Commonwealth of massachusetts

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss.

____________________________________

)

) SUPERIOR COURT

JULIE HANCOCK1 and others2 ) CIVIL ACTION

) NO. 02-2978

)

vs. ) and

)

) SUPREME JUDICIAL COURT

DAVID P. DRISCOLL3 and others4 ) FOR SUFFOLK COUNTY

) SJ-1990-0128

____________________________________)

REPORT

INTRODUCTION

This case has been referred to the Superior Court by a single justice of the Supreme Judicial Court (Greaney, J.). While it now has a Superior Court docket number from 2002, it is in fact the remedy phase of two cases that respectively commenced in 1978 and 1989 and were later consolidated in the Supreme Judicial Court for Suffolk County. See McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545 (1993) (McDuffy.)5 At issue here is the plaintiffs’ request for a remedy for what they consider to be the Commonwealth’s continued failure to provide them with the level and quality of education required by the Massachusetts Constitution.6

BACKGROUND

I. THE McDUFFY CASES AND DECISION

The two original McDuffy cases were brought by sixteen and nine students, respectively, in a total of twenty different cities and towns of the Commonwealth. They sought a declaration that the Commonwealth had not fulfilled its duty to give them the education that was required by Part II, c. 5, § 2, of the Massachusetts Constitution, and that the Commonwealth’s entire school financing scheme violated that provision as well as arts. 1 and 10 of the Massachusetts Declaration of Rights. In December 1992, a single justice reserved and reported both cases without decision to the full court on an agreed record consisting of 546 stipulations of agreed facts and a joint appendix containing six volumes of documents.

The court issued its decision in McDuffy on June 15, 1993. The court confined its consideration to the question whether “the constitutional language of Part II, c. 5 § 2, is merely hortatory or aspirational, or imposes instead a constitutional duty on the Commonwealth to ensure the education of its children in the public schools.” Id. at 550-551.7 Following a review of the history of public education in Massachusetts and the intention of the framers of the “education clause” in the Constitution, Part II, c. 5, § 2, the court ruled as follows:

“. . . What emerges from this review is that the words [“duty” and “cherish” in c. 5, § 2] are not merely aspirational or hortatory, but obligatory. What emerges also is that the Commonwealth has a duty to provide an education for all its children, rich and poor, in every city and town of the Commonwealth at the public school level, and that this duty is designed not only to serve the interests of the children, but more fundamentally, to prepare them to participate as free citizens in a free State to meet the needs and interests of a republican government, namely the Commonwealth of Massachusetts.

“This duty lies squarely on the executive (magistrates) and legislative (Legislatures) branches of this Commonwealth. That local control and fiscal support has been placed in greater or lesser measure through our history on local governments does not dilute the validity of this conclusion. While it is clearly within the power of the Commonwealth to delegate some of the implementation of the duty to local governments, such power does not include a right to abdicate the obligation imposed on magistrates and Legislatures placed on them by the Constitution.”

Id. at 606 (emphasis in original). The court went on to conclude that, on the record before it, the plaintiffs had proved that the Commonwealth had failed to meet its obligation:

“We need not conclude that equal expenditure per pupil is mandated or required, although it is clear that financial disparities exist in regard to education in the various communities. It is also clear, however, that fiscal support, or the lack of it, has a significant impact on the quality of education each child may receive. Additionally, the record shows clearly that, while the present statutory and financial schemes purport to provide equal educational opportunity in the public schools for every child, rich or poor, the reality is that children in the less affluent communities (or in the less affluent parts of them) are not receiving their constitutional entitlement of education as intended and mandated by the framers of the Constitution.

. . . .

“. . . The bleak portrait of the plaintiffs’ schools and those they typify . . . leads us to conclude that the Commonwealth has failed to fulfil its obligation.”

Id. at 614, 617 (footnote omitted).

Finally, the court addressed the issue of remedy. It declined to find any legislative provision for school funding unconstitutional. Rather, it set out guidelines concerning the capabilities that an educated child must have, and “presume[d] . . . that the Commonwealth will fulfil its responsibility with respect to defining the specifics and the appropriate means to provide the constitutionally-required education.” Id. at 619 n. 92. The court stated:

“The crux of the Commonwealth’s duty lies in its obligation to educate all of its children. As has been done by the courts of some of our sister States, we shall articulate broad guidelines and assume that the Commonwealth will fulfil its duty to remedy the constitutional violations that we have identified. The guidelines set forth by the Supreme Court of Kentucky fairly reflect our view of the matter and are consistent with the judicial pronouncements found in other decisions. An educated child must possess ‘at least the seven following capabilities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable students to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient level of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.’ Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 212 (Ky. 1989).

