PDF versions can be found at www.ncforum.org/archives.htm
Volume 4,
Issue 42
Hoke Briefs Filed;
Oral Arguments Scheduled for Fall
Briefs
were filed this spring and the state Supreme Court
will hear oral arguments this September in the decade-long school finance
lawsuit between
The
state presented three questions in their brief: (1) “Did the trial court apply
the wrong standards for determining when a student has obtained a sound basic education, for determining causation and for determining defendants’ liability?” (2) “Did
the trial court err when it held that pre-kindergarten programs are
constitutionally required for at-risk students?” (3) “Is the proper age at which children
should be permitted to attend public schools a nonjusticable
political question reserved to the General Assembly?”
After presenting their argument about the
current status of and the documented improvement of North Carolina’s public
schools, the state attacks the trial court’s standard for determining whether
children are receiving their opportunity to receive a sound basic
education.
“Instead,
plaintiff-parties advanced blanket claims that the system of public education
is constitutionally flawed because it provides
insufficient funding. First, what is the measure of whether students
have obtained the knowledge and skill that constitutes a sound basic education?
This standard is essential because only a student who has not obtained a sound
basic education can claim to have been denied his
right to an opportunity to obtain that education. Second, what is the standard
for determining whether a student who has failed to obtain a sound basic
education failed because defendants denied him that opportunity?…The trial
court’s answers to both questions are fundamentally flawed, violate Leandro I , and
are contrary to other fundamental legal principles and precedents. Therefore, the judgment must be reversed” (page 12-13).
One of the state’s main objections is the trial
court’s reliance on end-of-grade (EOG) and end-of-course (EOC) test data as the
sole standard of student performance.
The state’s contention rests on the assertion that the General Assembly
has forbidden EOG and EOC scores to be used as the
sole determinant for academic promotion.
“The
trial court expressly rejected as proof that a person has obtained a sound
basic education any other standard or measure, including grades, teacher
evaluations or a high school diploma, unless supported by Level III test
scores. In relying on
standardized tests as the exclusive measure of a constitutionally adequate
education, the trial court improperly substituted its judgment for that of the
legislature, which has determined that critical academic decisions cannot be
based on standardized test scores alone…Unquestionably, established law
required the trial court to presume the all legislative determinations about
administration of public schools, including determinations regarding the grading
and classifying of students. However, contrary to law and the
instructions of Leandro I , the trial court crossed the line
separating law from policy, cast aside the legislative judgment that students
should not be graded or classified by standardized tests alone” (page 14).
After decrying the trial court for over
stepping its bounds and usurping legislative authority, the state castigates
the trial court for its over reliance on Level III
grade proficiency as the indicator of students receiving their opportunity to
receive a sound basic education. The
state argues that too much of the onus for student success is placed on the
state rather than on individual initiative.
“The
trial court’s conclusion that students’ failure to perform at Level III on
standardized tests proves that defendants are denying them an opportunity to
receive a sound basic education is logically flawed and effectively lifted the
burden of proof from plaintiff-parties’ shoulders, contrary to Leandro I and other decisions” (pages
28-29).
The state continued detailing why it
thought the trail court placed too much emphasis on the state’s responsibility
and not enough upon the individual student.
“In this case,
neither defendants nor public schools are the only entities that contribute to
academic achievement. The trial court itself found that socio-economic factors
such as poverty and low parental education and job skills are among the causes
of low student test scores. The trial court
found also that parental involvement is a powerful force in a student’s
educational experience. Further, one cannot ignore the fact that students
themselves have a significant responsibility for their education. Every teacher
who testified for plaintiffs agreed that students are substantially responsible
for their own academic achievements. They stated that, while they
provided their students with educational opportunities, it was up to students
to study and learn” (page 25).
The state has consistently rejected the
trial court’s assertion that the court has the authority to authorize a
pre-kindergarten program and that a pre-kindergarten program is an appropriate
remedy. The state argues that if
pre-kindergarten programs are an appropriate remedy, it is the prerogative of
the legislature not the court to enact.
“To the
extent the trial court ordered early childhood education as a remedy for
violation of the rights of plaintiffs or intervenors,
that order should be reversed. The record in this case does
not support any determination that defendants have violated the constitutional
rights of any party, or of any student, or that defendants have denied local
school boards the capacity to provide their students an opportunity to receive
a sound basic education…The trial court had no power to order a remedy absent a
proper determination that defendants are violating the Constitution” (page 37).
“To the
extent the trial court held that pre-kindergarten education is itself a
separate or distinct constitutional right, the trial court also erred.
Pre-kindergarten programs, such as those being implemented by the legislative
and executive branches independent of this litigation, are intended to help
at-risk children” (page 38).
“Quality pre-kindergarten education can affect academic
achievement, but the decision to provide pre-kindergarten programs as opposed
to other effective educational programs is clearly a nonjusticiable
political question reserved to the legislature…Whether to provide at-risk
students with the opportunity for pre-kindergarten education, however, is not a
question of what is constitutionally
required, but a question of when
educational opportunities must be provided” [emphasis added] (page 42).
