Ruth Kraut

The lawsuit argues that the Michigan Constitution requires a free public education for all Michigan students, and that charging for a seventh hour is unconstitutional. Kary Moss, ACLU of Michigan executive director, outlined the position in an ACLU press release: “Allowing this model to continue will open the floodgates for any district in the state to charge for every conceivable part of their students’ education creating a two-tiered system in which students who have money get ahead, while those who do not fall behind.”

In early June, I wrote my first column for The Chronicle, about three aspects of the AAPS budget proposal. ["Column: Disparate Impact of AAPS Cuts?"] One of the areas I wrote about was seventh hour, a term that refers to the option of taking a seventh class during a semester, rather than the more standard six classes.

I was concerned about issues of equity – about Skyline students being able to acquire 7.5 credits in a year without paying, while Pioneer and Huron students could only earn 6 credits in a year for free. I was concerned about students losing access to the arts. I was concerned about disparate impacts.

I assumed that – as with many other proposals – this idea was poorly conceived, but legal.

A couple of days after my column was published in The Chronicle, I talked with the ACLU’s Kary Moss. (Full disclosure: Kary is a friend of mine, and we frequently discuss education issues. And that first Ann Arbor Chronicle column ended up as “Exhibit 4” in the ACLU complaint.)

Kary suggested to me that she was concerned about seventh hour, too – because she believed the move to charge tuition was unconstitutional.

Unconstitutional?! That thought had not even occurred to me.

Background of Constitutional Challenges

In 1966, school desegregation was a major issue in Ann Arbor. So, too, was a decision by the Ann Arbor school board to charge students fees for registration, textbooks and other classroom necessities.

At the heart of the issue was a discussion about what it means to provide a public education. The first public school in the nation (before we were a nation) was Boston Latin, founded in 1635. And in 1827, Massachusetts passed a law making schools free to all children.

In Michigan, the idea that a commonly-funded public education should be free to students began in the 1800s. In 1850 our state Constitution stated [emphasis added]:

Sec. 4. The legislature shall, within five years from the adoption of this constitution, provide for and establish a system of primary schools, whereby a school shall be kept without charge for tuition, at least three months in each year, in every school district in the state; and all instruction in said school shall be conducted in the English language.

Different language was enshrined in the 1908 state constitution, Article 11, § 9:

The legislature shall continue a system of primary schools, whereby every school district in the state shall provide for the education of its pupils without charge for tuition; …

By 1963, the Constitution – and the language in it – had changed slightly, and included secondary schools, but the sentiment was the same. Article 8, § 2 states:

The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.

We are still governed by the 1963 Michigan Constitution.

Despite the clear words of the Constitution, the fact is that over the years, public schools have often found themselves “pinched” in tight budget times. That was true in the mid-1960s, when the Ann Arbor school board found itself hard-pressed and decided to charge students for books and school supplies. Parents were unhappy, and they challenged this decision in circuit court on Sept. 6, 1966.

By 1970, the case had made its way to the Michigan Supreme Court, and in Bond v. Ann Arbor School District, the Supreme Court ruled that “it is clear that books and school supplies are an essential part of a system of free public elementary and secondary schools.”

In other words, the Ann Arbor school district could not charge students for items that are necessary for school – and neither could any other Michigan school district.

Over the years, other questions have come up. Did school districts need to provide sneakers or clothing for a required gym class? What about fees for field trips or after school athletics? In many cases, the answer is that yes, fees can be charged. I’ve paid for my children’s “pay-to-play” athletics. I’ve paid after-school theater fees. I have enough money to pay for them, but at times, with three children in the schools? Those fees really added up to a lot of money.

In a 2011 memo, State Superintendent Michael Flanagan reminded school districts that: “In March of 1972, the State Board of Education developed a position statement regarding Free Textbooks, Materials, and the Charging of Fees. For your information, this position statement is available on the Department’s website.” [.pdf of Flanagan memo] [.pdf position statement regarding free textbooks, materials and the charging of fees]

Perhaps Flanagan was responding to an incident in the Birmingham Public Schools district. Recently, Birmingham Public Schools settled a class action lawsuit, brought – again – by parents, around the issue of – again – being charged for school supplies, registration, and locks. As a result of the recent settlement, parents will be able to get back the fees they were charged over the last three years. [.pdf of Birmingham Public Schools settlement]

In that 2011 memo, Flanagan also summarized the State Board of Education’s position on charging fees for courses, writing: “In short, the position clearly indicates that: School districts may not make charges for any required or elective course, such as for general or registration fees, course fees, and/or textbook and school supplies.”

