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What’s wrong with a constitutional amendment to improve education?

It is not clear that this approach is desirable, and it leaves policy formulation up to the distortions of plaintiff legal strategy — and not one necessarily based on promoting overall sound educational policy.

school lockers
Minnesota has one of the worst K-12 racial education achievement gaps in the country, and something needs to be done. Yet contrary to a recent proposal by former Minnesota Supreme Court Justice Alan Page and Minneapolis Federal Reserve Board President Neel Kashkari, amending the Minnesota Constitution to fix it will do little and potentially make it worse.

Minnesota has a persistent problem with race. The Twin Cities is one of the most racially segregated metropolitan areas in the nation. The state’s racial financial wealth gap is the worst in the nation. The racial incarceration gap is among the worst. There is a persistent racial health care outcomes disparity that is among the worst in America. Among so many measures Minnesota ranks among the bottom when it comes to racial issues. The same is true with K-12 education.

Minnesota’s story when it comes to race and education is an extreme example of what happened nationally. When the U.S. Supreme Court ruled in Brown v. Board of Education, 347 U.S. 483 (1954) that separate but equal was an unconstitutional principle when it came to segregated schools, many thought that this court case would promote integration and end racial disparities in education. Instead it produced an intense fight over schools, resulting in white flight from the cities to the suburbs, including in Minnesota, only exacerbating the problem.

Then when the Supreme Court ruled in San Antonio Independent School District v. Rodriguez411 U.S. 1 (1973) that educational funding disparities did not violate the U.S. Constitution, the Supreme Court effectively signaled it was abandoning the battle to address educational equality. Over the next 20 years it eventually issued several decisions that eased federal oversight or enforcement of desegregation. This shifted the battle to the states.

Waves of state litigation

The state battle was a litigious one. All 50 states have constitutional clauses that provide some guarantee of free public schools. The language varies across states, but like many, Minnesota’s original 1857 Constitution in Article XIII, section 1, called for a “general and Uniform system of public schools … throughout the state.” This language remains the same today. Over time, litigants used state constitutional clauses to address racial discrimination. Then there was a second wave of litigation to promote equal funding, then a third to demand adequate funding. Nationally and in Minnesota this litigation promoted some gains, but the problems persisted. Thus, it is not completely unreasonable to think that adopting new constitutional language would impose new state mandates and funding in Minnesota, thereby either allowing for new state policies to be developed or new options for litigation to force change.

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The Page and Kashkari proposed language is: “All children have a fundamental right to a quality public education that fully prepares them with the skills necessary for participation in the economy, our democracy, and society, as measured against uniform achievement standards set forth by the state. It is the paramount duty of the state to ensure quality public schools that fulfill this fundamental right.”

Legal change can promote social change. Except improving educational outcomes is more complex than simply passing an education constitutional amendment.

A number of flaws in approach

There are numerous flaws in the constitutional amendment approach. First the achievement gap is part of a complex process of racial and economic segregation in housing and neighborhoods. It is also a product of wealth, income, and health disparities. Students of color are more impacted by these problems than are whites. No matter how much one tries, it is hard to study and achieve in school with a growling belly, or when you’re forced to move constantly because of costly housing, or because parents are working multiple shifts or unable to afford day care. Performance in school is hugely driven by background socio-economic forces that this constitutional amendment will not address.

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David Schultz
Second, in the very first education classes I ever took my teacher drew a triangle on the board and on one corner wrote school, and then home and community on the other two corners. He then said that students are educated in all three places – school, home, and community – with teachers, parents, and others all working to educate. His point was to drive home that schools and teachers at best are responsible for one-third of all the learning that takes place with students. Teachers cannot teach unless parents and other reinforce what they do and what their children learn in school. We need to strengthen not just what schools do, but also parents and families. A simple constitutional amendment will not do that.

Third, the proposed amendment measures equal achievement by way of standardized test scores. Overwhelming research already documents the racial and class biases built into these tests. Additionally, especially since the days of No Child Left Behind, under President George Bush, the push for standardized testing has proven to be highly flawed. Teachers are forced to teach to the test and curriculum limits learning to rote activity so that students do well on these exams.

Fourth, and perhaps the biggest flow, is that the constitutional amendment does something without doing anything. It puts all the energy into changing the Constitution, but it kicks the more fundamental problems down the road. The language is not a self-executing amendment, but it will require legislative action to define what are “the skills necessary for participation in the economy, our democracy, and society.” This mandates important decisions to be made to define these skills, how to construct a curriculum to achieve desired goals, who can teach, and how to fund all of this.

The problem hasn’t been law, but political will

Current constitutional language does not prevent the development of any of this; the problem has not been law but political will. New constitutional language as suggested by Page and Kashkari too will not guarantee it, but instead would potentially push critical decisions about educational decisions into the courts, where judges will have to make these decisions. It is not clear that this approach is desirable, and it leaves policy formulation up to the distortions of plaintiff legal strategy — and not one necessarily based on promoting overall sound educational policy.

Finally, stripping the language of uniformity from the current Constitution does run the risk of opening the door to more privatized education. In Florida, the Florida Supreme Court in Bush v. Holmes, 919 So.2d. 392 (Fla. 2006) used the uniformity clause to strike down a voucher system in that state. Take away a uniformity clause and one increases the risk of undermining public schools. Thus, this language arguably would make the state less responsible for educational performance if it produced more private schools. All of this is additional to evidence that charter schools have exacerbated segregation, and at best there is mixed evidence that the school choice models have improved educational quality in Minnesota or internationally.

Page and Kashkari should be commended for raising the issue of educational achievement disparities and the need for a new public policy approach. But it is not clear that their constitutional amendment approach will achieve the outcomes Minnesota needs.

David Schultz is a Hamline University professor of political science. His latest book is “Presidential Swing States: Why Only Ten Matter.” 

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