Hancock v. Commissioner of Education

Greaney, J.

(dissenting, with whom Ireland, J., joins). As the only remaining member of the court who participated in McDuffy v. Secretary of the Executive Office of Educ., 415 Mass. 545 (1993) {McDuffy), and as the single justice who has supervised these proceedings over several years, I write separately for the following reasons: to emphasize the nature and rule of the McDuffy case; to point out again the crisis that exists in the four focus districts before us; to explain how the court can and should remain involved in the proceedings without impermissibly intruding on legislative or executive prerogatives; and to express regret that the court has chosen to ignore the principles of stare decisis, thereby effectively abandoning one of its major constitutional precedents.

a. McDuffy was released with the court’s knowledge that the Legislature was poised to enact the Education Reform Act of 1993 (ERA). See St. 1993, c. 71. The McDuffy decision, the adoption of the ERA, and the Governor’s signing of the ERA into law were harmonious and contemporaneous events that, on the one hand, stated in McDuffy (after comprehensive research of original and modem sources) the constitutional obligation to provide a minimally adequate education for the Commonwealth’s children and, on the other hand, put into place measures to satisfy that obligation. Thus, the three events comprised in fact and law a joint enterprise on the part of the three branches of government to seek and compel change and improvement. Over the past decade, McDuffy has never been understood to constitute anything less. And, as emphasized by Justice Ireland, post at 486, and acknowledged by the Chief Justice, ante at *474434-435, the obligation stated in McDuffy is mandatory and not one which can later be recast as more or less aspirational.

b. By any standard, the extensive findings made by the Superior Court judge conclusively establish that the constitutional imperative of McDuffy is not being satisfied in the four focus districts, when they are examined objectively against the three comparison districts. The factual record establishes that the schools attended by the plaintiff children in the focus districts are not currently implementing the Massachusetts curriculum frameworks in any meaningful way, nor are they otherwise equipping their students with the capabilities delineated in McDuffy as the minimum standard by which to measure an educated child. See McDuffy, supra at 618-619, 621. The judge’s decision, reached after a lengthy adversarial trial, documents in comprehensive detail a disturbing state of affairs in the schools of the four focus districts. The following is but a partial recitation of the judge’s findings.

Acute inadequacies exist in the educational programs of the four focus districts in the core subjects of English language arts, mathematics, science and technology, and history. In Lowell, a large percentage of elementary school students are reading below grade level. One middle school has insufficient textbooks and supplementary reading materials to accommodate all of its students and no specialized reading teachers at all to assist those students who are reading below grade level. Lowell High School has many students who read below grade level, and thirty to forty per cent of its students lack fluency in English. The school, however, has no funds to create a formal reading program. In Springfield, thirty-six per cent of fourth graders at one elementary school failed the English Language Arts (ELA) Massachusetts Comprehensive Assessment System (MCAS) test in 2002. A significant number of its fifth grade students enter middle school reading two and one-half (or more) years below grade level. There is, nevertheless, only one reading resource teacher to serve all six of Springfield’s middle schools. An astounding seventy per cent of Springfield’s seventh graders scored below the proficient level on the ELA MCAS test in 2003, and the same dismal percentage of tenth graders failed to achieve proficiency on the ELA MCAS test.

All four of the focus districts have difficulty attracting and *475retaining certified mathematics teachers. As a result, only fifty per cent of Brockton’s middle school mathematics teachers were appropriately certified in 2002 and only thirty-five per cent in 2003. At the high school, twenty-seven per cent of Brockton’s mathematics teachers were not certified to teach high school mathematics in 2003. In Winchendon, none of the seventh and eighth grade mathematics teachers is appropriately certified. Only one of three middle school science teachers is certified, but there is no professional development in Winchendon devoted to science instruction. Winchendon cannot provide the range of science courses necessary to meet the needs of students interested in applying to a four-year college. Ninety-five per cent of Winchendon students scored at the warning-failing or needs improvement level on the eighth grade history MCAS test. Winchendon’s reading, math, science, and social studies programs are not aligned with the State currículums framework. Although the State science framework contemplates instruction in a laboratory setting, four of the six middle schools in Springfield lack science laboratories altogether, and those that do exist do not all have running water or electrical outlets. Only one-half of Springfield’s elementary schools have a science teacher. The science curriculum framework was adopted in 2001, but many of Springfield’s high school science textbooks are ten years old. The science supply budget for the district as a whole has been $2 per student for the last fifteen years, an amount that is utterly insufficient to implement the framework.

