Publisher's note: This post, by Bob Luebke, was originally published in Civitas's online edition.
Leandro v. State of North Carolina
casts a long shadow over the public schools in the Tar Heel state. In 1997, the state supreme court held that the state's children have "a right to a sound basic education." In subsequent years, the court sought to further define the implications of the case, a standard North Carolina public schools have met with mixed success. In hopes of improving the schools and securing better funding, in 2017 plaintiffs in the Leandro case asked Judge David Lee to hire an outside consultant to develop a plan for how best North Carolina could comply with its constitutional obligations. Judge Lee agreed and WestEd, a San Francisco based private educational consulting firm, was hired to produce the report, which was publicly released in December.
The report recommends spending up to an additional $8 billion over eight years as well as a litany of other recommendations regarding staffing, resources and training. Not surprisingly, conservatives saw the report as yet another effort by progressives to throw yet more money at a problem whose solutions aren't tied to more funding.
With lawmakers returning to session, there will be battles over school funding and Leandro and the WestEd report are sure to be referenced. Now is a good time to review the report that is driving much of the debate. The conservative case against the WestEd report (WER) is focused on three areas: 1) the report is a product of a flawed process 2) the report writers ignored research and sound research practices, and 3) Implementing the report's recommendations raises serious constitutional questions and threatens to destabilize the current system. Let's now look more closely at each of these areas.
WER recommendations derive from a flawed process
WER's recommendations concern the largest state budget expenditure in North Carolina, K-12 public schools ($9.4 billion). That impacts about 1.5 million students and over 173,000 staff across the state.
WER was drafted by consultants from WestEd, the Learning Policy Institute and the Friday Institute. Regrettably, the report fails to reflect the diversity of perspectives inherent in the policymaking process. WER recommends an additional $8 billion in spending for North Carolina schools over the next eight years. Surprisingly, no Republican legislator was contacted during the time the report was written.
Republican legislators, who have majorities in both Houses of the General Assembly, along with their Democratic colleagues are charged with developing policy and funding K-12 public schools. Despite these realities, Republicans were left off focus groups and were not consulted or interviewed during the study. Considering 63 percent of school district funding
comes from the state, wouldn't it make sense for the majority party in the legislature to have a voice?
Republicans, however, weren't the only ones to be slighted. No charter or school choice representatives had a voice in the writing of WER either. Charter schools and the Opportunity Scholarship voucher program provide children trapped in failing or underperforming schools the chance to get a better education.
Over the past 10 years, private schools and charter schools are proving a popular option for parents. So much so that today, one in five K-12 students are educated in a choice school (charter, private or home school). Charter and many private schools educate children at a fraction of the cost of traditional public schools. Aren't these options North Carolina should be interested in exploring when it considers how best to provide a sound, basic education?
Instead of a full discussion on how school choice opportunities could help North Carolina meet its constitutional obligations, the WestEd report recommends changing how charter schools are funded. The report suggests centralizing all charter school funding in the state and eliminating local funding. The change however, would fundamentally change how charter schools are perceived. Charter schools are by nature, local schools. To change the funding structure would alter the nature of the school at its essence. It is interesting to note the change was not requested by the charter school community. Neither is the change supported by research. It seems to be motivated purely out of convenience to school administrators. Such actions are troubling. This thought process reflects a dismissive attitude toward the growing number of parents who want more educational options for their children. In addition, the report suggests a lack of openness to reform and preference for maintaining the existing educational establishment. Shouldn't a report that addresses public education and public education funding seriously consider all educational options as well as representatives of the body that deliberates and approves that funding? WER actions suggest a bias that only weakens the credibility of the report.
WER ignores research and demonstrates some highly questionable research practices
A second criticism of WER is that it ignores relevant research and demonstrates some highly questionable research practices. What do I mean? WestEd ignores current research on education policy and student achievement. WER's framework is concerned fundamentally with inputs. There is little or no focus on outputs. Aside from test scores there is little emphasis on how well North Carolina schools are doing in educating children. The WER framework falsely assumes that student achievement is merely a function of tinkering with the right inputs. The report fails to acknowledge that student achievement is a product of many factors - including school culture, family environment and teacher quality. Moreover, any truthful discussion of these factors would also include an admission that many of the most important influences on student achievement reside outside the classroom. How do we know? Because there are schools and school districts that have similar inputs and similar students yet yield different student outcomes. Education is not like cooking where following a certain recipe yields the same results. The variability of outcomes in North Carolina and elsewhere argues against a framework that focuses primarily on inputs.
WER recommends spending up to an additional $8 billion over eight years annually on the public schools in North Carolina. That's a lot of money. It's also a lot of faith in the assumption that the best way to improve student achievement is to boost spending. Underlying many of WER's recommendations is the assumption that greater financial resources will lead to better student outcomes. However, that's not necessarily the case.
