The Page Amendment is a Trojan horse to destroy public schools | Opinion

March 28, 2022 6:00 am

Federal Reserve Bank of Minneapolis President Neel Kashkari testifies before a legislative committee. Also pictured is former Supreme Court Justice Alan Page, who is advocating with Kashkari for the education constitutional amendment. Photo courtesy of Minneapolis Federal Reserve.

Supporters of what they call the “Page Amendment” to the Minnesota Constitution say their proposal will create an individual right to a quality education. Who could be against that? Nobody, right? But what if the proposal is a Trojan horse that destroys an important state obligation to students and school districts in the process?

In the current session of the Minnesota Legislature, lawmakers will consider whether to pose a referendum question to voters this fall to replace the current Education Clause of the state Constitution with the “Page Amendment.” Principal champions of the amendment are Neel Kashkari, president of the Federal Reserve Bank of Minneapolis, and Alan Page, a former associate justice of the Minnesota Supreme Court.

The main thing the proposal does is throw decades of Minnesota jurisprudence on education equity into a cocked hat and invite a blizzard of education litigation, with uncertain and almost certainly undesirable results.

Presently, the Education Clause of the Minnesota Constitution, Article XIII, Section 1, says:

The stability of a republican form of government depending mainly upon the intelligence of the people, it is the duty of the legislature to establish a general and uniform system of public schools. The legislature shall make such provisions by taxation or otherwise as will secure a thorough and efficient system of public schools throughout the state.

The amendment, as offered in the Senate, reads as follows:

All children have a fundamental right to a quality public education that fully prepares them with the skills necessary for participation in the economy, our democracy, and society, as measured against uniform achievement standards set forth by the state. It is a paramount duty of the state to ensure quality public schools that fulfill this fundamental right. The duty of the state established in this section does not infringe on the right of a parent to choose for their child a private, religious, or home school as an alternative to public education.

[The last sentence is not included in the Page Amendment bill offered in the House.]

Let’s review current law 

To appreciate the infirmities of the amendment, some understanding of two Minnesota Supreme Court cases, Skeen v. State of Minnesota (1993) and Cruz-Guzman v. State of Minnesota (2018), is required.

In Skeen, the court held that Minnesota’s Education Clause, which has been a part of the Constitution since the founding of the state, imposed a mandate on the state to maintain a funded, equal protection right to an education. There is no corresponding mandate under federal law.

The complaint of the plaintiffs in Skeen was that some school districts had a greater tax capacity than others and could provide more “extras” to students above the state school-aid formula; Edina and Elk River were two districts chosen for comparison. There were 52 school district plaintiffs in Skeen, including the Virginia (Minnesota) Independent School District, and many other rural districts.

In what was probably a strategic error, the plaintiffs stipulated that the state aid formula at the time provided adequate funds to the districts for the constitutionally mandated education; the Court ruled that no constitutional violation under the Education Clause had occurred. The Court noted that state law limited the extra amounts that could be raised by individual districts. 

Alan Page was an associate justice of the Court at the time Skeen was decided, and he dissented in the result because he thought that all students, wherever located, should receive absolute parity in funding. He’s also obviously aware, though, that the Skeen case held that the state had an equal protection mandate to provide and fund an education to all students, based on the Education Clause’s “general and uniform” and “thorough and efficient system” language.

I think Skeen was correctly decided, and it provides constitutional precedent for districts and students and their parents to sue the state for inadequate funding, which is what the Cruz-Guzman case is about.

The “general and uniform” and “thorough and efficient system” language, which exists in similar form in many states, is deleted in the Kashkari/Page proposal.

The plaintiffs in Cruz-Guzman, St. Paul and Minneapolis public school students and their parents, complained that the state’s per pupil funding formula, and its funding of highly segregated charter schools, was an equal protection violation under Skeen.

That segregated charter schools have diverted money from traditional public schools is undeniable. For example, Hmong College Prep Academy, which has been in the news over an illegal investment by its former superintendent, receives more than $20,000,000 a year from the state in per pupil funding.

When traditional public school enrollment diminishes, the per pupil revenue diminishes; it harms the ability of the districts to deliver quality education and forces them to close neighborhood schools. St. Paul proposes to close several schools in the coming year; this is exactly what the Cruz-Guzman plaintiffs are complaining about.

