Suing Schools

Does poorly educating students violate the state Constitution? A judge will decide

How New Mexico educates its children is in the hands of a state judge as arguments in a landmark trial against the state Public Education Department have ended. Over eight weeks, the trial featured dozens of witnesses and numerous academic citations. But in the end, the case before First Judicial District Judge Sarah Singleton boiled down to dueling worldviews.

The plaintiffs—the New Mexico Center on Law and Poverty and the Mexican American Legal Defense and Educational Fund (MALDEF)—cited education outcomes for low-income, Native American and English language learners as evidence that New Mexico does not meet its constitutional obligation to provide a sufficient education for all children. They want the state to target at-risk students earlier and with greater resources to help close the education achievement gap.

"It was very clear from the defense that the state is in denial about the educational crisis that New Mexico students face," said Marisa Bono, MALDEF Southwest regional counsel.

State education officials, however, said that while it is unfortunate that not all New Mexico students read at high levels or are adept at math, it doesn't violate the constitution. They cautioned that money alone can't guarantee better outcomes and emphasized the importance of raising expectations and holding school districts and teachers accountable.

The Martinez administration did not respond to a request for comment, but acting Education Secretary Christopher Ruszkowski testified during the trial and characterized the view that poverty drives poor educational outcomes for certain students—an argument made by the plaintiffs—as "the soft bigotry of low expectations."

The end-of-court testimony on Aug. 4 was the latest phase in the 2014 lawsuit the plaintiffs filed against a backdrop of the perennial drumbeat of bad educational news. A ruling expected this fall or winter could help set the foundation for New Mexico's educational future.

New Mexico's education statistics are familiar and persistent: 49th or 50th in the nation in educational outcomes since 2012, according to the Annie E Casey Foundation; only a quarter of third-graders proficient in reading and math on the 2015 PARCC test; 43 percent of New Mexico college students needing remedial classes in 2015, according to the Public Education Department. The Center on Law and Poverty and MALDEF lawsuit hammered on those statistics during the trial to prove the state underfunds education by as much as $600 million. Additional money would enable the state to expand to all school districts programs shown to improve educational outcomes for low-income students, among other things, they said.

One example is the K-3 Plus program, which adds 25 days to the school year for low-income students in kindergarten through third grade. A Utah State University study found that kindergarteners in the extended school year were more prepared for school and outperformed their peers, and that the effects continued four years later.

As effective as it is, K-3 Plus is in only around 50 of New Mexico's 89 school districts, and while nearly 70,000 students attend program-eligible schools around the state, only a fifth of them will receive instruction this summer.

In recent years, school spending has risen for pre-kindergarten and K-3 Plus despite trying economic times. This leads John Arthur Smith, chairman of the Senate Finance Committee, which helps write the state budget, to question whether some districts are spending dollars efficiently. He also pointed to other states in the Southwest that are spending less per student but getting better results.

Utah spends $6,500 per student, the lowest per-student spending in the United States. That compares to the $9,752 New Mexico spent per student in 2014-15, according to the US Census. However, the percent of children living in poverty in Utah is less than half that of New Mexico, according to the Annie E Casey Foundation 2017 Kids Count report. And, just 5.9 percent of Utah students are English language-learners. In New Mexico that number is 16.1 percent, according to the Education Commission of the States.

"I'll concede some of those [states] might not have the diversity of population of ethnic groups," Smith said. "But even within this state, one of the highest [for] at-risk schools, we have pretty high performance. Gadsden [Independent School District] was sort of an example of that."

Advocacy groups and some legislators say New Mexico has made some improvements, but it's not enough; and while it is true that education funding from the state has risen in recent years, it is still below the pre-2007 recession levels. Also ripe for review, advocates said, is how the state parcels out its education dollars to schools.

At one point, New Mexico's funding formula was one of the most progressive in the nation—in the late 1960s and early '70s, Edward Tabet-Cubero, executive director of the New Mexico Center on Law and Poverty, said. The State Equalization Guarantee, a per-student funding formula, helped to even out vast disparities between districts in richer and poorer areas of New Mexico. But now, it's time to look at that formula again, he said.

Some legislators say the money is there to improve New Mexico schools. What is lacking, they said, is political will.

"It's not like we don't know where there are funds that we ought to be able to use," said Sen. Mimi Stewart, D-Albuqerque, a former educator and chair of the Legislative Education Study Committee. Extra funding for schools could come from raising the rate on what top earners pay in state personal income tax, which was lowered by Gov. Bill Richardson and the Legislature in 2003. Reversing changes made to the corporate income tax rate by Martinez and the Legislature in 2013 could help, too. Tapping the Land Grant Permanent Fund, a fund generated by the state's natural resources and used to support schools, and overhauling the state's gross receipts tax also could yield more education dollars, advocates said.

But persuading Gov. Susana Martinez, a second-term Republican governor, to sign a tax hike would be unlikely. "We have a governor who, regardless of reason or purpose, doesn't want to raise taxes," Sen. Bill Soules, D-Las Cruces, another former teacher, said.

Even if the plaintiffs prevail in court, any turnaround in education will be years, perhaps even decades in the making, advocates acknowledged. The state PED under Martinez is likely to appeal the ruling if it loses, as would the advocacy groups if Singleton sides with the PED. The trial's results are likely just the end of the beginning of the court battle.

Smith, for one, doesn't believe the judge will order a particular dollar amount. But with the lawsuit seeking $350 to $600 million, he doesn't see where that's going to come out of a state government that has lots of empty jobs and shortfalls. "Everyone says, 'Look over here for money.' We can look over there, but that's not enough to wad a shotgun as far as making the fix in the event we lose that case," he said.

A longer version of this story was originally published by New Mexico In Depth, with Trip Jennings contributing reporting.

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