Even larger weaknesses are apparent in the areas of health, the arts, and foreign languages. In 2003, the elementary and middle schools in Lowell had a per pupil arts expenditure budget of $1.63. Twenty-seven art teachers, thirty-one music teachers, and four theater teachers in Springfield serve a student population of 26,000, and it was estimated that fully one-half of the students in Springfield’s graduating class of 2003 went through twelve years of public school without any arts instruction at all. Although Lowell and Springfield have student populations with numerous and serious health issues, including alcohol and marijuana abuse, poor nutrition, high obesity rates, high teenage pregnancy rates, HIV, and domestic violence, neither district has the resources or staff to provide its students with the level of *476instruction contemplated by the State health curriculum framework. In Brockton, forty-two per cent of its foreign language teachers in the middle school, and twenty-five per cent of its foreign language teachers in the high school, are not certified in the languages they teach.

Libraries in all four of the focus districts lack sufficient staff, an adequate number of current titles and periodicals, and computer resources necessary to equip students with research skills contemplated by the curriculum frameworks. All four focus districts have been designated by the Department of Education (department) as “high needs” school districts with respect to technology, and none has met benchmarks set by the department pertaining to the availability of modern, fully functioning computer equipments or the staff to service them.

All four focus districts have difficulty servicing children referred for special education, due primarily to a lack of psychologists able to perform the necessary evaluations. All lack sufficient space to provide special education services in appropriate settings and fail to provide students with disabilities with meaningful access to the regular education curriculum in regular education classrooms. Children with disabilities in the focus districts suffer from the absence of meaningful professional development both for regular education teachers on teaching special needs students and for special education teachers on subject matter content areas that children with disabilities need to learn. All of the focus districts lack sufficient personnel to support and assist children with disabilities in regular education classrooms. In 2003, the percentage of special education students who passed the tenth grade math MCAS test in the focus districts ranged from twelve to twenty-five per cent. The percentage of special education students in the focus districts who passed the tenth grade ELA MCAS test was twenty-four to fifty.1 In all four focus districts the scores of students at risk, including students with disabilities, racial and ethnic minority *477students, limited English proficient students, and low-income students, were shockingly low and substantially lower than the scores of regular education students.

Each of the four focus districts runs a public school preschool program of high quality, but their programs serve only a fraction of all of the three and four year olds who would attend if there were sufficient resources and adequate space. Brockton serves only ten per cent of its three and four year olds; Lowell serves about thirteen per cent; Springfield serves less than thirty per cent; and Winchendon serves about one-third. Twenty-five per cent of kindergarten students in Brockton and Lowell, and close to forty per cent of kindergarten students in Springfield, tested more than one standard deviation below the norm in terms of receptive vocabulary acquisition, “a sign of children who are at considerable risk of school failure because they are already so far behind the starting gate.” Because of budget reductions in recent years, however, each of the focus districts has had to cut back on its programs directed toward early childhood education.

In summary (and without attempting to include many other negative findings that add to what is stated above), the judge’s report paints a “bleak portrait of the plaintiffs’ schools” that is remarkably similar to what the McDuffy court found eleven years ago. Id. at 617. The judge examined a number of objective criteria used by the department as indicators of education program quality: MCAS scores, dropout rates, retention rates, on-time graduation rates, SAT scores and SAT participation rates, and the postgraduation plans of high school seniors. She concluded that, on almost every objective indicator, the four focus districts have, with few exceptions, not improved at all since 1993, and “if one concentrates particularly on the last five years, when one would expect at least to begin seeing the impact of ERA investments, there are almost no exceptions.” She concluded that public school students in the plaintiffs’ districts are offered significantly fewer educational opportunities, and a *478lower quality of educational opportunities, than are students in the schools of the comparison districts and, on average, than are students in the Commonwealth in the whole. Despite the many positive changes effected by the ERA, the conclusion'is inevitable that the four focus districts are failing to equip their students with the capabilities described in McDuffy as necessary to become free and productive citizens of the Commonwealth. Moreover, even within the four focus districts, those children demonstrating the greatest needs typically receive less than other students of average needs. We have then between the focus districts and the comparison districts a tale of two worlds: the focus districts beset with problems, and lacking anything that can reasonably be called an adequate education for many of their children, the comparison districts maintaining proper and adequate educational standards and moving their students toward graduation and employment with learned skills necessary to achieve in postgraduate education and function in the modem workplace.

