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What’s happening with the Page-Kashkari proposal for a constitutional right to ‘quality public education’

Minneapolis Fed president Neel Kashkari and former Supreme Court Justice Alan Page
Photo by Stan Waldhauser/Courtesy of the Federal Reserve Bank of Minneapolis
Minneapolis Fed president Neel Kashkari and former Supreme Court Justice Alan Page shown at the January unveiling of their education plan.

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.”

House Speaker Melissa Hortman
MinnPost photo by Peter Callaghan
House Speaker Melissa Hortman
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. 

Senate Majority Leader Paul Gazelka
MinnPost photo by Peter Callaghan
Senate Majority Leader Paul Gazelka
“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.

Comments (21)

  1. Submitted by Paul Yochim on 02/14/2020 - 08:51 am.

    Justice Page has a very good plan. If the teachers union is against it then I am for it. Good work, Mr. Page.

    • Submitted by Orville H. Larson on 03/01/2020 - 12:41 pm.

      Damn straight. Whatever the teachers’ union is for, I’m against, and vice versa.

      Teachers’ unions must shoulder much of the blame for the abysmal performance of the government–er, public schools. Teachers resist accountability, they oppose student testing, and they’re opposed to competition. In any case, the government–er, public schools–are a monopoly. There’s no incentive for reform.

      “Those who can, do. Those who can’t, teach.”
      –George Bernard Shaw

  2. Submitted by Patrick Steele on 02/14/2020 - 10:08 am.

    This is the new frontier for the ed reformers, I guess. The fervency of dismantling public schools in favor of charters has died down a bit so a new approach is to get public schools mired in court battles in the name of equality. It’s convenient how the people who are most aghast at the education gap treat the income gap, the wealth gap, the food security gap, the transportation gap, and so many others as personal failings of the families they claim to care so much about. Why isn’t the Business Partnership working to close the school lunch gap by advocating for free lunches? The only time a gap seems to matter is when there’s an opportunity to dismantle public goods.

  3. Submitted by Ray Schoch on 02/14/2020 - 10:34 am.

    Offhand, I’m skeptical about the proposed amendment, and for pretty much the same reasons the state teacher’s union is opposed. The term “quality” is one that can be – and surely will be – defined in a thousand different ways to suit the ideological bent of whoever is speaking or writing.

    Meanwhile, “Choice” in education is usually dog-whistle code for dismantling the public system in favor of “charter” schools that are not centers of innovation, as was originally envisioned by education leaders who initially came up with the idea, but are used as competitors (sometimes as bludgeons) to public schools. Instead of sharing what they’ve found that works, which is the justification for charter schools in the first place, they’ve sometimes even copyrighted materials and curriculums (paid for by public school parents with their tax dollars), then sold those items back to the districts and parents who paid for them in the first place.

    Thus, instead of helping public systems, they’ve often undermined them instead. In the process, “choice” has incentivized private and parochial schools. It’s essentially an invitation to return to the 1830s, when those with ideological axes to grind, whether left or right, or the money to send their kids to “better” schools, could get their wishes fulfilled, while most people were forced to home school, abandon the idea of educating their children altogether, or find a more affluent patron who was willing to sponsor their child(ren).

    And, as I’ve said before in similar MinnPost forums, school do not perform – whether excellently or poorly. It’s STUDENTS who perform, or not. Addressing the causes of student failure, specifically including the abysmal achievement gap, is much more difficult, complex, and likely expensive, than anything likely to be addressed by an amendment to the state constitution.

  4. Submitted by Pat Terry on 02/14/2020 - 11:03 am.

    This proposed amendment is just the same repackaged garbage by the corporate education “reformers” and their funders from the Wal-Mart family. So of course Minnpost is going to run 50 more pieces about it.

  5. Submitted by Bob Barnes on 02/14/2020 - 11:53 am.

    Govt cannot create a right. Fact is, there is no right to education or even access to education. You have the opportunity to access the education system. This will be another big tax on the citizens and certain people lining their pockets (Page and Kashkari being the first 2).

    You cannot mandate outcomes.

    • Submitted by kurt nelson on 02/14/2020 - 01:50 pm.

      Gov’t can’t create a right – the constitution says you’re wrong. Of course the government can create rights, and education is one of them. It is mandatory that children attend school until they reach an age where if they choose, they can drop out, but before that they don’t have a choice. The gov made this possible. Education is a right afforded by that document, and codified by the states constitution. You may not like it, but who cares.

      How will Page and Kashkari benefit financially over this – or did Faux news tell you they might, and that’s enough for you.

      • Submitted by Bob Barnes on 02/14/2020 - 05:06 pm.

        Rights do not come from government. Government creates privileges that it can also take away at any time. Rights exist because you exist and they supercede any form of government.

        I haven’t seen all of the details nor is it possible to know what the outcome will be but Kashkari is a banker and Page has been living on the govt dime for many years. You can bet they will profit from this in some or fashion.

        • Submitted by kurt nelson on 02/15/2020 - 09:40 am.

