Historic court victory will influence election, 2019 legislative session

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Diane Torres-Velásquez, associate professor at the University of New Mexico and president of the Latino Education Task Force, addressed the gathered crowd at Washington Middle School Park in Albuquerque. Speakers Regis Pecos, Mike Grossman and Tom Sullivan look on, from right to left. Photo credit / Trip Jennings

A jovial crowd shaded by large trees and within sight of an Albuquerque public school gathered Monday to celebrate a court ruling that many were hailing as vindication of what they had been saying for years.

On Friday, State District Judge Sarah Singleton ruled New Mexico guilty of shirking its constitutional duty  to adequately educate at-risk students.

The ruling, which represented a sound defeat for Republican Gov. Susana Martinez and her Public Education Department, is not the last word. The agency said late Monday it will appeal.

“Unfortunately, the judge missed the boat with this ruling,” Public Education Secretary Christopher Ruszkowski said, adding that the state has invested in programs that “have been proven to improve student success.” 

But the possibility of an appeal earlier in the day wasn’t about to puncture Monday’s celebratory mood.

“We won,” Maria Archuleta of the New Mexico Center on Law and Poverty said into the microphone before she introduced the first of eight speakers.

Speakers lauded the hard-won victory seven long years after the initial filing of the lawsuit and an anxious 11-and-a-half month wait following last year’s eight-week trial. Many spoke in historic, even poetic language.

“For Native American children and for the sovereign nations of New Mexico, this is historic. This is monumental. This is a landmark decision,” said Regis Pecos, co-director of the Leadership Institute and one of the founders of The Native American Budget and Policy Institute.

No other legal case has so effectively articulated the quality education Indian children deserve, he said.

Diane Torres-Velásquez, associate professor at the University of New Mexico and president of the Latino Education Task Force, name-checked George I. Sanchez, a New Mexican who went on to a life of prominence in education circles and the Mexican American-Chicano movements of postwar America.

In one of his books, “The Forgotten People,” Sanchez had written about Native Americans and Spanish-speaking people of New Mexico, Torres-Velásquez said.

“We are very grateful that the judge no longer sees us as forgotten people,” Torres-Velásquez said.

Veronica Garcia was happy, too. But the Santa Fe Schools Superintendent and former PED Secretary under Democratic Gov. Bill Richardson was also reflective, evoking the bittersweetness of an otherwise happy day.

“I feel a sadness for the generations lost,” Garcia said.

In her ruling, Singleton sided with MALDEF and Center on Law and Poverty lawyers in example after example of insufficiencies and inequities that fall disproportionately on Native Americans and English learners, students with disabilities, and low-income students.

From not enough textbooks in high-need schools to the state not following already-established laws to provide culturally appropriate curriculum for Native American students to a glaring shortage of high-quality teachers in high-poverty schools — as well as lackadaisical tracking by the state of the number of students enrolled in programs focused on at-risk students — Singleton found ample evidence of the state not meeting constitutional duties.

“The school children who are now caught in an inadequate system and who will remain there if an injunction is not entered will be irreparably harmed if better programs are not instituted,” Singleton wrote. “Neither these children nor the Court can rely on the good will of the Defendants to comply with their duty.”

Media and onlookers await the start of Monday’s press conference to celebrate what supporters say is a historic ruling that will change how education is funded in New Mexico. Photo credit / Trip Jennings

Hesitant to risk a separation-of-powers court challenge, however, Singleton set an April 2019 deadline for the parties to develop  a plan to remedy the situation.

A Martinez administration challenge of Singleton’s ruling would put on hold possible action, but the ruling’s influence will reverberate beyond the confines of constitutional law. In an election year in which New Mexicans will select a new governor, expect debates between Democrat Michelle Lujan Grisham and Republican Steve Pearce on how best to address the gaps and inequities cited in Singleton’s ruling.

State lawmakers also predicted Monday that Singleton’s ruling will push an already high-profile issue — how to fund early and K-12 education — to greater prominence during the 2019 legislative session, which begins in January.

State Rep. Patricia Lundstrom, who is chairwoman of the powerful House budget committee, said it was time to sit down and work on a plan. “Let’s try to get things moving,” she said.

Looking into the future

What comes next for the plaintiffs might be drawn from the experience of Washington state, which just last month fulfilled its obligation to properly fund education after a similar lawsuit, McCleary vs. State.

Tom Ahearne, an attorney in the McCleary case, had this to say about the process: “It’s going to be a long road.”  

The McCleary lawsuit was filed in 2007. A trial court ruled in 2010 that the state was not meeting its constitutional obligation to all students and after appeal, the Washington Supreme Court in 2012 said the state needed to fix the system by Sept. 1, 2018. What followed was even more foot dragging by legislators, with the court imposing a fine of $100,000 per day until the state complied.

“Our lead plaintiff was a second-grader when we filed the lawsuit. She had graduated high school before the final ending of the case,” Ahearne said.