A thorough review of the research shows the link between spending and student achievement to be inconclusive at best. Stanford University Education Professor Eric Hanushek, an expert on school finance and outcomes, argues
that spending on inputs such as lower teacher ratios, a higher percentage of teachers with master's degrees, and lower class sizes has increased in the last five decades but not yielded any increases in student achievement. Moreover, considerable research
points to the fact that how schools spend money is as important as the level of spending. Hanushek has spent his career showing that the relationship between funding and student achievement to be inconclusive and influenced by many factors. Indeed, the issuance of the Coleman Report
in 1961 bolstered such reasoning when it found that educational outcomes to be more influenced by family background than by spending on teachers or smaller class sizes. This is not to say money is not important, or to deny the beneficial impacts it can have. However, marginal costs and benefits change with any population and they too need to be part of the discussion.
Massive infusions of money don't always result in improvements in educational outcomes. The United States is one of the highest spenders in the world when it comes to spending per student. However, nations that spend much less per student are producing students who do better on international and standardized tests.
In addition to ignoring the truth that the link between money and student achievement is inconclusive at best, WestEd ignores research regarding school choice. Aside from one provision about eliminating local funding and centralizing all funding with the state, nothing is said about charter schools, a sector of public education, whose enrollment has mushroomed to about 111,000 students.
What role can charter schools play in helping to provide North Carolina students an opportunity to a sound, basic education? What impact do charter schools have on public school enrollment, financing and staffing? These questions are important. Yet they are ignored by the WestEd report.
Moreover, WestEd ignores discussion of any role school choice might have in meeting the state's obligations. The research on private school choice programs is promising and many private schools can provide an education at less cost than traditional public schools. Despite these encouraging developments, the WestEd report fails to include any school choice programs in the discussion of how to best meet the state's constitutional obligations. Polls
suggest parents want more educational options. Growing enrollment in school choice programs validate those sentiments. Yet, again WestEd ignores school choice and school choice research.
While WestEd refuses to consider the findings of relevant research, the report is also marred by questionable research practices. It's reasonable to assume that any statistic measuring the impact of the Leandro case should extend at least back to when the case was decided in 1997 or when the case was filed in 1994.
That's not the case with the report. Numerous timelines in the report begin in 2010. Why? The report tracks per pupil spending (Exhibit A2 in the WestEd Report ) and provides data from 2010 to 2018. The report provides no rationale why 2010 was picked. Why not include the years 1997 through 2009? Do those years not represent the years from which Leandro data should be provided? Why is 2010 an appropriate timeline for the data? No reason is given. Of course, 2010 represents the tail end of the Great Recession. It also represents the end of Democratic majorities in the North Carolina House of Representatives and State Senate. Why the report did not include data on per pupil expenditures when Democrats had majorities in the General Assembly in the relevant years is a question that deserves to be asked. Some even suggest including per pupil expenditure data back to 1994, since the Leandro case was actually filed in that year. West Ed includes student performance data back to 1994 - but not per pupil expenditures. Lacking statistical explanation, it is easy to identify 2010 as the beginning of Republican ascendency in the North Carolina General Assembly and the beginning of Republican budgets and policymaking. That's a feasible explanation but it politicizes the research process and makes one wonder why earlier data on spending is ignored.
A second statistical problem WER has is that it depends heavily on the use of inflation and population growth to make the case for higher education spending in North Carolina. Unfortunately, the case isn't always honestly made. WER notes the differences in cost of living across counties. However, when providing teacher pay data, WER fails to mention the difference in cost-of-living across states. Such information would certainly have provided a more accurate comparison of teacher salaries across the nation and provided a more accurate picture of North Carolina teacher pay relative to surrounding states.
Finally, one last issue worth mentioning concerns test scores. Numerous times the report notes higher test scores (e.g. NAEP) or notes a decline in scores. However, the report never mentions why the scores were higher or why they were lower. Was it due to better students? Better instruction? Specific programs? More funding? No explanation is offered. The report recommends spending up to an additional $8 billion over 8 years, however no causal link is ever specifically identified. The report fails to identify or describe why additional spending will produce improved student outcomes. Authors seem to assume that additional resources or similar funding will produce similar results. It's an assumption without basis and should be challenged.
Implementing WER recommendations could force a constitutional crisis
A third and final criticism of the WestEd report is that implementing the report's recommendations could likely force a constitutional crisis between the judicial and legislative branches in North Carolina.
On January 21, 2020, Judge Lee signed a consent order
requiring parties to implement the recommendations and make the necessary systemic changes to ensure North Carolina is compliant with the requirements of Leandro.