          Nonsense. Here’s an example: Before the mid 70’s abortion was illegal, then the Court ruled it was legal, thus creating a legal right for women to protect their own bodies. I could go on and on, but this should suffice that you don’t know what you’re talking about.

          Are you insinuating that justice Page was on welfare, being on the gov’t dime, or that he, as a supreme court justice was somehow gaming the system by being paid for his work, I can’t tell, but, that’s sort of racist there Bob.

        • Submitted by RB Holbrook on 02/17/2020 - 11:21 am.

          Alan Page earned a salary for serving on the Minnesota Supreme Court, and now (presumably) gets a pension as do all other retired jurists.

          They’re not all on welfare.

    • Submitted by Dennis Wagner on 02/15/2020 - 10:22 am.

      Tell it to the SCOTUS!
      https://www.crf-usa.org/bill-of-rights-in-action/bria-7-4-c-education-and-the-14th-amendment
      Of course we all know they got the ruling wrong twice now didn’t they?

  6. Submitted by Alan Straka on 02/14/2020 - 12:23 pm.

    Obviously proposed by a bunch of lawyers salivating over the money to be made from suing the state and local school boards.

  7. Submitted by Hiram Foster on 02/14/2020 - 12:31 pm.

    Of course what I thought of was the Boston School desegregation battle. The fact they don’t teach education policy in law school. What many lawyers come out of law school thinking is that they are the smarter than the rest of us which proves rarely to be the case. And as for economists, not even they think they are smarter than the rest of us.

  8. Submitted by Dennis Wagner on 02/14/2020 - 05:46 pm.

    Well, kind of as expected, society, taxpayers, teachers, schools etc, get all the responsibility, would seem that the onus is 100% on them, and what about the responsibility of the parents guardians etc.? Looks like they just lay back in the easy chair and say not my problem! Do you think maybe that is why things aren’t working just the way we would like them?

  9. Submitted by Bob Kraemer on 02/15/2020 - 08:51 am.

    We MUST get Politics OUT of Education! I have witnessed Republicans shifting the K-12 funding from the state level to the district level with disastrous results for over 50 years! Public Education has been attacked the entire time from one party. Shifting funding from Public Education to Private Charter schools is NOT the answer. Let us not forget that 90+% of students in Minnesota attend Public schools! We can no longer shift the burden of funding our children’s education on the local districts with increased property taxes. Ideally, it should the Federal Governments mandate to provide all of the funding which would guarantee equal funding for ALL students, not just the wealthy districts with the system we have now. Minnesota used to be the USA leader in quality education now we are ranked in the middle of all states. If we really want an educated workforce for the future we must demand that BOTH parties support equal funding for all students! We MUST make Education a TOP priority and make sure it is fully funded!

  10. Submitted by Hiram Foster on 02/16/2020 - 05:54 am.

    Making the judiciary more political isn’t a away of getting politics OUT of education. Courts by themselves do not have the resources or the expertise to do education policy, something by the way, no law school I know of teaches.

  11. Submitted by Jim Eisenreich on 02/16/2020 - 07:55 am.

    I agree with you, Bob K. but I hope that the federal government does not get involved in public education.

    • Submitted by Dennis Wagner on 02/17/2020 - 02:23 pm.

      Not to get cross wise, but perhaps having the federal governemnt involved is a good thing, sometimes?
      Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), was a landmark decision of the U.S. Supreme Court.

  12. Submitted by Terry Frawley on 02/16/2020 - 08:12 am.

    This may force the education system to address real problems with real solutions. The University of Minnesota has determined that early (birth to 3) is when the problem that needs intervention. Impoverished children’s vocabulary is often a quarter to a third of children kindergarten-ready. Children start to learn Executive Function at six months (behavior) when that has not been taught there are behavior issues in schools.
    Minnesota is already spending $400M on early childhood programs that are not being properly monitored.
    “Thus, we share your concern about the inadequacy of statewide data on early childhood programs and readiness for school. As indicated in our 2018 report, part of the problem is with state statutes, which do not require (1) assessment of school readiness in all early childhood programs, (2) all school districts or providers to submit assessment results to MDE, or (3) assessment of all children at the time they enter kindergarten. One reason that MDE has not published data on school readiness is because the available data are not representative of the state as a whole. Our report offered recommendations to both the Legislature and MDE for improving the state’s information on school readiness and program outcomes.” Legislative Auditor.
    High-quality daycare will go a long way to solve this problem. Some will say the breakdown of families is the problem, which may be true. The bottom line is we need to take care of all our children. Feed the ones that are hungry, and help those that need it. We may already be spending enough, but with no monitoring, it’s hard to tell.
    Perhaps this amendment will force us to review programs and look for new solutions.

  13. Submitted by Ron Gotzman on 02/17/2020 - 03:51 pm.

    It is amazing how the left attacks any changes that may challenge the largest – trickle down – special interest group in the State.

    Let’s invest in kids! Let’s empower kids and families!

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