In January, Neel Kashkari, president of the Minneapolis Federal Reserve Bank, and Alan Page, former Minnesota Supreme Court justice, called on Minnesotans to support a new strategy to eliminate academic disparities based on race and income level.
That work begins, they say, with a constitutional amendment to the state’s education clause.
Current language provides students access to an adequate education system. They want to upgrade that language, making a quality education a civil right for all Minnesota children.
The changes would “put power in the hands of families, where it belongs,” Page said in a press release — alluding to the fact that those not being served properly by the education system would have greater legal standing to prompt meaningful reforms through the courts.
In order to get a proposed change on the ballot, however, they’ll need to build support at the state Capitol — for a majority vote in both the House and the Senate.
While state leaders have commended the effort, they’ve so far been reluctant to throw their weight behind it. And the state teachers union, Education Minnesota, has come out in strong opposition.
When asked about his position on the proposed changes at the Forum News Service’s pre-session forum earlier this month, Gov. Tim Walz stuck to “It’s a great conversation starter.” House Speaker Melissa Hortman, DFL-Brooklyn Park, added the House will be holding a full-day symposium on the “opportunity gap.” But, again, no clear support for the course of action proposed by Kashkari and Page.
Senate Majority Leader Paul Gazelka, R-Nisswa, addressed the proposed amendment a bit more directly, noting his position has already begun to shift.
“I’d publicly said I’m not warm to the idea of a constitutional amendment related to this, partly because I want to protect the Legislative process,” he said. “But I also want to say I’m willing to explore it, because what we have been doing has not been working.”
It’s something they’ll be pressured to reconsider as a grassroots campaign effort continues to ramp up in support of the proposed amendment changes. That includes efforts led by the newly formed Our Children MN coalition — a bipartisan group led by Mike McFadden, a businessman and Republican nominee for U.S. Senate in 2014; Mike Ciresi, a prominent lawyer and DFL candidate for U.S. Senate in 2008; and Rashad Turner, former leader of Black Lives Matter St. Paul, who now leads an advocacy group called the Minnesota Parent Union.
“There are many examples from around the country of different jurisdictions that had great improvement in their public education outcomes, based on different policies,” McFadden said. “This will force that dialogue to continue and concrete action to actually happen. We expect the Legislature to do their job. And if they do their job, it won’t get to the courts.”
Raising expectations, legislating to meet them
Researchers with the Minneapolis Federal Reserve Bank have been closely examining the strength of states’ constitutional education clauses to see how this language has intersected with major reforms in state education funding and academic outcomes.
To start, they identified 312 proposed education amendments to state constitutions made it to state ballots between 1990 and 2018. Of those, 193 passed. Minnesota’s education provision, however, has remained untouched since its establishment in 1857.
Currently, the Minnesota Constitution states “it is the duty of the legislature to establish a general and uniform system of public schools.”
The proposed language drafted by Page and Kashkari gets more specific, stating “all children have a fundamental right to a quality public education” and noting it’s “the paramount duty of the state to ensure quality public schools.”
The report holds up Florida and Louisiana as examples of states where constitutional changes that strengthened education clauses translated into reforms and improved academic outcomes.
In Florida, revisions adopted in 1998 prompted a slate of legislative actions the following year, including raising teacher certification standards, new monitoring and intervention policies to address student attendance issues, reorganizing its state education system, and more.
In Louisiana, constitutional changes paved the way for the state Legislature to create a state-run Recovery School District, allowing it to take over chronically low-performing schools — a purview expanded to the takeover of entire districts after Hurricane Katrina.
“What we do in the case studies is we basically show that an education amendment was passed and, chronologically, looked to see what happened afterward,” said Rob Grunewald, an economist with the Federal Reserve Bank of Minneapoils, noting his team is currently further exploring the impact of these sorts of constitutional amendments.
What it looks like when the courts get involved
Washington serves as an interesting example, for another reason: It demonstrates how constitutional litigation can prompt major education funding reforms.
To start with, Washington’s education clause already included the type of language Page and Kashkari are proposing for Minnesota — including “paramount duty” language that sets education up as a top responsibility of the state. It’s been there since statehood in 1889.
This language came in to play during a string of Supreme Court cases dating back to the ’70s — first the Doran rulings and then the McCleary v. Washington decision — that ultimately resulted in major education funding reforms at the state Capitol.
The two family plaintiffs of the landmark McCleary v. Washington were joined by a broad coalition of more than 400 organizations that included the state teachers union, ed reform groups, school districts and more. They essentially argued that the state was failing in its duty to adequately fund the K-12 public school system — a reality exemplified by the fact that districts had become reliant on local levy dollars to pay for key parts of a basic education, like teachers. In 2012, the state Supreme Court ruled in their favor, ordering the Washington Legislature to come up with a school funding solution. It took an additional six years, and a contempt ruling, for these major reforms to be implemented.
But now that the financial burden has shifted back to the state, it’s there to stay. The state’s education funding obligation doesn’t go away when its budget gets tight, says House Majority Leader Pat Sullivan, D-Covington.
“In the situation where we have a revenue decline, you can’t reduce that funding for school districts. The court was very clear that your financial situation has no impact on decisions you make around K-12. Once you’ve defined ‘basic education,’ you can’t take money away unless there’s an educational rationale. It can’t be a fiscal rationale.”
Mary Lindquist, former president of the Washington Education Association during much of this work, says the union had turned to the courts in the past and found them to be effective in prompting state action.
“There was a concern — a realistic one — that really enforcing funding at the state level would mean a loss of local control — something that’s very much part of our culture. We ultimately made the decision that it was a risk worth taking,” she said, noting the ability to secure teacher pay and lower class sizes were major wins.
Here in Minnesota, the state teachers union does not see a similar opportunity to secure full funding for public schools from the state, if the Page-Kashkari proposal were to succeed in bringing Minnesota’s education clause more in line with Washington’s.
Rather, it’s advocating to maintain the constitutional requirement for a “uniform” system of public education, arguing the Page-Kashkari proposal paves the way for private school vouchers.
A legal analysis of the proposed changes
The lead attorney for the plaintiffs in the McCleary case, Tom Ahearne, says there are a number of new key phrases in the Page-Kashkari proposal that hold promise in terms of creating the conditions for constitutional litigation to drive education funding reforms.
First, the “all children” piece — also included in a Washington education clause — prevents a state Legislature from writing off any children.
“The fact that this provision says “all” does mean all,” he said. “Here, the Supreme Court rejected the state’s argument that ‘most’ is enough.”
Declaring access to a quality public education as a “fundamental right” also elevates the level of interest the courts have in getting involved, he says.
Also important, he adds, is the “paramount duty of the state” part, because it means education funding comes before all else. “It comes first, before roads, before salaries for Legislators, before construction, before anything,” Ahearne said. “Being the paramount duty is a big deal — and that’s how courts read it.”
And the proposed language puts the onus on “the state,” rather than on “the legislature” — a detail Ahearne says proved to matter a great deal in Washington.
“When it says ‘state,’ that means all three branches of government. That means: ‘Courts, you do have a dog in this fight. It’s your duty, also, to ensure this is done,” he says, adding it prevented the courts from deferring to the legislature simply because they control the purse strings.
The courts can’t force their legislative counterparts to write a check, Ahearne adds. But they do hold the power to shut down school systems that they deem unconstitutional. So even in instances where these two government bodies have butted heads, the judicial branch won out.
“If this proposed language is adopted, you will have a coalition of people in relatively poorly funded schools will have a strong case to get the courts to order the legislature to increase the funding for those schools,” he concluded.