Constitutional Crisis Brewing Over Path of WestEd Recommendations? | Eastern North Carolina Now

Publisher's note: This post, by Bob Luebke, was originally published in Civitas's online edition.

    Despite inconclusive evidence that increased spending produces better outcomes, in early December, Superior Court Judge David Lee released a consultant's report that recommended spending another $8 billion over eight years to ensure the state complies with the constitutional requirement to provide all children an opportunity to receive a sound, basic education.

    Advocates for greater school funding argue that courts have long led the reform efforts in education and proudly point to cases to end segregation and enforce academic equality. However, equality and quality are not the same issues; nor are they governed by the same constitutional or legal provisions. The consultant's report contains many recommendations. Still, it's unclear whether Judge Lee intended the report as a final product for North Carolina officials to adopt or merely as a starting point to guide the discussion. Uncertainty over those questions colors the debate.

    Could Judge Lee compel the legislature to implement the recommendations? Is such a prospect likely? On January 10, Public School Forum reported:

• The parties to the case are expected to develop and agree upon a consent order that may include some or all the recommendations contained within the WestEd report that our state's lawmakers will be required to follow. It's unclear when that order will be submitted and made public by Judge David Lee, but we do know that Judge Lee has scheduled a hearing with counsel for January 21st in Wake County.

    An order to compel the legislature to implement the WestEd recommendations - including spending levels - rests on shaky legal reasoning and would be bad policy.

    Compelling the legislature to set prescribed levels of education spending violates the separation of powers clause of the North Carolina State Constitution (See Article I, Section 6). The state constitution provides specific language for appropriations, which is the duty of legislators. The executive branch executes and administers the budget. The state constitution lays out no role for the courts in the budget process.

    If the court orders the legislature to implement spending levels mentioned in the report, it should set off alarms. If the courts can legally require the legislature to spend a certain amount of money in education, why couldn't the courts do the same in other fields such as healthcare, transportation or criminal justice? It would only further erode the constitutional authority of elected legislators.

    Many of the current recommendations mentioned in the report derive from the widely-held assumption that greater financial resources lead to better student outcomes. However, a thorough review of the research shows the link between spending and student achievement to be inconclusive at best.

    Stanford University Education professor Eric Hanashek, an expert on school finance and outcomes, argues that spending on inputs such as lower teacher ratios, a higher percentage of teachers with Master's degrees, and lower class sizes has increased in the last five decades but not yielded any increases in student achievement. Moreover, considerable research points to the fact that how schools spend money is as important as the level of spending.

    Hanashek has spent his career showing that the relationship between funding and student achievement to be inconclusive and influenced by many factors. Indeed, the issuance of the Coleman Report in 1961 bolstered such reasoning when it found that educational outcomes to be more influenced by family background than by spending on teachers or smaller class sizes.

    This is not to say money is not important, or to deny the beneficial impacts it can have. Additional resources can indeed have an immediate impact on schools in extreme poverty. However, the benefit of additional resources for schools in moderate- and higher-income areas is more questionable.


    Massive infusions of financial resources have not led to improvements in student achievement. A 2014 report by the CATO Institute reviewed forty years of spending and educational outcomes and found that while spending has increased significantly, educational outcomes have remained flat.

    Over 18 years during the 1980s and 90s a federal judge ordered taxpayers in Kansas City to spend over $2 billion on projects and programs to improve the Kansas City Public Schools. With the judge's order came a massive increase in property taxes and a 40 percent increase in salaries of teachers and school personnel. Per pupil spending shot to number one in the country among the 280 largest school districts. Despite massive increases, the additional spending produced little gains in student improvement. In 1995, the US Supreme Court (Missouri v. Jenkins) ended the desegregation case when it ruled the lower court overstepped its authority by ordering across-the-board state-funded salary increases and other remedial education programs whose funding could not be sustained by local government.

    But back to the WestEd report. The report highlights some problem areas and makes some good recommendations, like the need to revise current funding formulas and make principals more effective and autonomous. The report, however, is too focused on finances. Like other studies developed around the country, to determine if current funding levels are sufficient, adequacy studies and lawsuits for additional funding have been going on for years. However, are such studies valid, since no research shows a specific level of funding that will lead to increases in student achievement? That said, adequacy studies like the WestEd report prove no different than any other policy document produced by some interest group.

    But that's the point. Public education and how it is funded will always be a hotly debated topic. It's importance and the cost of public education help to ensure that. Ideas about what children learn, how they learn and how much to spend, are inherently political questions. And our constitution has a framework for answering those questions. Legislators are elected and tasked with addressing these questions. Legislators are charged with appropriating funds for schools and setting policy, they listen to other legislators, educators, interest groups and the public. They are elected and defeated based on their stance on education and other issues. If a lawmaker is not responsive to voters on education issues or other issues for that matter, he or she is accountable to the voters, as intended by the constitution.

    Progressives and those on the Left have a long history of using the courts to get what they can't achieve via the legislature. In this case, education advocates want the courts to significantly boost education funding. We should wonder if that's the case why were those involved with drafting the report intent on leaving out current lawmakers. A Carolina Journal article reports that no Republican lawmakers were contacted to participate in focus groups leading up to the release of the WestEd report.

    Again, there is an assumption that the courts are the best vehicle to remedy such complicated topics as school finance and boosting student achievement. The Leandro case began nearly a quarter-century ago. That it continues today attests to the complexity of the issue as well as the shortcomings of the courts.

    Do the courts have the capacity and expertise to solve entrenched problems like student achievement? Judges are not educators. What evidence exists that the courts would have any better results boosting student achievement than state and local governments who have been wrestling with the topic for years. The courts simply lack the capacity and breadth of knowledge to solve complicated problems. If the courts prescribe funding levels for education, it is likely to destabilize systems of education that have existed for decades.

    Can North Carolina public schools comply with Leandro requirements under the current financing system? It's an important question and one of the questions that framed the WestEd study. North Carolina public schools may very well need additional funding. Yet, legislative leadership was not included in the process and has little time to formally respond to the document.

    There is something frightening about an appointed judge - unaccountable to the public - and whose views on education are little known - having the ability to decide complex political issues. Progressives constantly deride private schools, calling them "unaccountable." Yet what sort of accountability is there when a San Francisco-based organization (WestEd) can issue significant policy recommendations that are imposed upon duly-elected legislators by an unelected judge?

    Our state constitution states unequivocally that money for public schools can only be appropriated by the legislative branch. The legislative branch has the power of the purse and that questions regarding schools and school funding are to be decided by the lawmakers. Because consent orders to compel the legislature to adopt spending recommendations violate our constitution and disenfranchise voters, North Carolinians should be wary of any plan that short-circuits our constitution. It's a fight we need to win.