April 10, 2018

Teachers Across America are Striking Because Courts are Shrinking from School funding Fight

Joshua E. Weishart Professor of Law and Policy, West Virginia Universtity

*Originally published in The Los Angeles Times.

Teacher strikes in West Virginia, Kentucky and Oklahoma manifested growing frustration with state disinvestment in public education over the past decade. But these protests and walkouts are not just a story about state budgets. Teachers are being forced to rise up in part because most state courts are shrinking from their duty to enforce the state constitutional right to education.

All 50 state constitutions entitle children to a quality education. (The U.S. Supreme Court declined to recognize a comparable federal right under the U.S. Constitution.) For decades, many state courts enforced that right, striking down school funding schemes as inequitable and inadequate. State legislatures and governors mostly dragged their feet in response, achieving partial compliance with court orders at best. Still, court interventions led to increased funding that studies showed improved educational achievement.

Then came the Great Recession. States used budget shortfalls to justify cuts to education spending. The devastating effects are still being felt today. General funding per student remains below pre-2008 levels in at least 12 states, down more than 11% in West Virginia, 15% in Kentucky, and a staggering 28% in Oklahoma, the largest percentage decline in the nation. In total, 29 states provided less overall state funding per student in 2015 than in 2008. California was in a similar situation in 2015 with state school funding down 11%. That was notably before the Local Control Funding Formula and Gov. Brown's latest budget proposing billions to fund it.

The recession also emboldened state legislators, and their foot dragging turned into foot-stomping defiance to court-directed increases in school funding. The New Jersey, Kansas and Washington supreme courts have held state legislators' feet to the fire, insisting on compliance despite, in some instances, being threatened with impeachment and efforts to unseat them in judicial elections.

Those three courts are the exception, however. The majority of state courts have opted to retreat. For instance, the California Supreme Court — the first state high court to strike down a school funding system as unconstitutional in 1971 — recently declined to review two cases invoking its right to education, one challenging teacher tenure statutes, the other alleging that school funding is constitutionally inadequate.

A number of courts retreat by deferring to their state legislatures to devise the remedy. The legislature predictably resists or returns with a modest plan, which then provokes successive rounds of litigation, and in the end judges usually throw up their hands. As one court put it, all but admitting defeat, getting the legislature to make a good faith effort is "the best we can do." State legislatures thus win by attrition.

Still other courts have waved the white flag before the first shot, claiming their constitutions vest the legislature with absolute authority over education and therefore courts cannot get involved. The Oklahoma Supreme Court is one of seven state high courts to have surrendered in this manner. The constitutional right to education in these states is thus unenforceable in a court of law.

Amid this crisis of judicial confidence, striking teachers have appealed directly to the court of last resort: the court of public opinion.

Born in desperation, the #55United movement in West Virginia unexpectedly matured into an empowering pro-education crusade that spread in wildcat fashion to Oklahoma, Kentucky, and likely beyond. There are rumblings of discontent in Tennessee and Arizona. California may not be immune: according to a 2018 study, it ranked just below West Virginia in teacher wage competitiveness.

Teachers need make no apologies about agitating for better wages and benefits. That's what the bulk of school funding is spent on after all — to pay teachers to educate our children. Decades of empirical research confirms that teacher quality is the most influential educational resource affecting student achievement within a school's control.

By that proper framing, these teacher-led demonstrations are attempts to vindicate the constitutional rights of children in perhaps the only viable forum left. The West Virginia teacher strike proves that strategy can work. The resolve of the Oklahoma teachers, who continue to strike despite a preemptive $6,000 pay increase passed by lawmakers, proves that teachers see the bigger picture in their demands for funding to address other school needs. What teachers in West Virginia and Oklahoma accomplished in a matter of days might have taken years of protracted litigation for a court to order, only then to be resisted at every turn by the legislature.

As inspiring as the teachers' movement has become, the dysfunction that helped create it is worrisome. If public opinion eventually turns on teachers, then the fate of public education will be decided exclusively in statehouses where entrenched forces remain hard at work for wealthy, politically powerful communities, not disadvantaged children. In fact, there is an effort underway in legislatures across the country to amend state constitutions to weaken education rights or strip courts of jurisdiction to enforce them.

Just such a bill recently cleared a legislative committee in Kansas. An amendment proposed in Wyoming would have permitted courts to declare that the legislature violated the constitution but disempower courts from ordering increases in school funding. A similar measure proposed in West Virginia would have given the legislature nearly unreviewable authority over education.

With no help forthcoming from the federal government, we need state courts to reengage and fulfill their constitutional duties. Then, we need teachers, parents and students to rise up and demand compliance with the state constitutional right to education.

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