June 15, 1993: an important day for education in Massachusetts. On that day, the Supreme Judicial Court issued its decision in McDuffy v. Secretary of Education and defined the Commonwealth’s duty to educate all public school students, without regard to their personal wealth or poverty, and without regard to their district’s fiscal capacity. The SJC relied, in part, on the words John Adams wrote in the Massachusetts Constitution describing the obligation of the state to “cherish” the public schools to preserve knowledge among the people of all classes—in order to secure democracy and enable economic productivity. The court also held that the Commonwealth was failing in its duty to provide students with the requisite education.

Less well known, however, are the standards the justices adopted from a similar case in another state to be used as the benchmark of a Massachusetts education. The court ruled that public education must equip children with seven capabilities:

  1. sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization;
  2. sufficient knowledge of economic, social, and political systems to enable students to make informed choices;
  3. sufficient understanding of governmental processes to enable students to understand the issues that affect their community, state, and nation;
  4. sufficient self-knowledge and knowledge of their mental and physical wellness;
  5. sufficient grounding in the arts to enable students to appreciate their cultural and historical heritage;
  6. sufficient training or preparation for advanced training in either academic or vocational fields to enable students to choose and pursue life work intelligently; and
  7. 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.

The court ordered the state to develop the specifics of how to deliver the required education to all students, to find a means to finance that education, and to meet its responsibilities within a reasonable time.

It has been almost 12 years since the McDuffy decision.

By the time the Supreme Judicial Court issues its decision in the latest round of the legal battle on behalf of public school students, Hancock v. Driscoll, it will have been 12 years since the McDuffy decision—enough time for an entire generation of children to pass through our schools—and the state is still far from meeting its constitutional obligation.

From McDuffy to Hancock

Three days after the McDuffy decision, then-Gov. William Weld signed the Education Reform Act of 1993 with what The Boston Globe described as a “lukewarm pen.” The otherwise much-praised legislation contained three important changes in the roller coaster history of state support for education: It established a process for setting standards; it required assessment and evaluation, by multiple means, of how the standards were being met; and it included a new “foundation level” of financial support for schools, based on an estimate of what it should cost to educate the mix of children in each district. In addition, a seven-year program of increased funding was undertaken to pay for these reforms. While each of the three major changes has sparked controversy in its particulars, hardly anyone believes that the public schools are not better off today than they would have been without education reform.

Under the 1993 law, and in response to the court’s requirement under McDuffy that it develop a specific educational plan to provide children with an education that equips them with the seven capabilities, the Commonwealth developed curriculum frameworks in English, math, history and social studies, science and engineering, arts, health, and foreign language. The foundation-budget program gave the schools a significant infusion of new resources, much of them going to school districts with the neediest students.

So why, a decade later, was it necessary to file the new lawsuit, Hancock v. Driscoll? The answer is simple: The Commonwealth is still not meeting its constitutional obligation to provide the required education to all students, particularly students at risk for school failure. First, the foundation budget was developed prior to the curriculum frameworks and never reassessed in light of the new state standards established in the Education Reform Act, and it has proven inadequate to the task of paying for the education required under McDuffy. Second, much more needs to be done to improve our schools in order to educate our children to the constitutional standards.

Accordingly, 20 plaintiff children from 19 poor school districts across the Commonwealth returned to court on the grounds that many students across the state, including the plaintiffs, were still not receiving the education necessary to meet the seven McDuffy capabilities and master the curriculum frameworks; the school districts in which the plaintiffs attend school continued to be unable to provide necessary programs and services; strong research-based evidence demonstrated that many educational deficits, particularly those of especially challenged students, can be significantly ameliorated, but have not been in the plaintiffs’ school districts; and the state has failed to provide appropriate help, evaluation, and support, including necessary funding, to ensure every child a constitutionally adequate public education. The Hancock case was referred by the Supreme Judicial Court to Superior Court Judge Margot Botsford to conduct a trial and make findings of fact and recommendations to the SJC.