“These guidelines accord with our Constitution’s emphasis on educating our children to become free citizens on whom the Commonwealth may rely to meet its needs and to further its interests. . . .

“The content of the duty to educate which the Constitution places on the Commonwealth necessarily will evolve together with our society. Our Constitution, and its education clause, must be interpreted ‘in accordance with the demands of modern society or it will be in constant danger of becoming atrophied and, in fact, may even lose its original meaning.’ Seattle Sch. Dist. No. 1 v. State, 90 Wash. 2d 476, 516 (1978) . . . .

“Thus, we leave it to the magistrates and the Legislatures to define the precise nature of the task which they face in fulfilling their constitutional duty to educate our children today, and in the future.”

Id. at 618-620 (footnote omitted). The decision’s concluding paragraph states:

“These cases are remanded to the county court for entry of a judgment declaring that the provisions of Part II, c. 5, § 2, of the Massachusetts Constitution impose an enforceable duty on the magistrates [executive] and Legislatures [Legislature] of this Commonwealth 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. It shall be declared also that the constitutional duty is not being currently fulfilled by the Commonwealth. Additionally, while local governments may be required, in part, to support public schools, it is the responsibility of the Commonwealth to take such steps as may be required in each instance effectively to devise a plan and sources of funds sufficient to meet the constitutional mandate. No present statutory enactment is to be declared unconstitutional, but the single justice may, in his or her discretion, retain jurisdiction to determine whether, within a reasonable time, appropriate legislative action has been taken.”

Id. at 621.

II. THE PRESENT PROCEEDINGS

Three days after the McDuffy decision was issued, the Governor signed into law as an emergency act St. 1993, c. 71, which rewrote many of the major statutes governing the State’s role in public school education. This legislation, known as the Education Reform Act, is described below. Presumably as a result of its passage, the McDuffy plaintiffs did not pursue at that time any requests for additional or remedial relief.

Six years later, in late 1999, the plaintiffs filed a motion for further relief with the single justice. Following his consideration and resolution of various motions on issues relating to remedy and discovery, the single justice entered an order of reference on June 29, 2002, to the Superior Court. In particular, the order refers the case to me as the judge in the Superior Court assigned to hear the matter, and provides in relevant part:

“[The judge] shall establish a tracking order, preside over discovery issues, hear the parties and their witnesses, and thereafter make findings of fact and such recommendations as the specially assigned justice considers material to the within complaint. At the conclusion of these proceedings in the Superior Court, the matter shall be referred back to the Clerk’s Office for the Supreme Judicial Court for Suffolk County.”

From July 2002 until June 12, 2003, counsel for the parties conducted discovery and appeared periodically before me on issues relating to case management, discovery, and the nature and scope of the trial. The nineteen plaintiffs attend schools in nineteen different school districts. In light of this large number, the decision was made to proceed to trial by focusing the factual evidence on a group of districts fewer than the total, and the plaintiffs ultimately selected four: Brockton, Lowell, Springfield, and Winchendon (referred to collectively hereafter as “the focus districts” or “the four focus districts”).8 In addition, the plaintiffs offered limited amounts of evidence concerning essentially three other districts - - Brookline, Concord/Carlisle and Wellesley - - all of which had been presented as “comparison districts” in the original McDuffy proceedings. See McDuffy, 415 Mass. at 555. The defendants were offered the opportunity to select one or more different school districts on which to present factual evidence for other comparison purposes, but they chose not to do so. However, the understanding was that expert witnesses called by both the plaintiffs and defendants would be entitled to offer opinions that might reach beyond the four focus districts, with the question of the relevance of those opinions left open.

Trial commenced on June 12, 2003, and concluded in January of 2004. There were 114 witnesses who testified and over 1,000 exhibits. The evidence presented by the plaintiffs centered principally on three issues: (1) their claim that students in the four focus districts are not receiving the level of education to which they are entitled under the Massachusetts Constitution;9 (2) some of the asserted causes of the claimed failure, and (3) remedial measures to be considered. The defendants presented some evidence seeking to refute the claim of inadequate education in the focus districts, but primarily sought to show more generally that since the McDuffy decision and the passage of the ERA, the Commonwealth, principally through the Department of Education (the department), has developed and is implementing an “exemplary” educational system in Massachusetts.