ACLU Case Against AAPS

Shortly after I talked with Kary Moss in early June, the ACLU sent the Ann Arbor school board a letter, writing that seventh hour “provides students with an opportunity to obtain credits toward graduation” and “cannot be differentiated from any other period of the traditional school day.”

Further, the letter stated: “These classes are not like extracurricular activities, which an intermediate appellate court allowed, in Attorney General v. East Jackson Public School, to be subject to special fees. The activities discussed in that case were not ‘necessary elements of a high school career’ and students did not receive credit for participation” [.pdf of ACLU letter to AAPS].

[Slight digression: If you're interested, the ACLU also has a fascinating “Right to Read” case wending its way through the Michigan courts. You can find more information about that here.]

Despite the ACLU letter, I heard individual AAPS board members say that they hoped to try out the fee system this year at $100/seventh hour, and then charge more – a lot more, like $400/class – the following year. Realize that $400/class would likely be unaffordable for many people who could afford $100/class.

This is a scan of a summer 2013 Ann Arbor tax bill. While the state Constitution promises schools that are free to students, the schools in fact are commonly funded, by us – the public. I think it’s worth every penny.

School board members seemed unfazed by the idea that they could potentially be sued. They seemed unconcerned that the charges would only affect the students with semester-long classes (at Pioneer and Huron) and not the students with trimesters (at Skyline). They also seemed unmoved by a letter in late June from Huron and Pioneer school counselors, asking the board to reconsider its decision because of the inequity between schools and because it will be hard to help students who need to meet graduation requirements. [This letter is attached as Exhibit 13 in the ACLU complaint.]

In the ACLU’s complaint – submitted on Wednesday, Aug. 7, 2013 in the 22nd Circuit Court of Washtenaw County – there are affidavits from the plaintiffs, Paloma Paez-Coombe and Elliot Polot. (They are both minors, so their parents file as “next friends.”) I found their statements very moving. [.pdf of ACLU complaint]

Elliot, who will be a senior this year, wrote: “My first choice of college is University of Michigan. They offer you a specific program where they can certify you to be a K-12 band director while still allowing you to study your instrument. . . To make myself competitive for this college program, I needed to take four years of band. Without seven hours of classes, I never would have had the opportunity to take advantage of the band program the way that I did. . . Some families can afford to pay for seven hours and some cannot. It’s not fair for families who can’t afford to pay the fee and I think they deserve the same opportunities as everyone else.”

Paloma will be a junior and is planning on taking seven classes each semester next year, including multiple AP classes. She wrote: “Last year, the only classes I took that did not count as requirements toward graduation were Orchestra and Spanish. I still had to take one semester of seven hours to get in all of my requirements.” She also wrote that the arts are very important to her at school, saying: “Orchestra is a nice way to do something physical and out of feeling instead of regular academics. . . It’s a good way to let out stress.”

In addition to taking seven hours each semester, Paloma has also paid to take an entire year of English online, and has been charged $250 for each of those classes. I wonder: If charging for seventh hour is not legal, would charging for English online be legal? Under what circumstances?

I personally found it hard to understand why the Ann Arbor school board would ignore the ACLU’s mid-June letter. I found it hard to understand why the school board would ignore the State Board of Education, which had written that “School districts may not make charges for any required or elective course.” I found it hard to understand how the school board could ignore the inequity in number of credits that students would be able to earn in a year at Skyline versus Huron and Pioneer.

I found it even harder to understand why the school board would risk spending money on a lawsuit, when charging a fee would only bring in an estimated $100,000 – out of an almost $184 million budget. I found it hardest to understand why they would want to make it more difficult for students to take critical classes.