On June 12, 2003, the Hancock trial began in Superior Court in Boston. The trial lasted 78 days over a seven-month period and included the testimony of 114 witnesses and more than 1,000 exhibits. On April 26, 2004, Judge Botsford issued a 300-plus-page report of detailed findings of fact and recommendations to the SJC.

The trial focused on four of the districts—Brockton, Lowell, Springfield, and Winchendon—because the conditions in those districts were typical of the districts in which the plaintiffs attend school. In addition, evidence was presented comparing these districts with Brookline, Concord, and Wellesley, as in the original McDuffy case. Although the court offered the state the opportunity to offer similar evidence about any district it chose to demonstrate that there were low-spending, high-performing districts, the state declined to do so.

Districts lacked resources to provide adequate education.

During the trial, superintendents, teachers, and specialists from the focus districts described—without contradiction—conditions not unlike those found at the time of the McDuffy case. After considering this evidence, Judge Botsford concluded in her report that these districts continued to be plagued with “overcrowded classes”; “‘extraordinary’ staff reductions”; “abysmal” libraries; “difficulty filling positions for mathematics, science, special education teachers, bilingual teachers and certified librarians”; “a virulent dropout problem”; and SAT scores that “are flat and frighteningly low, if one considers the importance of college education to future success.” In her report, Judge Botsford noted that on every performance measure used by the Department of Education to assess district and school educational quality, the plaintiffs’ districts, with few exceptions, “have not improved at all” since 1993.

The evidence

How is it possible that after so much money has been poured into schools, they have not generally improved? The evidence presented during the trial answered this question. First, funding has not kept up with the demands of the new curriculum or spiraling costs such as health insurance, nor has it matched the needs of school systems dealing with particularly difficult populations to educate. Judge Botsford was especially impressed that the focus districts were spending between 100 percent and 110 percent of their foundation requirement, while the state average for the 75 highest performing districts was 130 percent of foundation and the wealthier comparison districts were spending an average of 160 percent of their foundation budgets.

Second, abundant evidence showed that the focus districts lacked adequate resources to provide the required education. While the specifics differed from district to district, there was evidence of glaring educational problems, including: (1) class sizes that were too large, especially for districts with large clusters of poverty, English-language learners, and children with special-educational needs; (2) teachers not certified in the field they were teaching; (3) a lack of essential materials, such as manipulatives and graphing calculators in math, and laboratories equipped with microscopes and the other equipment needed to provide a hands-on experience in science; (4) libraries with inadequate technology and out-of-date books not well aligned with the curriculum frameworks—one Winchendon school library still had The Miracle of Asbestos and The Boys’ Book of Tools on its shelves; (5) minimal or no alignment of curricula with the frameworks, including minimal or no teaching of health, the arts, and foreign language; (6) textbooks that were either out-of-date or not aligned to the frameworks, and even those were in short supply; and (7) not enough slots for those applying for early childhood education, and an inability to offer full-day kindergarten.

Expert witnesses also testified about the proven effectiveness of programs that were needed in these plaintiff districts, but not available due to a lack of resources. Long-term studies (including some lasting for decades) have proven beyond dispute that high-quality early childhood education taught by certified teachers increases school readiness, lessens the learning gap for children who are poor or bring special challenges to school, and results in far greater success in school and in later life. These quality programs have been shown, over time, to result in returns to society of between $4 and $7 for every dollar spent. Yet the plaintiff districts are unable to provide sufficient early childhood education programs because of a lack of resources. In original research for this case, the disparities in school readiness toward the end of kindergarten were detailed, demonstrating that children in the urban districts —Brockton, Lowell, and Springfield—were far behind the norm for their age and even further behind their peers in more affluent districts. (See Figure 1.)

Similarly, evidence was presented about the benefits of small classes, especially for early grades. As Judge Botsford concluded, the pre-eminent research in this field is the Tennessee STAR study, which established that children who are in classes of fewer than 20 students in their early school years enjoy long-term benefits in school success. Yet, in the plaintiff children’s districts this was often not the case. (See Figure 2.)