Most states automatically appeal school funding lawsuits, he said, because it makes far more financial sense to spend a few hundred thousand dollars defending the school system rather than having to shell out hundreds of millions right now. And without a concrete mandate from the courts, as in Singleton’s ruling, state lawmakers and administrators have less pressure to produce results quickly.

There is also the problem that the main constituency — kids, and many of their parents — don’t vote, and that other priorities fight for funding. In Washington, the state constitution puts education above every other priority.

“It is the paramount duty of the state to make ample provision for the education of all children residing within its borders…,” its constitution states. No other state has a stronger education mandate, according to the Network for Excellence in Washington Schools, the entity that brought the case.

In Singleton’s ruling, she said “A sufficient education is a right protected by the New Mexico Constitution. As such it is entitled to priority in funding. …the remedy for lack of funds is not to deny public school children a sufficient education, but rather the answer is to find more funds.”

Still, for Ahearne, the decade-long battle and its many frustrations have been worth the effort. The money has made a difference in education, he said, especially in rural areas that lacked basic infrastructure, such as internet access.

“I hear all the time from parents that are active in the schools, and the teachers, and the administrators and even the staff people that money actually matters, and you get what you pay for. And they now have the resources and the equipment, the curriculum and the kinds of things that you need to provide an education today,” he said.

What’s Next in New Mexico

Both candidates for governor, who will be on the hook for the lawsuit and its fallout — whether dealing with an  appeal filed by the Martinez administration or addressing the problems identified in the ruling — largely agreed Monday with the judge on the state of the educational system in New Mexico.

Democrat Michelle Lujan Grisham and Republican Steve Pearce also agreed when asked if they would withdraw an appeal if they are elected governor that it was too early to make any decisions on legal strategy.

Both candidates said their education plans would answer many of the issues that Singleton raised in her ruling.

Pearce spokesman Kevin Sheridan said the lawsuit wouldn’t have a big impact on Pearce’s ideas for reform because his education plan already addresses Singleton’s concerns. “It’s obviously an important lawsuit, it’s an important ruling, but in some ways our education plan is our education plan,” Sheridan said.

Pearce has said he would scrap the teacher evaluation system, work on teacher recruitment and retention, and give teachers more  training and mentorship. Pearce would also increase the number of school counselors and provide other supportive services, to free up teachers to concentrate on teaching. Sheridan said Pearce saw a need for more funding of schools, but would not pay for it through increased taxes.

Lujan Grisham said her education plan would increase spending on the schools, including raising teacher salaries, tap into the Land Grant Permanent Fund to help pay for early childhood education programs, and revamp the state’s testing regime.

“Michelle will not tolerate New Mexico schools failing any children, certainly not in the most vulnerable communities around the state, and her education plan addresses many of the criticisms found in the court’s opinion,” her spokesman James Hallinan said via email.

The suit evokes a question asked many times over the past decade: Does New Mexico spend enough to adequately fund its public education system?

A 2008 report, which was commissioned by the Legislature, estimated at the time that the state should have spent $334.7 million more in 2007-08 dollars “to achieve sufficiency in New Mexico.” The Legislature did not adopt the report’s recommendations and that cost estimate has only risen in the past decade.

In one of the few instances where Singleton didn’t side with the plaintiffs, the judge decided against putting a price tag on the necessary changes the state must adopt, a decision Sen. John Arthur Smith, D-Deming, noted Monday.

Smith, the chairman of the Senate Finance Committee, said the plaintiffs likely wanted to see the judge attach a number to the suggested constitutional remedies. Without a number the argument now will be over what satisfies the ruling.

“When you give that kind of latitude to 112 legislative members, that could be like the Keystone cops,” Smith said.  

Smith said the most responsible answer “would be tax reform and tax stability.”

While it is true Singleton didn’t direct legislators on how to pay for the changes needed, she listed eleven fund-producing options, most tax-related. They ranged from tapping the state’s permanent funds —  worth more than $20 billion — to raising personal income tax on higher earners and taxing internet sales.

She also listed reforming the state’s gross receipts tax and taxing gasoline, alcohol, cigarettes and motor vehicles at higher rates.

Longtime supporters of a constitutional amendment to tap New Mexico’s land grant permanent fund to help fund early childhood education predicted Singleton’s ruling would help them win converts in 2019.

The ruling “nudges those folks on the margins to realize that this money is better invested in early childhood than in the stock market,” said Rep. Antonio Maestas, D-Albuquerque.  

Another supporter, Rep. Javier Martinez, D-Albuquerque, added “if we are serious about dismantling racial inequities in New Mexico, we will look at the permanent fund and we will look at early childhood education to fix this.”  

Allen Sanchez, of CHI St. Joseph’s and a prominent early childhood advocate, agreed, saying Singleton’s ruling “really tells everyone, puts into a nutshell, what people for a decade have been asking the Legislature to do.”