The Supreme Court agreed in Cruz-Guzman that the claims were justiciable, that is, they were the proper subjects of litigation under the Constitution. The case is now back in the lower court for proceedings consistent with the Supreme Court ruling.

The birth of the Page Amendment

The Kashkari/Page proposed amendment initiative was born shortly after the Supreme Court’s decision in Cruz-Guzman. There are parties, including parties who operate highly segregated charter schools in the state, who argued in Cruz-Guzman that the issues raised were political questions, and therefore not justiciable. In other words, the courts were not the proper place to decide matters of equal protection under Skeen. Now, many of the same parties support the Page Amendment.

When asked about the prospect of litigation because of the constitutional change, proponents of the amendment offer a variety of answers. There won’t be additional litigation, say Kashkari and the staff of the Fed. (The staff of the Fed? How is it proper that a federal bank is advocating for a change in Minnesota constitutional law?) We have a fine judiciary, says Alan Page. And some amendment supporters say, Bring on the chaos.

The game that’s really afoot 

There are people, including me, who believe the Kashkari/Page proposal will effectively overrule the Skeen and Cruz-Guzman cases. There are multiple reasons for believing that.

1. It would have been absurdly simple to write a proposed amendment that established an individual right to a quality education without eviscerating the obligation of the state to maintain a “general and uniform” and “thorough and efficient system” of education. Why would you take that out? It’s the language that Skeen relies on for the state’s duty to provide and fund an equal school system across the state. The champions of the Page Amendment have been pressed on this, including by high school students in Rochester.

Alan Page says, Well, the duty to fund is implied. No, it’s not. In fact, as a matter of legal construction, the reverse is true. If something that is explicitly required by the Constitution is removed, the only possible conclusion is that it is no longer required. Anything else is wishful thinking. Page seems to be saying that we should ignore the language of his own amendment.

2. The right to a quality education already exists under Skeen. Mike Ciresi, another public school critic, said as much in an interview with a MinnPost reporter in 2014. The proposed amendment adds nothing but takes something very important away.

The plaintiffs in Skeen were a mix of individuals and school districts. By making the education right an explicitly and exclusively individual one, the Page Amendment may — probably does — deprive school districts of the right to sue the state for adequate funding on behalf of all their students and the district itself. The districts would no longer have what lawyers and the courts call standing.

This is a particular problem for rural school districts. Remember that the plaintiffs in Skeen agreed that the school aid formula was adequate to provide an education at the time the Skeen case was decided — 1993. Many public school advocates would tell you that is not true today; it hasn’t been for a long time. 

If Skeen is good law, districts can sue the state for adequate funding. If it is repealed by the Page Amendment, they probably cannot. If you are a rural school administrator, or any school administrator, really, this should be sobering to you.

Rural district plaintiffs were onto something in Skeen. Because of smaller enrollments, higher transportation and other costs due to their distributed nature, and less tax capacity, rural districts rely more on the per pupil formula.

Inadequate funding of schools by the state was also an issue that featured prominently in the just-ended Minneapolis teachers’ strike. The district said, in effect, we can’t afford to pay you fairly. There’s a Skeen remedy here, but not if Skeen’s constitutional underpinnings are knocked out.

3. The Page Amendment is also silent on the remedies available to an individual plaintiff suing for the violation of it. It doesn’t even say what a violation of it is. The proposed amendment just refers to uniform achievement standards “set forth” by the state. Exchanging the holding in Skeen for the political football of state mandated test standards is a bad trade.

Making a constitutional right turn on an act of the Legislature or governor is also no way to write a constitution.

Destruction of public education is the goal of some 

It’s as though the Page Amendment was designed to make public schools fail and then provide remedies for private school education at public expense. In fact, the last sentence tacked onto the Page Amendment bill in the Republican-controlled Senate makes that explicit.

It is not difficult to imagine writing standards that are designed for schools to fail, giving parents or parent groups a right to sue and ask for court-ordered vouchers or private school tuition. If the Page Amendment becomes part of the Constitution, and the Republicans ever run the table, they can make every city public school a failure in an instant and the object of a Page Amendment remedy.

I believe that the Page Amendment would do irreparable harm to public education. Regrettably, because of the popularity of Alan Page and the superficial appeal of the language, I’m afraid the amendment has more legs than it deserves. 

Let’s hope that our legislators look beyond its sloganeering appeal. It is up to their constituents to help them do that.

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