c. The plaintiffs’ situation requires relief by this court. Creating academic standards that are national models cannot be deemed constitutionally appropriate if those standards cannot be implemented in the focus districts where funding is inadequate. Further, creating a rigorous student assessment system cannot be deemed constitutionally appropriate when a majority of students in the focus districts are scoring at the failing-warning, or needs improvement level, under that system. Similarly, raising certification standards for teachers cannot be deemed satisfactory when schools cannot attract, pay, or retain certified teachers. Changes effected by the Legislature and the department since 1993 have been laudable. These changes, however, ultimately must be judged on results and not on effort (no matter how praiseworthy), and as pointed out by Justice Ireland, the Commonwealth’s insistence to the contrary seeks, in effect, to overrule McDuffy. Post at 487.

I do not suggest that the Commonwealth must guarantee equal outcomes in all school districts with regard to such measures as MCAS scores, graduation rates, and college admissions (although these certainly would be inspirational goals). The Commonwealth’s constitutional duty to educate its children *479will not be fulfilled, however, until all of its students have a reasonable opportunity to acquire an adequate education, within the meaning of McDuffy, in the public schools of their communities. This, as the judge’s report meticulously documents, the Commonwealth has failed to do in the four focus districts.2 Moreover, there is no evidence whatsoever to justify the Chief Justice’s optimism that considerable progress in the focus districts is being made.3 Ante at 453. To the contrary, the judge’s report, read as a whole, documents a startling and dismal performance gap between the Commonwealth’s privileged and underprivileged children (the hardest and costliest to educate) that continues to hold its course.

I would adopt the judge’s recommendation that we order the department promptly to conduct a study to assess the actual costs of effective implementation of the educational programs intended to provide an adequate education in the four focus districts. No persuasive consensus exists regarding how much spending is necessary to provide an “adequate” education. Actual spending levels strongly suggest, however, that the formula now relied on by the department to reflect the minimum amount each district needs to provide an adequate education to its students does not reflect the true cost of successful education in the Commonwealth, at least in the focus districts. Between fiscal years 2001 and 2003, each focus district’s actual net school spending was at or only slightly above its foundation budget. In contrast, the seventy-five school districts that perform the highest on the MCAS tests spend, on average, 130 per cent of the foundation budget. The comparison districts spent between 151 to 171 per cent of the foundation budget, while the State average was between 115 to 117 per cent of the foundation budget. These figures alone suggest that there are structural *480deficiencies in the formula for the foundation budget that must be addressed. I am cognizant that money alone will not solve all of the issues that are confronted daily by educators in our poorer urban districts, as are three of the four focus districts. On the other hand, a realistic assessment of the costs of effectively implementing an educational plan in such districts reasonably could, and should, contemplate other factors that affect student performance such as poverty, teenage pregnancy, nutrition, family issues, drugs, violence, language deficiencies and the need for remedial teaching and tutoring. It also should include a cost assessment of measures necessary to improve the administrative ability of the districts successfully to implement the educational plan.

Once this study is accomplished, we (meant collectively to include all three branches of government) shall be in a position to understand where assistance, administrative, financial and otherwise, can be targeted in the focus districts (and, eventually in other districts similarly situated) to bring them into reasonable balance with the rest of the State. Additionally, consideration must be given to increasing the personnel and resources of the department, which (as the judge found and Justice Ireland reiterates, post at 489 & n.6) are obviously inadequate to apply practical measures to resolve the needs of the focus districts. I would remand this case to the county court so that the single justice can monitor the remedial process and continue to use the judge (who has acquired special expertise on the state of education — or lack of it — in the four focus districts) to provide direction.

In this way, the court will play a vital role in ensuring that the Commonwealth’s public schools are adequately financed that would not intrude on the other two branches. The problem is of such magnitude that the collective involvement of all three branches of government is needed. I advocate no role on the part of the court in the department’s decisions as how best to bolster achievement of our public school students or how to allocate its resources between districts. In view of the enormity of the task, to remove the court from the process entirely is a great misfortune and mistake.

d. The McDuffy court held unequivocally that the Com*481monwealth has an obligation, enforceable by the court, to provide a public education of quality sufficient to provide its students to take their place as knowledgeable and productive citizens. McDuffy, supra at 564, 619-620. McDuffy made clear that the constitutional duty to “cherish” public schools must be understood as a “duty to ensure that the public schools achieve their object and educate the people.” Id. at 564. The McDuffy court emphasized what the framers themselves well understood — that a free public education is a foundation of democracy. We stated:

“The framers’ decision to dedicate an entire chapter — one of six — to the topic of education signals that it was to them a central concern. Their decision to treat education differently from other objects of government by devoting a separate chapter to education rather than listing it as a matter within the powers of the legislative or executive branches indicates structurally what is said explicitly by words: that education is a ‘duty’ of government, and not merely an object within the power of government. Lastly, the framers’ decision to place the provisions concerning education in ‘The Frame of Government’ — rather than in the ‘Declaration of Rights’ — demonstrates that the framers conceived of education as fundamentally related to the very existence of government.”