The consent order also sets in motion a possible constitutional confrontation. Judge Lee knows the legislature is not a party to the case. But Lee knows the legislature's responsibility for funding the public schools. Lawmakers too must be involved in the Leandro remedy. The timeline Judge Lee laid out in early January assumed a willingness by legislators, the governor and policy leaders to work together on issues of school funding. Based on what has and has not happened in the interim and the economic fallout generated by the coronavirus crisis, I'm having difficulty believing that it was a realistic assumption.
Is moving forward with a consent decree a wise course of action?
Compelling the legislature to set prescribed levels of education spending - especially during a pandemic and mandated government shutdowns - violates the separation of powers clause
of the North Carolina State Constitution (See Article I, Section 6). The state constitution provides specific language for appropriations, which is the duty of legislators. The executive branch executes and administers the budget. It is important to realize that the constitution lays out no role for the courts in the budget process.
The North Carolina constitution states unequivocally that money for public schools can only be appropriated by the legislative branch. The legislative branch has the power of the purse. Any directive that compels the legislature to adopt spending recommendations is in direct violation of the constitution.
Public education and how it is funded will always be a hotly debated topic. Ideas about what children learn, how they learn and how much to spend, are inherently political questions. Our state constitution has a framework for answering questions on public education. After listening to parents, educators, policymakers and other concerned individuals, legislators develop policy and spending levels to help implement those policies. Lawmakers are often elected and defeated based on their views and votes on education and other issues. If a lawmaker is not responsive to voters on education, the remedy is the ballot box. To decide issues of public education any other way is to subvert the state constitution and to disenfranchise voters.
Of course, this is not to say the courts don't' have a role. The courts constitutionally defined role is to interpret the law and tell the legislature when laws are out-of-bounds. Problems emerge when courts are charged with developing the remedies to the cases on which they rule. Courts do not have the capacity or expertise to resolve intractable social problems. Judges are not educators, nor are they skilled social scientists. What evidence exists that the courts would have any better results boosting student achievement than state and local governments who have been wrestling with the topic for decades?
Have the courts improved student achievement or narrowed the racial achievement gap? History is filled with many experiments but little progress (see HERE
). In 1990, in Abbott v Burke II
, the New Jersey Supreme Court ordered school districts to aid low income districts. Taxpayers spent billions on school construction, universal pre-K and social services. Per pupil spending skyrocketed. Researchers say student achievement has flatlined and in some cases, declined. Sadly, there are other examples. Over 18 years in the 80s and 90s a federal judge ordered taxpayers in Kansas City to spend $2 billion on projects and programs to improve the Kansas City Public Schools. Per pupil spending shot to number one in the country. Despite the massive increases, the additional spending produced little gains in student improvement.
The Leandro decision said a right to an education is a right to a sound, basic education. When courts make such pronouncements, they create a positive right with a mandated outcome that expands the power and scope of government. For the past 25 years the North Carolina Supreme Court has been trying to define the state's responsibilities and doesn't seem any closer to resolving the problems it means to address.
Could it be that once the courts seize control of the public schools and try to offer a remedy to what are inherently political issues, it's near impossible for them to let go. Are the courts the right place to develop and implement the solutions to the questions we ask about school funding? Not according to the constitution. Those questions are best settled by the legislature through our elected representatives.
The WestEd report is straight out of the progressive playbook. It's an end run around that pesky obstacle the North Carolina Constitution as well as the will of the people through their representatives in the legislature.
The shortcomings mentioned offer reasons to give pause to the WestEd report. An even more compelling reason is that the WestEd report provides a legal and policy solution to a fundamentally political question: how should we educate our children; how much should we spend?
When Judge David Lee signed the consent order he ordered state leaders to improve North Carolina public schools.
How will lawmakers respond?
At a press conference earlier this week Senate President Phil Berger responded to a reporter's question about Leandro and funding for the public schools by saying that the state expects to face a revenue shortfall of billions of dollars caused by the coronavirus shutdown.
"Our Constitution does not provide for judges to appropriate dollars,"
Berger said. "We've said on multiple occasions that if judges want to get into the field of appropriating, they need to run for the legislature."
Berger's response was clear and pointed. He too believes the courts shouldn't be ordering appropriations or be involved in issues where they lack expertise or any history of success in the area. Questions of such fundamental importance like; How should we educate children? and, How should we fund schools? should not be litigated. They are to be decided by those we've chosen to address such issues; our legislators.
Lawmakers would do well to resist the prescribed funding levels and treat the WestEd report as a starting point for a discussion on education policy and funding and let the issue play out among the representatives who are elected to make those very decisions.