“Blocking Budget Cuts: Constitutional Perspectives”: Opening Address by Michael Rebell

“Blocking Budget Cuts: Constitutional Perspectives” was the topic of the opening address given by Michael Rebell, Executive Director of the National Access Network, and of the Campaign for Educational Equity at Teachers College, Columbia University on the first day of the 9th Annual Quality Education Conference.

Setting the tone for the entire conference, Rebell began his speech by acknowledging that the past nine months of economic downturn have been a “roller coaster ride” for states, districts, and public education litigators and advocates. According to the Center on Budget Policy Priorities, by February 20, 2009, twenty states had implemented cuts to education funding, and although the federal American Recovery and Reinvestment Act (ARRA) has substantially mitigated the worst case scenarios, estimates are that the stimulus bill will only offset about 40% of currently anticipated total state deficits.

Rebell presented both immediate and long-term constitutional perspectives regarding education budget cuts. He repeatedly underscored the fact that the right to a basic quality education is one of the few affirmative obligations stated in most state constitutions. The precedents to date, according to Rebell, support the basic proposition that maintenance of adequate education funding levels, even in the face of economic downturns, is a constitutional necessity.

Despite the importance of these issues, so far courts in only two states have ruled directly on students’ rights to the maintenance of adequate educational funding in the face of threatened budget cuts. In Washington State in the 1980s, a superior court judge ruled that across the board funding reductions during a budget crisis was unconstitutional as applied to education. He held that “The duty and responsibility of the State to fully fund the common school program required by Article IX, Sections 1 and 2, is not suspended in any part during period of fiscal crisis, even where the existing tax revenue is not sufficient to fund [all of the] programs that the Legislature believes are necessary to meet the needs of the people of this State.” In 2002, the New Jersey Supreme Court also held that although in general basic education funding may be held to the prior year’s level, core constitutionally-required programs must nevertheless be continued and unavoidable cost increases to cover inflation and contractual obligations must be met.

To meet constitutional requirements for “a thorough and efficient” or sound basic education, Rebell emphasized that it is essential that states ensure adequate funding levels, stable funding, and accountability for program quality. To ensure stability in funding and to avoid pressures to cut education below constitutional levels in the future, he called upon states to follow the “Joseph principle ----- build up surpluses in the good years so that core needs can be met in the bad years.” Although many states currently maintain “rainy day” or stabilization funds that in theory follow this principle, the amounts they set aside are too meager to meet to cope with a major recession and only four or five states have such funds for education, despite the affirmative obligation in state constitutions to provide adequate and consistent levels of funding and services. “Looking ahead,” stated Rebell, “we have to emphasize major increases in these stabilization funds.”

Setting the stage for many significant discussions that commenced at conference, Rebell ended his talk by stating that, “Even with all of our problems, we can’t be defensive. We must be affirmative. Equity has remained clear, despite the recession. The law is clear. The constitution doesn’t take a holiday during the recession. The strategic national interest is clear: we must continue to properly educate our kids.”