The parties filed proposed findings in February 2004. At the same time, a number of organizations and individuals filed helpful briefs as amici curiae. Briefs were filed by the following: Massachusetts Urban School Superintendents; League of Women Voters of Massachusetts; Massachusetts Alliance for the Arts, et al.; Centro Latino De Chelsea, et al.; Massachusetts Association of School Committees, et al.; Massachusetts Business Alliance for Education; Strategies for Children, Inc. and the Early Education for All Campaign; Lawyers’ Committee for Civil Rights, et al.; Dr. Andrew M. Reschovsky; Jonathan Kozol; Massachusetts Health Council, Inc., et al.; Jewish Alliance for Law and Social Action, et al.; and Civil Rights Project at Harvard University.10

III. THE EDUCATION REFORM ACT: SUMMARY OF KEY CHANGES

The Education Reform Act (ERA), St. 1993, c. 71, changed dramatically the manner in which public school elementary and secondary education is funded in Massachusetts, and changed almost as dramatically the role that the Commonwealth plays in public school education. These changes are codified principally in G. L. c. 69, §§ 1 through 1L, G. L. c. 70, and various provisions of G. L. c. 71. The changes of particular relevance to this case are summarized below.

A. School Finance

At the heart of the ERA is the statute’s provisions dealing with school finance and funding. In 1993 public schools were funded – as they are today – from local, State and Federal sources. See McDuffy, 415 Mass. at 611. The principal source of local funds was the property tax. Id. While State aid was intended to be distributed in a way that would equalize educational opportunity and decrease reliance on local property taxes, for many years before 1993, this formula was not in fact used. Id. at 613. Other legislation provided for equalization grants, but these were cut substantially in the years just before 1993. Id. at 613-614.

The ERA creates a new system for funding public school education in G. L. c. 70 (Chapter 70). See St. 1993, c. 71, § 32. The law establishes a complex and detailed set of definitions and formulae to be used, but at its core it rests on the establishment of a “foundation budget” for every school district: a budget developed from per pupil allowances for each of eighteen spending categories that range from teacher and staff salaries and benefits to maintenance expenses. See Chapter 70, § 2; see also id., §§1, 3.11 The foundation budget is designed to be the minimum spending level for a public school district for a particular year, and is described by the department as “the state’s estimate of the minimum amount needed in each district to provide an adequate educational program.” (See, e.g., ex. 5066).

The ERA also provides a means to calculate what the minimum contribution of the local city or town to the school district’s foundation budget must be, and requires the locality to appropriate that amount of money. See Chapter 70, § 6.12 The determination of the local contribution is based in part on the equalized property valuation for the particular municipality as determined by the Department of Revenue. The underlying premise of the foundation budget system is that by whatever amount (if any) the minimum local contribution falls short of meeting the foundation budget amount for the year, the State, through Chapter 70 aid, will make up the difference. See Chapter 70, § 2.13 Finally, while the foundation budget for each district is composed of discrete amounts allocated to each of the eighteen categories, the ERA specifically provides that “each school district may determine how to allocate any funds appropriated for the support of public schools without regard to the categories employed in calculating the foundation budget.” See Chapter 70, § 8. The exception has been professional development; the State has required a minimum expenditure for this purpose.14

B. Responsibilities of the Commissioner and Board of Education

The ERA inserted G. L. c. 69, §§ 1A through 1K, into the General Laws. (St. 1993, c. 71, § 29). Sections 1A and 1B of c. 69 offer an overview of the increased responsibilities to be exercised by the commissioner of education (the commissioner) and the board of education (the board) under the reform educational scheme.15 Thereafter, G.L. c. 69, § 1D, directs the board to “establish a set of statewide educational goals for all public elementary and secondary schools in the commonwealth” and to direct, through the commissioner, the development of academic standards “for the core subjects of mathematics, science and technology, history and social science, English, foreign languages and the arts” that are to “clearly set forth the skills, competencies and knowledge expected to be possessed by all students at the conclusion of individual grades or clusters of grades.”

