I looked around the dilapidated North Philadelphia classroom
I shared with another teacher six years ago and thought, “There’s
got to be more I can do.” After four years, I still loved teaching and
especially loved my students, but there were challenges that I could not address.
I had thirty-five students in each class – and only twenty-six desks and
twenty-eight copies of the novel we were reading. Because the one hundred forty
students in my four sections of ninth grade English had to share these books,
a student who had been unable to follow the in-class reading or discussion could
not take one home. Many could have used the extra time to review, as several
were reading at the second- or third-grade level. My average ninth grader was
fifteen years old but could only read at the seventh grade level.
I left my position as a teacher thinking I would have more freedom to help young
people learn from outside the system that was failing them. But after two years
running a delinquency-prevention program in the same troubled community, I wanted
more for my students. I realized that I needed additional tools in order to
effect both individual and systemic change in urban education. When I applied
to law school, Boston College offered me a Public Service Scholarship, which
made it possible for me to study and practice new approaches to familiar problems.
When I began my first year of law school in 2002, prospects for reforming education
through law in Massachusetts were promising. Twenty years after the United States
Supreme Court held in San Antonio Independent School District v. Rodriguez,
that there is no federal constitutional right to education, the Supreme Judicial
Court of Massachusetts (SJC) in 1993 ruled in McDuffy v. Secretary of the
Executive Office of Education that the state constitution imposes on the
Commonwealth an “enforceable duty” to “provide education in
the public schools for the children there enrolled, whether they be rich or
poor and without regard to the fiscal capacity of the community or district
in which such children live.” Although the court declined to adopt as
its own the word “adequate” to describe the education that all students
must be provided, it did hold that this education must “prepare all students
to participate as free citizens of a free State to meet the needs and interests
of a republican government.” Moreover, the SJC declared that the state
was not fulfilling its constitutional duty. Rather than find any specific legislation
for school funding unconstitutional, the SJC set forth "broad guidelines"
concerning the capabilities that an educated child must possess and "presume[d]
... that the Commonwealth will fulfill its responsibility with respect to defining
the specifics and the appropriate means to provide the constitutionally required
education." Three days after the release of the McDuffy decision,
the Legislature enacted the Massachusetts Education Reform Act (ERA). With the
aim of providing “a consistent commitment of resources sufficient to provide
a high quality public education to every child,” the ERA substantially
restructured education funding in Massachusetts and established “uniform,
objective performance and accountability measures for every public school student,
teacher, administrator, school, and district in Massachusetts.” In 1996,
the Massachusetts Board of Education announced that all students, beginning
with the class of 2003, would have to pass the Massachusetts Comprehensive Assessment
System (MCAS) examinations in order to receive a high school diploma.
But McDuffy’s promise of an adequate education for all children
of the Commonwealth was never fully realized. A new group of plaintiffs representing
nineteen school districts brought the case back to the SJC, seeking further
remedial relief. A single justice of the SJC, the one remaining judge who had
participated in McDuffy, referred the case to a specially assigned
judge of the Superior Court to make findings of fact and recommendations. On
April 26, 2004, after a seventy-eight day trial that focused on evidence from
four “focus” school districts and included the testimony of 114
witnesses and entry of over 1000 exhibits, Judge Botsford issued a 318-page
report detailing educational inequities and inadequacies. She observed that
none of the focus districts was presently “equipping its students with
the capabilities described in McDuffy,” and that in “every
one of these districts, therefore, the students are not receiving the level
of education that the Commonwealth has a constitutional duty to provide.”
Eleven years after McDuffy, the Commonwealth was still in violation
of its constitutional obligation to educate children in its poorer communities.
Despite “substantial improvements in public education [that] had occurred
since 1993, significant failings persisted in the focus districts,” and
the funds that the focus districts received from the State were insufficient
to allow them to meet the standards of McDuffy. Judge Botsford recommended,
in essence, that the SJC direct the Commonwealth’s educational officials
to determine the actual cost of providing a constitutionally adequate level
of education for all children in the focus districts, and further direct them
to implement the funding and administrative changes required to accomplish those
goals. Finally, she recommended that the defendants be given a “definite
but limited” amount of time to make these changes, and that the SJC retain
jurisdiction over the remedial efforts.