In case you’re wondering, I’m rooting for the ACLU to win. And I’m rooting for students to be able to take the classes they want to take, whether that means–for a given student–six hours or seven hours per semester. But even if the ACLU case is not successful, the idea of charging for seventh hour is still a terrible one. As the 1908 Michigan Constitution stated: “Schools and the means of education shall forever be encouraged.”

To make that a reality, they need to be free.

Ruth Kraut is an Ann Arbor resident and parent of three children who have all attended the Ann Arbor Public Schools. She writes at Ann Arbor Schools Musings (a2schoolsmuse.blogspot.com) about education issues in Ann Arbor, Washtenaw County, and Michigan.

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Ruth Kraut

Next week, the board of the Ann Arbor Public Schools will need to cut about 5% from the district’s budget. That’s a reduction of about $8.6 million. Teachers have already taken a 3% pay cut.

Per-pupil funding for next year ($9,025) will be less than the per-pupil funding of 12 years ago in 2001-2002 ($9,034). So it’s no surprise that we’re at the point where cuts are painful. Cutting teachers, cutting programs – none of it is happy news. There will be consequences. The question is, what kind of consequences?

In the civil rights world, a “disparate impact” occurs when a policy is non-discriminatory in its intent but affects a “protected class” of people in a disproportionate way. In Michigan’s Elliott-Larsen Civil Rights Act, for example, these protected classes include race, religion, color, national origin, age, sex, height, weight, and marital status.

AAPS is a district with a large achievement gap – between white students and African American and Hispanic/Latino students. And this gap has persisted for many years. Although in state civil rights law, income is not a protected status, income is highly correlated with race, age, and marital status. District-wide, there is also an achievement gap that is related to income: Poor kids are more likely to do poorly in school.

So it’s important to consider the AAPS budget from a perspective of potential disparate impacts. On the surface, the proposed budget cuts treat all students equally. But if we look deeper, would we find that certain budget cuts worsen – or perhaps improve – the achievement gap?

Three proposed budget cuts have raised a significant amount of opposition this year: (1) eliminating high school transportation; (2) cutting reading intervention teachers; and (3) cutting seventh hour or making it a tuition-only option. Together, these three account for just under $1.5 million of the $8.6 million in cuts. Do these cuts, in particular, have a disparate impact on any groups?

High School Transportation

One of the still-pending proposals is to cut all transportation for high school students, unless it’s related to special education. That would affect all students outside of the walk zones, including students who take school buses and those who ride Ann Arbor Transportation Authority buses using school-provided bus passes. In this year’s one-day spring “ride count,” just 29% of the students who could take school buses did take them. But remember, not all kids take the bus every day. If the counting were done over the course of a couple of weeks, the number might be closer to 40%.

AAPS districts for its three comprehensive high schools.

Whatever the exact percentage, it doesn’t appear that ridership is distributed evenly across the grades. My own daughter’s experience is probably not unusual. In ninth and tenth grades, she took the school bus to Skyline nearly every day. In eleventh grade, she didn’t have a first hour class, so she generally took the AATA bus (which frequently ran late, to her great consternation). In twelfth grade, though she didn’t have a car, a couple of her friends did – and she got rides to school almost every day.

The district doesn’t collect data on or analyze the school bus riders based on income. But it’s plausible that a higher proportion of students on the free and reduced price lunch program take school buses compared to students from families with higher incomes, who are much more likely to have an extra car.

So cutting high school transportation will affect younger students more than older students. The transportation cut will affect people employed with less flexible jobs more than it will impact people who have more flexible jobs. Families with no car or one car will be impacted more than two- or three-car families. For those students who can ride an AATA bus (or two, or three, after transfers), it will cost them money – because the district will not be able to provide any bus passes if it cuts general transportation. That’s $1.50/day x $180/year, or $270 per student.

AAPS is a very large district! Think about the student who lives at the low/moderate-income Arrowwood Hills Housing Cooperative, off Pontiac Trail. Students there are districted for Skyline High School. It’s possible to arrive at school on an AATA bus. The #1 bus leaves Arrowwood at 6:26 a.m., and after a transfer downtown to the #18, that student would arrive at Skyline at 7:06 a.m. (a little early for a scheduled school start of 7:30). So for less than $300 per year per student, an Arrowwood Hills resident can get transportation to Skyline.