Id. at 565.

The Chief Justice endorses in eloquent language the “constitutional imperative” announced in McDuffy and accepts the judge’s factual findings as a “compelling, instructive account of the current state of public education.” Ante at 431, 445. She believes, nonetheless, that the Commonwealth currently is meeting its duty to educate the plaintiff students in the focus districts, because the fulfilment of its duty to educate depends on effort and not on results. This proposition is way off the mark. The Chief Justice, in effect, would overrule McDuffy. The plurality result reached today both undermines protections guaranteed to the students in the focus districts (and in other districts where the obligations of the education clause are not being fulfilled) and ignores principles of stare decisis.

*482The McDuffy court unanimously held that children in the Commonwealth are constitutionally entitled to an education that is reasonably calculated to provide them with the seven capabilities set forth in the Supreme Court of Kentucky’s guidelines in Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 212 (Ky. 1989).4 That pronouncement was reached after intensive and scholarly examination of the meaning and provenance of the education clause and consideration of the principles involved. All of the arguments now advanced by the parties were contemplated, and decided, in McDuffy, and there was then no misconception of the points involved. That court was acutely aware (as am I) of the lack of consensus among experts as to what constitutes an adequate education and what the costs of such an education might be. The McDuffy court, nevertheless, allowed the single justice to retain jurisdiction to ensure that the Commonwealth devised a plan and sources of funds sufficient “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.” Stare decisis is not a rigid requirement, but abandonment of precedent (especially when constitutional doctrine is involved) demands special justification. See Arizona v. Rumsey, 467 U.S. 203, 212 (1984). As recently articulated by a Justice of this court, “in order to overrule a prior case, it is not enough that some or all of the Justices of this court have some intellectual or academic disagreement with the earlier analysis of the issue. There must be something more, above and beyond such a disagreement, that would justify some exception to the doctrine of stare decisis.” Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 588 (2004) (Sosman, J., concurring). No exception to the doctrine is present in this case.

Justice Cowin, writing separately, boldly proclaims that McDuffy was “a display of stunning judicial imagination” that now should be overruled. Ante at 465. This is a surprising posi*483tion and one not advanced by the defendants. I strongly take issue with Justice Cowin’s assertion that twelve years of retained jurisdiction, several months of trial, and over 300 pages of meticulously prepared findings should now be “for naught,” because, in her words, the court has no role to play (and never had a role) in ensuring the Commonwealth’s compliance with the mandate embodied in the education clause. Ante at 468 n.2. Interpretation of our Constitution is this court’s most solemn function. It would be intolerable indeed if our decisions construing constitutional provisions, such as McDuffy and others, were no more constant than the changing membership of our court. See Mabardy v. McHugh, 202 Mass. 148, 152 (1909) (“it is . . . vital that there be stability in the courts in adhering to decisions deliberately made after ample consideration. Parties should not be encouraged to seek re-examination of determined principles and speculate on a fluctuation of the law with every change in the expounders of it”).

Justice Cowin asserts that “where the Constitution commands it, stare decisis must yield.” Ante at 472. In support of this pronouncement, she cites “many landmark [United States] Supreme Court decisions that vindicated cherished rights after centuries of neglect and corrected misguided judicial decisions to conform to the dictates of the Constitution.” Ante at 471. The decisions she cites, however, represent reevaluations of constitutional provisions in light of changing social circumstances and current perspectives on the nature of individual rights — that were endorsed unanimously or by the majority of an entire court — and not the separately expressed opinion of one lone Justice (joined by another) that a unanimous decision of the court, released only twelve years before, was “overreaching,” “unsupportable,” or otherwise not in accordance with the law. They, thus, are irrelevant.

There are other reasons for not abandoning the plaintiffs and the full force of the McDuffy doctrine. A brief in support of the plaintiff has been filed by many State legislators, arguing (what we all know to be true) that the Commonwealth is not providing any sort of an adequate education to the majority of students *484who attend public schools in low income districts and urging the court to adopt the judge’s recommendations in full. The Governor has, correctly, identified the education crisis facing our schools as the civil rights issue of our generation.5 Public support is already behind this task.

