1575 As part of our work with the Nellie Mae Education Foundation on educational governance issues in Rhode Island, Angela Romans – AISR’s co-director of District & Systems Transformation – sat down with Tim Duffy, executive director of the Rhode Island Association of School Committees, and Tim Ryan, executive director of the Rhode Island School Superintendents’ Association, to talk about education as a constitutional right. We’ve included an excerpt from their interview below; read the full interview hereThis is the second in a series of three interviews on education governance. For more information, visit our Rhode Island Education Governance Forum publication page. 

Could you give some background on the legal precedent for the view that education is a constitutional right, and why this is a focus area for you?

1576 Tim DuffyTIM DUFFY: In 1993 the Massachusetts State Supreme Court ruled that the Massachusetts method of funding education was unconstitutional. Within six months, the legislature enacted and the Governor signed into law the Massachusetts Education Reform Act. After that ruling, in 1993 Pawtucket and Woonsocket filed suit in Superior Court in Rhode Island alleging that the way we funded education relying on property taxes violated the constitutional rights of students in two ways: it violated Article 12 of the state constitution, which is the education article; and it also violated Article 1, the Equal Protection Clause, which essentially says you cannot create one citizen different from the other, that in providing public services you have to have equity across the board.

About five years ago, Pawtucket and Woonsocket filed a new suit. The allegation again was that the property taxes deprived students in Pawtucket and Woonsocket of the opportunity for an adequate and equitable education. The State Supreme Court said that they were alarmed about the condition of education in Pawtucket and Woonsocket, but they nonetheless reaffirmed the earlier Supreme Court ruling that education is not a constitutionally protected right in the state.

Since then, and even prior to the first court ruling, we have filed legislation, along with several other advocacy groups, asking the General Assembly to put a referendum on the ballot to change Article 12 and guarantee that education is a constitutional right.

What do you feel needs to happen in order to make education a constitutional right in terms of governance in Rhode Island?

TIM DUFFY: Absent a constitutional amendment, the legislature and the governor will always opt to fund education as they choose. We are ranked 45th out of 50 states in state support for public education, and 54 percent of our education funding derives from property taxes. It’s above the national average. It’s above the New England average. We’re funding schools on an antiquated tax, which in and of itself is not necessarily equitable. So, if citizens, students, or school districts don’t have the ability to litigate this and say, “You have to make the payment,” then we’re going to spend the money on things that policymakers may feel are flashy and important, and only a suit is going to force debate to come to the table. And in Massachusetts they made massive investments in education – hand in hand with the Mass Reform Act, which ushered unprecedented accountability into the education system – and the results are stunning.

TIM RYAN: When we talk about governance, obviously finance is key, but it’s also about who are making the decisions and who are paying for those decisions. For 1578 Tim Ryanexample, in Providence and Central Falls large percentages of kids go to charter schools. The legislation that set up charter schools was passed by the state, but the voters in Providence have no say where the funds go. And there are piecemeal state laws around governance, but separate from the local taxpayers who have to pay the bills. Another example is the Met School1, where districts have to pay tuition to a program over which they have no control.

In thinking about the governance issue in terms of local communities trying to do right by their kids, the questions are: do they have the resources internally and at the municipal level to provide them? (and in general the suburban communities have those resources); and two, do they have the authority to make decisions about where their money goes? (and I think in a number of urban districts, they don’t). So the governance issue is also a democracy issue, about people being able to vote and allocate their resources. And I think we have a lot of contradictions within existing state law over finance and governance, and these issues keep bubbling up – career and tech education, charter schools – because there is no policy coherence around finance and governance.

Let’s say the Rhode Island Supreme Court ruled that all students had a constitutional right to an education here, and then that provided the legal basis on which advocacy groups and community activists could [act]. What do you see as the next steps in trying to create equitable education, and what governance issues could you see being changed by that legal ruling?

TIM DUFFY: I think that it would force the legislature and the Governor to adjust their budget allocations to make sure that the school districts that are in the greatest need and the communities that have the highest property-tax burdens would get some relief. In terms of governance, schools are still considered to be municipal entities according to the State Supreme Court, so there is a limited amount you can do. It’s still going to be property-tax dependent. But you need to have at least the opportunity to litigate, and it’s all going to emerge from litigation. That’s what I see on the horizon. And that’s how students and parents are going to be able to have a voice in the system and the process.

TIM RYAN: We definitely need both financial coherence and policy coherence. In Central Falls, because of the large number of kids who go to charter schools, that district has a higher percentage of kids with special needs remaining, and that starts to become an equity and constitutional issue.

TIM DUFFY: There have been a number of lawsuits across the country – in California, in New York – by students and students’ rights groups alleging that the seniority system and tenure has effectively denied them their civil rights to an adequate meaningful education. But they couldn’t file that suit in Rhode Island, because education is not a constitutionally protected right.

And we haven’t even talked about infrastructure. A district self-assessment four years ago calculated that 1.9 billion dollars is needed to bring schools up to standards that are just adequate, and it’s no secret that the urban areas have schools in the worst conditions, the oldest schools. I think Woonsocket has a school that predates the First World War. There is massive discrimination taking place right now, and the State Supreme Court justifies it.

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1a state-funded public school district and local education agency which enrolls students in 6 small schools across the state