Transfers required to get from Arrowwood to Skyline High School, if a student takes AATA buses. Some students, however, live in areas that don’t get AATA service, making it even more difficult if the school system eliminates transportation to high schools.

But what if that same low/moderate-income student lives in a manufactured home community out on Jackson or South Wagner roads? No AATA routes serve that area. Directions on Google Maps suggest that you first drive to the nearest bus stop! What if your parent has to be at work at 7 a.m. and there are no “extra” cars? What if you are too young to drive? What if you live on a busy street without a sidewalk or shoulder, three miles from school? As a parent, do you want your teenager walking on that street in the dark?

I live in a two-parent, two-car household, and we both have some flexibility with our schedules. And as my son was looking at high schools this winter, we were very intrigued by the Washtenaw International High School. Yet I was worried about the question, “How would I get him there, and back?” (WiHi is located at the former East Middle School in Ypsilanti.) I knew it would be much easier for me if he could walk, bike, or take the bus to an in-district school.

But what if transportation is cut? I can tell you that if I lived in a corner of the district (say, a rural area near South Lyon, or Dexter, or Saline), and I was going to have to drive my child either way, I would think differently about WiHi, or about the South Lyon Schools. In that case, I wouldn’t be comparing a school with transportation to a school without transportation. I would be comparing two schools without transportation – and the second school might be more convenient.

Unfortunately, this is an all-or-nothing decision. The district can’t choose a few areas (say, those with low-income housing) and only provide transportation there. The district stands to save $466,000 by cutting transportation. However, every student who doesn’t show up on count day, or who attends a different school, costs the district around $9,000 in the state’s per-pupil funding allowance. So if even 50 students were lost because of a decision to cut transportation, the district would lose all of the projected savings.

But I digress.

The crucial point is that cutting high school transportation will have a disparate impact on younger high school students. And because of the ways that income and race are so closely intertwined in today’s America, cutting transportation will certainly have a disparate impact on students of color and on poor students. Assessed in relation to the achievement gap, it is clear: If students can’t, or don’t, arrive at school, they are going to fall further behind.

Reading Intervention

Today, the district employs the equivalent of 10 reading intervention (RI) teachers in the Ann Arbor elementary schools – a half position at each elementary school. The current proposal is to cut that in half. RI teachers would be retained in just the schools “with the highest need.” This year, 460 students qualified for RI services.

Who were these students? Were they low-income? Were they students of color? The best indicator available to the district for a student’s household income is the qualification for free and reduced price lunch. I asked Liz Margolis, director of communications for AAPS, if the district identified students in the RI program by income or race. The answer is no. The district says it can’t share information about students in the Free and Reduced Price Lunch program – because it’s considered private. And the district doesn’t keep track of students in the RI program by race/ethnicity. If the district did track that information and share those aggregated numbers, it might yield a revelation that makes everyone uncomfortable.

It’s possible at least to make an educated guess. In 2007-2008, nearly half of the students who were identified as cognitively impaired were African-American – even though at the time just 16% of Ann Arbor students were African American. One of the key identifying statistics of the achievement gap is MEAP test scores, and if there is one thing that the MEAP is good at testing, it’s reading. On the 2010-2011 MEAP tests, for instance, 96% of the district’s white third graders achieved “proficient” status while 80% of African-American third graders, 84% of the Hispanic/Latino students, and 76% of “economically disadvantaged students” achieved “proficient” status. (You can find more data on the AAPS website.)

So we can be fairly confident – even though the district doesn’t officially track it – that cutting the Reading Intervention program, which serves the too-young-for-MEAP population of K-2 students, would have a disparate impact on students of color and low-income students. Of course, that prompts the question: Does the RI program work? If it doesn’t work, then it’s not helping to reduce the achievement gap, even if there are disparities in enrollment. But if it does work, then eliminating RI could diminish the district’s ability to address the achievement gap. Per student, RI is the most expensive program proposed for elimination (approximately $2,175/student). But, if the elimination of the program causes students to fall even further behind in reading, they could wind up qualifying for mandated special education services. And those costs would be far greater.