Section 1D of c. 69 goes on to provide that the academic standards to be prepared by the commissioner and the board must include criteria for three separate determinations or certificates relating to academic achievement. The most well known of these is the “competency determination” for all tenth graders that is to be a condition of high school graduation, and is to test the student on competency “in the areas of mathematics, science and technology, history and social science, foreign languages, and English based on the academic standards and related curriculum frameworks. . . .”16

Under G.L. c. 69, § 1E, the board is to direct the commissioner to draw up curriculum frameworks in the core subjects covered by the academic standards in § 1D. The board is also charged with establishing standards for vocational technical education. G. L. c. 69, § 1F.

In addition to setting standards for schools and students, the ERA directs the board to establish a system to evaluate annually the performance of both school districts and individual schools, based on student performance outcomes tied to the board’s academic standards and curriculum frameworks. The stated goals of these assessments are to measure student outcomes and to improve the effectiveness of the curriculum and the teaching being provided. G. L. c. 69, § 1I. When a school fails to improve the academic performance of its students, as measured by the assessments under § 1I, the commissioner may refer the school for review to determine whether it is “underperforming.” Schools that are found to be underperforming must develop and present to the board within six months a remedial plan for improvement, and if the school does not show significant improvement in two years, the board may declare it to be chronically underperforming, which leads to the immediate dismissal of the principal and appointment of a new principal by the superintendent. G. L. c. 69, § 1J. When the board finds a school district to have failed to improve the performance of its students, the board may declare the district chronically underperforming and designate a receiver for the district who is to report directly to the commissioner. G. L. c. 69, § 1K.

C. Teachers

The ERA changed teacher certification standards and operating procedures. It instituted a certification or licensure test for new teachers. The test consists of two parts: a test on writing, communication and literacy, and a subject matter content test. See G.L. c. 71, § 38G (as amended by the ERA). In addition, all new teachers must hold a bachelor’s degree from an accredited college with a major course in the arts or sciences appropriate to the teacher’s instructional field (i.e., not simply education). The ERA provides for essentially three categories of teacher licensure or certification: a “preliminary license,” an “initial license,” and a “professional license” in the nomenclature used by the board. See G.L. c.71, § 48G; 603 Code Mass. Regs. § 7.02.17 To qualify for a preliminary license, a person must pass the Massachusetts Test for Education Licensure (MTEL) and have the requisite bachelor’s degree as just described. See G.L. c. 71, § 38G; 603 Code Mass. Regs. § 7.04(2)(a). An initial license requires a bachelor’s degree and a passing score on the MTEL exam, plus participation in courses in a supervised practice. G.L. c. 71, § 38; 603 Code Mass. Regs. 7.04(2)(b).

The professional license or “standard educator certificate” is the final stage of licensure. See G.L. c. 71, § 38G; 603 Code Mass. Regs. § 7.04(2)(c). As the ERA has been implemented by the department, a teacher is eligible for this third stage after at least three years as a certified teacher, and upon completion of an induction program, 50 hours of mentored experience, and one or more of several types of prescribed professional development activities and programs or master’s program. See 603 Code Mass. Regs. § 7.04(2)(c).18 In contrast to the situation before the ERA when a teacher essentially could acquire life-time certification, the professional license is good for five years, at which point the teacher must apply for recertification. To achieve recertification, the teacher must earn a certain number of professional development points (PDPs), through courses or other activities, based on an individual professional development plan approved by the teacher’s principal. See G. L. c. 71, § 38Q (added by the ERA); 603 Code Mass. Regs. §§ 44.03(1), (2) and 44.03(3).19 A teacher may earn PDPs by passing content-specific tests approved by the board. 603 Code Mass. Regs. §44.03(3.) A teacher who does not renew his or her license cannot be employed by a public school district until the license is renewed, unless the board grants a waiver. Id. at § 44.08(4).

The ERA also increased the powers of principals and superintendents, transferring from school committees to principals the power to dismiss or demote a teacher, subject to the approval of the superintendent (see G. L. c. 71, § 42, as amended by the ERA, St. 1993, c. 71, § 44), and making superintendents responsible for developing systems of evaluation for all teachers, principals, and other administrators within their system. See G. L. c. 71, § 38 (as amended by the ERA).

FINDINGS OF FACT

IV. THE COMMONWEALTH’S IMPLEMENTATION OF EDUCATION REFORM SINCE 1993

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