As part of our work with the Nellie Mae Educational 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.

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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?

1581 Tim DuffyTIM DUFFY: In 1993 the Massachusetts State Supreme Court ruled that the Massachusetts method of funding education was unconstitutional. Within six months of that ruling, 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.

In 1994 the case was finally adjudicated at the Superior Court level. The Superior Court judge agreed with the plaintiffs, [saying] that Woonsocket and Pawtucket students had been shortchanged because of our overreliance on property taxes and that education is a right under our constitution. A year after that the State Supreme Court overruled the decision, [saying] in fact that education is not a right, that the constitution in Rhode Island does not provide it as a right for anyone in the state, and because it is not a right it therefore doesn’t violate the Equal Protection Clause, because we’re not talking about basic fundamental rights.

About five years ago, Pawtucket and Woonsocket filed a new suit. Again, it made its way to the State Supreme Court. The allegation again was that the property taxes deprived students in Pawtucket and Woonsocket of the opportunity for an adequate and equitable education. The new spin on this was that since the first suit the state had adopted standards, and they had adopted assessments to measure how well students were meeting those standards and expectations; the students in urban communities were not, and it was because of the lack of resources. 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.

TIM RYAN: There is such a need for this, for all the legal and historical reasons that Tim just mentioned. And I think there is general agreement around 1582 Tim Ryanthe state – by superintendents, by school committees, by the community at large – that we have to have our curriculum aligned, that you shouldn’t get a different set of instructional techniques and curriculums and assessment depending on where you live. And in Woonsocket and Pawtucket in particular, they are still grossly underfunded districts, especially when you consider the socioeconomic status of the kids. We do have Department of Education regulations in the Basic Education Plan, but there is a sense that they are aspirational, toothless. We need more teeth in those regulations to make our local communities dedicate resources. We need the Department of Education and the legislature to step up and provide equity and adequacy.

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. This is the last year of the funding formula equity offset, so if the state is facing a recession – and let’s face it, our economic indicators are trending down right now – and the 34 million dollars that they put into the 36 districts for educational funding only becomes 20 million, where does [a city] get its money when it’s property-taxed out? It’s not that the citizens are that miserly. It’s just that they’re taxed out. It’s an antiquated system that depends on property taxes.

We are ranked 45th out of 50 states in state support for public education, and 54 percent of our education funding derives from the property taxes. It’s above the national average. It’s above the New England average. So we’re funding schools on an antiquated tax, which again 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 what? We’re going to spend it on things that policymakers may feel are flashy and important, and it’s only a suit that 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 in unprecedented accountability into the education system – and the results are stunning.

TIM RYAN: But even within districts with the implementation of the more equitable funding formula seven years ago, like Providence, Pawtucket, Central Falls: their taxes have gone up, but every nickel has gone to the municipal side. There has been limited local contribution to the school system. They’re not going to be able to fully fund their district, but the fact is that political decisions are made to spend money on police and fire and civic improvements as long as the money for education is coming in from the state. So there has to be a legal mechanism to shift the burden to the state but also require local communities to make those contributions to the school systems.

TIM DUFFY: If you take a look at Providence, we spend right now in excess of 150 million dollars on teacher retirement pensions for the state. That’s 60 percent of the employers’ share. [In RI the state only pays for 40% of the employer's share, the remaining 60% employer share is paid by school districts through their city or town appropriation.] In Massachusetts the state funds the entire employer share. In Connecticut the state funds the entire employer share. We’re setting up a situation that absent the courts compelling the legislature and local government to make investments in education, the policymakers will sit back and say, “Well, tighten your belt.” Well, we’ve been tightening our belt for over a decade now, and the only recourse that I can see is if the courts say, “We don’t really care about your pension problems. You’ve got to fund education.”

When you look at places like Pawtucket and Woonsocket, they are thousands and thousands and thousands of dollars below the statewide average per pupil. Our per-pupil spending is below the New England average, and we would be the lowest in New England were it not for Maine, which is a largely rural state. So, we’re below the New England average, we’re below New York, we’re below New Jersey, we’re below the Atlantic states in terms of our per-pupil spending on education, and even with that the state is abysmally abdicating its responsibilities to fund it, because they just don’t come up with it. I know I hear this from the leaders at the State House, “How many hundreds of millions we’ve invested in education.” Well, in the grand scheme of things it pales in comparison to what other states are doing.

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 example, in Providence and Central Falls large percentages of kids go to charter schools. The legislation that set up the 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 it’s separate from the local taxpayers who have to pay the bills. Another example is the Met School, 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, at least according to the State Supreme Court, so there is a limited amount you can do. For instance, a lot of people talk about regionalization: “Why don’t we have one big school district?” Well, there is another provision of the state constitution called the Home Rule Charter Article, which essentially says if you change any form of governance the voters have to pass it. In the Foster-Glocester school system, when the towns merged the communities united for middle school and high school, but they have never been able to agree to unify the entire elementary school, which I think consists of five schools, three in one community, two in the other.

So from a governance perspective, unless we change Article 13 as well, it’s still going to remain pretty much a locally driven exercise. 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: You hate to say that we couldn’t come together at the municipal and state level to come up with a better system, but I’m very pessimistic that that is going to happen. In Massachusetts once the courts ruled that the system was unconstitutional people came together, every group – municipalities, school committees, superintendents, teachers unions – and they all gave something up to make a better system. Teachers gave up tenure. School committees gave up hiring. There was a lot of depoliticizing the entire system, and the system benefitted tremendously. And without the legal jurisdiction to force the issue, I think we still have local decisions being made that aren’t in the benefit of kids.

So 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 much higher percentage of kids with special needs remaining in that district, and that, to me, starts to become an equity and constitutional issue, too – to segregate kids with special needs in one segment of the district.

I think that this has huge implications across the board and it’s no easy thing. Is it solvable? Yes. Massachusetts did it. But I think short of the legal hammer, I don’t know that there is enough that can be done from all the diverse interests, especially now when people want it both ways: they want to cut the car tax, but that’s a huge revenue issue; where is the revenue going to come from? That’s a real challenge.

TIM DUFFY: Our State Supreme Court is basically looking at it saying, “We don’t have the money, so we’ll just kick the can down the road and let the kids suffer.”

We will put forward legislation again this year. And hopefully we’ll be able to impress the General Assembly that it’s an issue that needs to be put on a referendum. But outside of finances, 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. They had no recourse.

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 the worst 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 – and I’ll be honest and say that it was a political decision, because the language in our constitution is not that far removed from Massachusetts. I have looked at all 50 states’ constitutions, and none of them specifically say it’s a right, but you can interpret through the language of what the framers of it meant, what the intention was. 

  

1579 An excerpt from this interview can be found on our blogThis is the second of a series of three interviews on education governance. For more on AISR's work on educational governance, see our Building a Governance Ecosystem publication page.