Seventh Hour

Another possible cut would affect seventh hour – the opportunity to take a seventh class during a semester, rather than the more standard six classes. One possibility is to cut the seventh hour option altogether. Another possibility is to convert seventh hour to a tuition-only option.

Cutting seventh hour completely would have different impacts at the district’s three comprehensive high schools. If seventh hour is completely cut at Pioneer and Huron high schools, then students could only take six credits (12 courses) a year. That has a couple of implications.

Currently, Skyline High School uses a trimester system, and there are five hours/trimester (5 x 3 = 15 classes or 7.5 credit hours), compared to seven hours/semester at the other schools (7 x 2 = 14 classes or 7.0 credit hours). They are not exactly comparable, because some classes that are taught in two semesters at Pioneer and Huron are taught in three trimesters at Skyline – for example, advanced placement (AP) classes and some math classes. And in practice, lots of students at Pioneer and Huron only take six classes, while most students at Skyline take five classes every term. But if seventh hour is cut, and Skyline stays with the trimester system, to maintain parity, should only four classes be offered per trimester (because 6 x 2 = 12 and 4 x 3 = 12)? Now that would affect a lot of people.

How many students take seventh hour? At any given time, it’s less than a quarter of the enrolled student body. But many students take a seventh hour only every second or third semester, so the impact would affect closer to half of the district’s students. Students who are most likely to take a seventh hour include: students who take orchestra, band, or choir; students who take a lot of AP classes; students who need to make up classes (credit recovery); and students in career/technical education. The Pioneer music department, for instance, estimates that 43% of the students in the music department take a seventh hour at least some of the time in order to get their necessary (non-music) credits.

I don’t have any idea how many students in the music program are African American or Hispanic/Latino. I don’t have any idea what percentage of students in the music program qualify for free and reduced price lunch. (The percentage of high school students who qualify for free/reduced price lunch in Ann Arbor is around 15%, much lower than in the middle and elementary schools. Families have to submit a separate application for each student, and in many cases the ones for older students are not submitted.) I don’t have any idea how many students would have difficulty actually earning enough credit hours in four years without seventh hour (and still be able to take music, or technical education). I don’t have any idea how many students are just barely above the free and reduced price lunch cutoff, but whose parents don’t have the disposable income to pay for a seventh hour. But the district probably does know, or could know.

I do know that if Skyline keeps a trimester system, then cutting the fifth hour would affect more students than cutting the seventh hour at Pioneer or Huron.

Cutting seventh hour compared to conversion to tuition could turn out to have quite different impacts, depending on how it’s handled. If seventh hour becomes a tuition-only option, should the fifth hour at Skyline be made tuition only? And if the district makes a seventh hour available with tuition only, would students who qualify for free and reduced price lunch have the fees waived? How would that affect the cost savings? Who would do the billing? What happens if parents say they’ll pay, but then don’t?

So is there a disparate impact to the proposals affecting seventh hour? Probably, but I can’t quantify it. What is interesting to me is that, if used correctly, seventh hour could potentially be a tool for reducing the achievement gap. I have talked to African-American parents and immigrant parents who have told me they believe that by keeping their children enrolled in music programs, their children have an opportunity to do better overall in school. That’s in part because being in orchestra or band affects your other scheduling options. And it makes it more likely that you will be scheduled with more serious students.

Conclusion

In the end, we do have budget cuts to make. It seems to me that high school transportation affects the largest number of students. It also has the greatest potential to create a disparate impact and undermine efforts to reduce the achievement gap.

If these are the wrong cuts, then we need to find other items to cut – at least until we can convince the state legislature to improve school funding. To my mind, avoiding any or all of these cuts might involve increasing district-wide class sizes just slightly by reducing general teaching numbers. I admit, that is a tough pill to swallow, but to me it is a better alternative than cutting high school transportation.

Ruth Kraut is an Ann Arbor resident and parent of three children who have all attended the Ann Arbor Public Schools. She writes at Ann Arbor Schools Musings (a2schoolsmuse.blogspot.com) about education issues in Ann Arbor, Washtenaw County, and Michigan.

The Chronicle relies in part on regular voluntary subscriptions to support our local reporting and columnists. Check out this link for details: Subscribe to The Chronicle. And if you’re already supporting us, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!