some cases
"one that's sometimes quite controversial"
McDuffy rewrote the law; "has stood the test of time"
legal council to Council on Fair School Finance
Levy v. Dukakis filed in 1978; "it took fifteen years to get to court"
If you're thinking of filing suit, know "you're talking about an enormous amont of time, effort, and of course, money"
original group included teachers' unions, MASC, MASS, ACLU
MMA was involved but was concerned about minimum contribution by local districts
"this was Dukakis' first term"
later changed to McDuffy v the Secretary of Education since having the Governor's name meant we'd need to change the suit as the Governor changed
"needed plantiffs who had suffered real harm"
plantiffs were children in fifteen representative school districts who "had suffered real harm"
Rodrigues case meant no federal case possible, so attention focused on state courts
"definitely driven by the lack of funding"
general aid to education created in 1960's; prior to that, was no general aid to education
state did not consider it a duty to provide for education
"and the federal government was worse" prior to ESEA, "was probably 2 or 3%"
1965 first major educational reform bill was enacted
"main focus of that reform was regional schools...and particularly vocational regional schools"
many regional vocational schools date back to this
this reform "established chapter 70"
before 1993, the Legislature ceded to municipalities virtually unlimited control over school budgets
"he who pays the piper calls the tune"
Prop. 2 1/2 was an initiative petition changed state law
also abolished fiscal autonomy by school districts; which had allowed that the budget passed by the school committee "was going to be the budget from the schools"
why the property tax was such a force
had been enforced by the courts over time; there was a disincentive to challenging fiscal autonomy
thereafter school committees enjoyed limited fiscal autonomy
MASC established clearly the line item control by school committee of the school district
excise tax was reduced from $66 to $25 per thousand and renter reduction all happened at the same time
all of which are local reductions of taxes
"it was a terrible hit...I don't think people realize today how difficult that was to deal with"
It had been assumed those pushing for Prop 2 1/2 didn't have the money; the tech business "bankrolled the ballot question and bankrolled it generously"
56 to 40% of voters adopted it in 1980
aid fell in the late '80's, which hit the districts most dependent on state aid hardest, even as they were also seeing their own local revenues drop
reduced budgets for several years for districts
"it has been said that we lost a generation of teachers as a result"
Boston laid off teachers with up to twelve years of experience
as each round of ed reform laws came up, it delayed the case for several years
1978 Collins-Boberini bill (?) to address the needs of poorer communities
this effort froze in place the prior Ch. 70 and applied reform only to new aid
1985 Ch. 188 sought through equal education opportunity grant; raise lower spending to 85% of state average
established minimum amount of school spending by state government
discussion of equity or adequacy
"equity just means equal spending...adequacy is bringing people up from a lower level"
education clause was vague "and boy, it was vague"
case cited report "Distressed Schools" the state was not meeting its obligations (report from Board of Ed)
"was not providing an adequate education to students"
"the importance of that report cannot be overstated...the defendant essentially admited the position of the plantiffs!"
"I would say that's the real reason why we ended up with the McDuffy case being successful"
McDuffy released June 15; Governor signed Ed Reform bill three days later
"what happened next? The Hancock case...sought a finding by the court after twelve years...the funding was not adequate"
sixth month trial was conducted by Judge Botsford
358 page report issued outlining testimony and facts found proven at trial
majority opinion of the court that districts showed "steady trajectory of progress"
SJC said it would consider a future case, but a "serious setback"
declined to enforce and disposed of the case entirely
all of government experienced cutbacks in early 2000's; "everybody was experiencing setbacks"

Things that influence this going forward:
Ballot questions coming up: Fair Share and sales tax, cutting back to 5%
"to some extend, those things somewhat cancel each other other"
Foundation budget review commission: $125M new money for Ch. 70; $39M to address health insurance
Agency fee federal case: would allow public employees to determine if they want to contribute to unions; "recent successful challenge to the charter school question was funded by the teachers' association...it is a two-edged sword"


Q: is there an appetite in the courts?
Finnegan: "you're never stronger than the day you file a complaint unless you win"
long lag time of case...making Ch. 70 a more robust funding mechanism for local school system
"this is a new court...none of them were around for McDuffy or Hancock, so it's somewhat an unknown quality there"
following prior cases is a legal standard... Hancock would not be a good precedent for us
that doesn't mean that if the facts on the ground for us, if they're eligible to be proven
"if there are some facts on the ground...they should file it"
having the case filed did have "a subtle pressure" on the state
"and again, we won the McDuffy case"
"it's not going to take as long...that was out of whole cloth...so it was new...and we had to find our way, and we had to let certain things play out"
"the courts do not want to legislate...but on a big item like this, on a big item like Chapter 70...is that something that they want to take on and indicate equity" or more funding
"think it would be simpler to get going"
"we do have the Foundation Budget Review Commission"
do have the millionaires tax "and there would be some money that would go to education"
the biggest driver is the state budget is Medicaid...eating up 40% of new revenues of the state every year
Q: biggest issue you saw?
"the enormity of it"
"a total leap into the future...but it worked"
"some people think that equity should have been part of it...I disagree"
"courts have a tendency to move that back...doctrine of judicial restraint...maddening though it may be"
case proceeded in a way that it could be successful "and it was"

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