Practically everyone involved in this case assumed that the court was going to use this litigation to order the Legislature to appropriate money to remedy the severe problems identified. This assumption is incorrect. I am well aware of the limitations that apply to unelected members of a court ordering an elected Legislature and executive to appropriate money and, frankly, the difficulties that might be encountered if it became necessary to enforce any orders against recalcitrant elected officials. The problem, of course, is magnified considerably when dealing with expenditures needed to fund public education; the need to allocate resources equitably between various school districts achieving at different levels; the complexity of education policy in general; and the disagreement between competent experts on how best to remediate a nonperforming or poorly performing school district. But the remedy I propose has nothing to do with orders for the appropriation of money. The remedy takes full advantage of the exhaustive and excellent work of the Superior Court judge and brings to bear on the problem the voice and aid of the court as an integral part of the joint enterprise I have described. If money is needed, and is not forthcoming, there will be ample time to discuss the matter of appropriations later in a cooperative and nonadversarial way.

*485Surely, our education clause means what McDuffy says it means. Were it otherwise, the clause becomes an empty promise. If the same kind of thinking that naysayers now espouse occurred in Brown v. Board of Educ. of Topeka, 347 U.S. 483 (1954) (Brown I), and in Brown v. Board of Educ. of Topeka, 349 U.S. 294 (1955) (Brown II), then those decisions would have gone the other way, with the United States Supreme Court refraining from becoming involved in serious matters of educational policy in the States, notwithstanding the compelling nature of the facts and the existence of unambiguous constitutional language (as is the situation here).

Rather than doing that, however, the United States Supreme Court took profound and decisive action and affirmed the status of educational opportunity in words that articulate the dictates of McDuffy:

“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him [or her] for later professional training, and in helping him [or her] to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he [or she] is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”

Brown I, supra at 493.

Because our highly respected court has chosen to turn back from McDuffy, at a time when the focus districts most need our help, I respectfully dissent.

These scores are far below those of students with disabilities in the comparison districts. In 2003, seventy-nine to eighty-two per cent of special education students in Brookline and Wellesley passed the tenth grade math MCAS test and ninety-two to ninety-four per cent passed the tenth grade ELA MCAS test. Statewide, fifty percent of special education students passed the tenth grade math MCAS test and sixty-seven per cent passed the tenth grade *477ELA MCAS test. The judge accepted the opinion of every educator and expert witness who testified on the subject, that all students with noncognitive disabilities are capable of performing at the same level as their regular education peers, provided they have adequate support.

The evidence presented at trial concerned only four of the districts in which the plaintiffs reside, and the parties have not agreed to any finding of typicality. The judge concluded, however, that “the problems and challenges existing in the four focus districts repeat themselves in all or most of the school districts where the plaintiffs reside.”

Nothing short of dramatic progress will be needed if schools in the focus districts are to meet performance goals (measured by the percentage of students achieving scores of proficiency or above on MCAS tests) required to become eligible for Federal aid under the No Child Left Behind Act of 2001, 20 U.S.C. §§ 6301 et seq. (2002).

Justice O’Connor dissented to express his view that the record failed to establish that the Commonwealth was not providing a public education in keeping with those guidelines. See McDuffy v. Secretary of the Executive Office of Educ., 415 Mass. 545, 621 (1993) (O’Connnor, J., concurring in part and dissenting in part).

Massachusetts is not alone in facing this issue. According to a recent article published in a national education publication, a swell of lawsuits have forced State legislatures and courts across the country to address the question of what constitutes an “adequate” education and have sought to identify the level of spending required by various provisions in their State Constitutions. See Olson, Financial Evolution, 24 Educ. Wk. 8, 10-11 (No. 17, Jan. 6, 2005). In the most famous of these, Abbott v. Burke, 153 N.J. 480, 525-528 (1998), the Supreme Court of New Jersey ordered the State to ensure that public schools in the poorest urban districts could spend at the same level as those in the wealthiest suburbs. In another, the Court of Appeals of New York upheld an order directing the State to conduct a cost study and to report back to the court. See Campaign for Fiscal Equity, Inc. v. State, 100 N.Y.2d 893, 925 (2003). Practically every other State that has recently faced the problem (and there are thirty-one of them), has dealt with it on constitutional terms. Olson, Financial Evolution, supra at 10.