A year ago, in February 2005, the Supreme Judicial Court declined to adopt Judge
Botsford’s conclusion “that the Commonwealth presently is not meeting
its obligations under” the Massachusetts Constitution, and “rejected
her recommendation for further judicial action.” In Hancock v.
Commissioner of Education, the plurality determined that although “serious
inadequacies in public education remain,” the Commonwealth “is moving
systemically to address those deficiencies.” The court noted that the
legislature was doing its best to tackle a difficult problem, and declined the
plaintiffs’ invitation to intervene. The irony of this holding is palpable
in a state where doing one’s best is not sufficient for a student to earn
a high school diploma if she is unable to pass MCAS, but we accept from our
Governor and our legislators a plan that is only “beginning to work in
significant ways.” Apparently, our legislators are held to a lower standard
than our students. In Hancock, the SJC denied the plaintiffs’
motion for further relief, terminated the single justice’s ongoing jurisdiction,
and disposed of the case in its entirety.
While Hancock was making its way through the courts of Massachusetts,
on the national level, No Child Left Behind (NCLB) was signed into law in January,
2002. Like the ERA, NCLB emphasizes stronger accountability and aims to ensure
educational opportunity for all children. Many educators oppose NCLB for its
focus on testing as the primary assessment of schools’ progress. Furthermore,
NCLB appears to have been drastically under-funded, prompting several states
to challenge the Act’s constitutionality or to opt out of its requirements,
thereby losing significant federal funding. Although NCLB promises to free children
from persistently failing schools, such promises, like those of McDuffy,
appear empty to the thousands of children who struggle, every day, to learn
in overcrowded, under-resourced classrooms like the one I left in North Philadelphia.
*****
After Hancock, what is left? What can lawyers and others do to realize
McDuffy’s promise of an adequate education “in the public
schools for the children there enrolled, whether they be rich or poor and without
regard to the fiscal capacity of the community or district in which such children
live”?
The Boston College Third World Law Journal spring symposium will address these
issues. The symposium will examine the next generation of challenges in obtaining
access to adequate education for at-risk students. A national panel will discuss
the role that courts and legislatures might play in determining what constitutes
an adequate education under state constitutions and in the current context of
education reform requirements. A state panel will focus on how Massachusetts
can improve education for at-risk students in the wake of the court’s
decision in Hancock v. Commissioner of Education, which refused to
issue an order requiring the state to increase funding to fully realize the
commitment of the Education Reform Act “to provide a high quality public
education to every child.”
The keynote speaker will be Derrick Bell, who now teaches at New York University,
and is an active proponent of educational equity. He has most recently authored
Silent Covenants: Brown v. Board of Education and the Unfulfilled
Hopes for Racial Reform.
National panelists include:
Michael Rebell, Executive Director and Counsel, Campaign for Fiscal Equity,
Inc.
William Koski, Professor of Law, Stanford University
Diana Pullin, Professor of Education Law & Public Policy, Boston College
Lawrence C. Johnson, Project Coordinator, Fifth Street Renaissance
Dr. Joseph O'Keefe, S.J., Dean of the Lynch School of Education, Boston College,
Moderator
State panelists include:
Michael Weisman, lead plaintiff’s attorney in Hancock v. Commissioner
of Education
Kathy Boundy, Co-Director, Center of Law and Education
Tom Birmingham, former state legislator and chief architect of Mass Education
Reform Act
Alan Rom, Massachusetts Appleseed Center for Law & Justice.
The Symposium will take place on April 21 from 1:30 - 5:30 p.m. at the law school
in East Wing 200. All are invited to attend. Please contact Joyce Dalrymple
at dalrympj@bc.edu for more information.