Click here to view Figure 2

The court also heard evidence about the “virulent dropout problem.” In the urban districts, as many as half of students do not graduate on time. (See Figure 3, on Springfield.) The court noted that the drastic reduction of remediation programs as a result of state budget cuts had exacerbated this already serious problem.

Click here to view Figure 3

After considering all the testimony and reviewing all the exhibits, Judge Botsford concluded that “the factual record establishes that the schools attended by plaintiff children are not currently implementing the Massachusetts curriculum frameworks for all students, and are not currently equipping all students with the McDuffy capabilities.” Furthermore, the inadequacies of the educational programs in these schools are “many and deep,” and “even more profound” for those students at greatest risk of failure, such as “children with learning disabilities, children with limited English proficiency, racial and ethnic minority children, and those from low-income homes.”

Judge Botsford found that the ability to address these issues is limited by both inadequate funds and the Department of Education’s inadequate capacity to provide assistance to school districts. The department has shrunk from 1,000 employees in 1980 to less than 400 today, in spite of all the additional responsibilities under the Education Reform Act. This lack of capacity was undisputed at trial and was exemplified by the evidence that, although there are hundreds of low-performing schools across the state, the department has reviewed only a small fraction of them. “In the meantime,” Judge Botsford concluded, “the plaintiff children in the failing schools continue to suffer.”

The remedy

In her report to the SJC, Judge Botsford concluded that the state was not meeting its constitutional obligations and that the plaintiffs were entitled to further relief. She recommended that the state be directed to perform a study under the supervision of the court to determine what it would cost to provide the appropriate education to all children as described in the curriculum frameworks and to determine the cost of providing adequate resources to the Department of Education to carry out their tasks to improve the districts. She further recommended that the state be given a limited time—perhaps six months—to conduct the study and to implement the changes and funding necessary to accomplish the tasks.

Based on the evidence at trial, Judge Botsford identified certain educational programs that “must be included” in the determination of necessary costs and others that “should be considered.” Those that “must be included” are sufficient funding for (historically underfunded) special education, including professional development for all teachers who have responsibility for teaching children with special educational needs; sufficient funding to cover all seven curriculum frameworks, including health, arts, and foreign languages; adequate school facilities; and a public pre-school program for 3- and 4-year-olds, taught by certified teachers, free for those unable to pay, and available to all children at risk.

Judge Botsford also identified programs and strategies that “should be considered” in the determination of cost. These included increased teacher salaries, especially in poor districts; increasing the factors in the foundation budget for low-income and limited English proficiency students; adding factors in the foundation budget for technology, teacher coaches, and school leadership training; implementation of class sizes of less than 20 through third grade; provision of adequate libraries; and institution of regular, established (as opposed to episodic) remedial programs for children at risk.

At this time, the Supreme Judicial Court has received Judge Botsford’s Report and recommendations, as well as briefs filed by the Commonwealth and the plaintiffs. In addition, the court has received 15 amicus, or friend-of-the-court, briefs representing more 40 organizations, virtually all the urban superintendents, and almost 50 state legislators. Every single one of these amicus briefs supports Judge Botsford’s recommendations. After oral arguments, which the court heard in early October, the SJC will deliberate, and is expected to issue its decision by early next year.

It was 1974 when the Council for Fair School Finance was formed to support litigation on behalf of students who are not receiving the education to which they are constitutionally entitled. Now, 30 years later and 12 years after the landmark McDuffy decision, it is apparent there is more work to be done to reform and equalize public education in Massachusetts.

The constitution requires that the state provide public education that prepares students to participate in the civic and economic life of the Commonwealth, and the Council continues to believe that it is in the interest of the Commonwealth to do so. The Hancock case seeks to define the challenges ahead for government and educators. The council looks forward to the SJC’s decision in Hancock, and to working with the legislative and executive branches of government to make the promise of education that John Adams enshrined in our state’s constitution a reality for all students.

Norma Shapiro, legislative director for ACLU of Massachusetts, is president of the Council for Fair School Finance.