The Fed’s education constitutional amendment would turn schools over to economists and lawyers | Opinion

April 6, 2021 6:00 am

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At first glance, the constitutional amendment proposed by Minneapolis Federal Reserve President Neel Kashkari and former Supreme Court Justice Alan Page to give every Minnesota student a right to a “quality public education” seems like a great idea. Who could argue with a right to an education?

But education law and policy is complex, and the devil is in the details. In the Kashkari/Page proposed amendment, the details include a raft of defects and concerns — problems so severe that a national group of civil rights professors and lawyers recently warned that the amendment “threatens students’ rights.”   

The most fundamental problems with the proposal are contained in the exact wording of the amendment. Most of its provisions already exist in Minnesota law. Other parts don’t have any established legal meaning. One clause seems to base school policy around standardized achievement tests. And worst of all, by deleting the existing education language in the state constitution, the proposed amendment risks removing important student protections that currently exist.

The primary purpose of the proposed amendment is to establish that there is a “fundamental right to a quality public education” in Minnesota. Fundamental rights are rights that receive a high degree of legal protection. Here’s the problem: there is already a fundamental right to an education in Minnesota. This was decided in 1993, in the Minnesota Supreme Court case Skeen v. State. So in this respect, the amendment isn’t really adding anything new.

Supporters of the amendment, which is now being considered by the Legislature, have mostly ignored this reality, and focused heavily on the fact that Minnesota students currently have a right to an “adequate” education. The Kashkari/Page amendment, they point out, would create a right to a “quality” education. 

This change might seem significant, but it has little real effect. The reason is simple: educational “adequacy” is a concept with a robust legal meaning, while “quality” doesn’t have any established legal meaning at all. A long line of court cases have established that schools can be inadequate because they are underfunded, poorly staffed, academically insufficient, or even racially segregated. By contrast, the idea of a quality education is highly subjective. There is no definition of “quality” in Minnesota law. The amendment would replace a defined term with an undefined one.  

In fact, the proposed amendment seems to acknowledge this, because it instructs the state to specify what a quality education is, using “uniform achievement standards set forth by the state.” This, too, is confusing. Minnesota already has achievement standards, so all this clause seems to do is require that schools achieve certain test scores — or else be deemed constitutionally insufficient. 

Linking students’ rights to test scores would be a step backwards. Under current law, Minnesota students have rights that extend far beyond academic achievement. For instance, the constitution’s current language requires that the state create a “thorough and efficient” system of funding, which prevents the state Legislature from cutting school funds below a certain level. The current language also requires that the system of public schools be “general and uniform.” In 2018, the state Supreme Court said this requirement is incompatible with racially and economically segregated schools. 

If the proposed education amendment passes, all these words — “general and uniform,” “thorough and efficient,” and any mention of funding systems — would vanish. In their place would be a system in which Minnesota students were guaranteed standardized testing and little else. As nationally renowned civil rights professor Elise Boddie recently testified to the Minnesota House, these changes “threaten to reduce, rather than increase, the rights of Minnesota students.”

But beyond the legal concerns with the amendment, there are also serious questions about how, in practical terms, it’s supposed to create positive change. After all, putting a requirement in the state constitution doesn’t magically make that thing occur. (If it did, we should add a constitutional requirement that every student get straight As and go to a top university.) In the real world, there has to be a mechanism to transform constitutional language into real, effective school policy change. What is the mechanism here?

Although supporters of the amendment have been understandably cagey on this question, the apparent answer is “new lawsuits against the state.” Promoting the amendment, the Federal Reserve has said that “the courts are there to protect everyone’s rights, and a single civil rights case brought by one family can drive changes that help all families.”

Here’s how such a lawsuit is likely to occur: A group of families would identify something about the school system that they believed was lowering test scores. They’d file suit against the state, arguing that it was constitutionally required to change the offending policy. Groups of economists would argue back and forth in court about which policy has better research data supporting it. Eventually, the judge — a total novice on these matters — would have to choose the better policy, based on which one would create higher test scores. 

This isn’t just speculation. Such lawsuits have already been attempted. In 2016, a group of parents filed suit against Minnesota, claiming that the state was failing to provide education that satisfied the “qualitative standard” required by the constitution. Their solution, however, was unusual: They wanted to get rid of Minnesota’s job protections for teachers. The parents claimed that research showed that eliminating teacher tenure would raise student achievement, and that because of this, tenure was unconstitutional in Minnesota. 

The implication of this case was too much for the courts, which were unwilling to say that the only consideration in education policy is test scores, and reluctant to take major considerations like teacher employment out of the Legislature’s hands. The case was roundly defeated in the district court, and then defeated again in the court of appeals. 

But the idea of court-adjudicated, test-score driven education policy lives on. Several of that case’s key supporters have thrown themselves behind the Kashkari/Page amendment, including local charter school lobbying group EdAllies — whose board member was lead attorney on the tenure case. 

At its core, the education amendment seems less like an attempt to strengthen constitutional rights — in fact, it reduces them! — and more like an attempt to turn schools over to economists and lawyers. It’s not hard to see why this approach is attractive to the Federal Reserve, but it’s debatable whether it’s an efficient, fair, or democratic approach to setting education policy. Minnesota’s educational disparities are severe and urgent. But there are better solutions than the Kashkari/Page constitutional amendment.


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Will Stancil
Will Stancil

Will Stancil is a research fellow at the University of Minnesota Law School Institute on Metropolitan Opportunity. His work focuses on civil rights law and policy in housing and education.