The plaintiffs presented three counter
arguments to the state’s claims: (1) “The trial court’s consideration of test
scores data was in accordance with this court’s directions and the state’s own
policies.” (2) “The State has a constitutional duty to
provide the opportunity for a sound basic education to all children, and it
cannot evade this duty by blaming educational inadequacies on children or local
officials.” (3) “The trial court’s
determination regarding the need for pre-kindergarten accords with the state’s
own position outside this litigation, and does not impinge on any executive or
legislative prerogative.”
The plaintiffs contend that the state
cannot ignore the very data that it using to tout the success of the state’s
accountability and education system. The
state does not solely rely on EOG and EOC test scores.
“His ultimate conclusion – that the State was in violation of its
duty to provide an opportunity for a sound basic education for all students –
rested in substantial part on the State’s own standards and data, as well as
expert studies, factual testimony, and documents regarding all aspects of the
education process…The State’s challenge to this evidence is ironic, both
because this same data is the foundation of the State’s system for improving
schools and because the data was repeatedly relied upon by the State’s experts,
witnesses, and attorneys at trial” (page 19).
“The
decision below accordingly does not take standardized tests as the sole measure
of the State’s performance, but rather rests on an extensive body of evidence
of both educational inputs and outputs besides EOG and EOC test scores. For
example, the trial court cited extensive evidence that Hoke
high school graduates were not well-qualified even for low-level jobs with local
employers” (page 23).
The plaintiffs address the state’s
assertion that the trial court relied too heavily on standardized test scores
in express violation of a legislative mandate not to use EOG and EOC scores as
the sole determinant.
“The
trial court’s consideration of the standardized test scores is consistent with
the State’s own reliance on the same tests to evaluate the performance of
school districts, schools, and students. In this appeal, however, the State has
sought to minimize the significance of this evidence. The State’s attempt here
is based largely on a statute that deals with an entirely separate subject –
student grade level determinations made by principals”(page
27).
The plaintiffs’ contend that the state has
the constitutional duty to provide children with the opportunity to receive and
sound basic education and that they cannot avoid that
responsibility by blaming local school systems, teachers, or students.
“That is, a low-performing school
cannot excuse itself by claiming that its students performed poorly because
many of them lived in poverty or were from poorly educated families. Similarly,
such a school cannot excuse itself by claiming that its students watched too
much television or chose not to do their homework. The reason such excuses are
not allowed is that they run counter to the basic premise of our State’ s education system that all children can learn” (page
35).
The state’s contention that local officials are responsible for failing
students not receiving their opportunity to receive a sound basic education is
soundly rejected by the plaintiffs.
Local control has long been a feature of
“Nevertheless, as the State admits, ‘[t]he legislative and
executive branches of State government are ultimately responsible
[emphasis added] under the Constitution for establishing a system of public
schools in which all students have an opportunity to receive a sound basic
education.’ Despite this admission, the
State also contends that the plaintiff districts are the ‘root causes’ of
students failing to receive a sound basic education, and thus the State should
not be held liable. Here, just as with its effort to blame school
children, it seeks to avoid liability by finding another scapegoat. This
effort to blame local school districts is, however,
foreclosed by the Constitution. The Constitution does not impose a duty
on local school districts. Rather, it imposes a duty on the State ‘to guard and
maintain’ the right to education” (pages 42-43).
“The Constitution permits the
State flexibility, and it may use a system of local control as long as that
system is providing students with the required opportunity for a sound basic
education. [emphasis added] Where, as here,
students are not receiving the opportunity for a sound basic education, the
State cannot excuse its failure by reference to local control, or refuse to
remedy the problem out of deference to local school officials. Otherwise the State’ s constitutional duty as defined in Leandro would be meaningless” (page 44).
The
state’s argument that the trial court overstepped its authority by requiring a
pre-kindergarten program for at-risk children is countered by the plaintiffs’
contention that the trial court did not rule that pre-kindergarten program were
a “distinct constitutional right.” The
plaintiffs assert that the trial judge left the “nuts and bolts” of a
pre-kindergarten program up the legislative and executive branches.
“Furthermore, the State’
s attack on the concept of special assistance for children who are at-risk of
educational failure is inconsistent with the testimony of the State’ s own
witnesses and with its policies. Witnesses for all parties recognized that
children from economically disadvantaged backgrounds have particular
difficulties in gaining proficiency in school…In sum, the State’ s challenge to
the trial court’ s determination regarding pre-kindergarten is unfounded. The
trial court never found the separate constitutional right that the State
proposes to challenge. The State’ s own witnesses and policies, as well as
other evidence, establish the need for and effectiveness of such programs in
providing a sound basic education” (page 49).
For copies of these briefs plus the plaintiff-intervenor’s brief, go to www.ncforum.org