The American boom-and-bust approach to educational opportunity has drastic consequences. Children cannot learn in over-sized classes, especially in needy schools with the least experienced teachers. Furloughs shorten the school calendar even as research argues for longer school days and years -- especially for low-performing students. And the persistence of such conditions permanently damages the life chances of entire generations of children.

But cutting education services in this manner is not only unconscionable -- it's unconstitutional.

In recent years, high courts in 21 states have held that state constitutions guarantee the right of all public school students to an "adequate," a "thorough and efficient," or a "sound, basic education." The courts in these "adequacy" cases have consistently emphasized that children are entitled to meaningful educational services that will prepare them for the competitive global marketplace and to function as capable citizens in a democratic society. Further, courts asked to by plaintiffs to stop governors from cutting constitutionally-mandated services during economic downturns have held - in every single instance -- that the constitutional right to a quality education is not conditional and should not evaporate during times of recession. In Washington State, the Superior Court ruled that "the duty of the state to fully fund the common school program is not suspended in any part during period of fiscal crisis." High courts in New Hampshire and New Jersey have issued similar rulings.

Is school spending untouchable? No -- but when vital educational services are at issue, the burden is on the state to show how necessary services for all students can be maintained, despite a reduction in appropriations. Courts and legislatures need to identify core educational services -- and the amount and quality of these services -- that are constitutionally required, particularly for low-income and other disadvantaged children. Then they need to carefully analyze the cost of providing these services. Only when credible analyses show that core constitutional services can be provided at lower cost, can budget reductions be considered legal.

When cost reductions must be made, instead of arbitrary, across-the-board cuts, or furloughs, lay-offs of vital staff or delays in textbook purchases, states should effect cost reductions that don't harm vital services to children. These might include:

Zero-based budgeting. During flush times, most states -- typically to avoid fights with advocacy groups over "sacred cow" programs -- simply layer new education initiatives over older unsuccessful ones. A zero-based approach requires district managers to reconsider and justify every budget item.

Multiyear budgeting. Stable funding promotes cost savings by eliminating hasty year-end purchasing to avoid losing an appropriation or the scrapping of new programs simply because of heavy start-up costs. It also enables schools to forego proactive spring teacher layoffs to cover possible fall budgetary scenarios. Recruiting, hiring and training a single replacement teacher costs between $10,000 and $20,000. 

School district consolidation. One study found that doubling enrollment reduces costs by 61.7 percent for a 300-pupil district and 14.4 percent for a 1,500 pupil district. Bigger districts can offer a wider range of courses, academic and curricular supports, technological resources and effective teachers.

Pension reform. Teacher retirement constitutes one of the largest components of state public employee retirement systems, and now the stock market collapse has created a crisis in pension obligations for school districts. California's teacher pension alone has lost $56 billion. In New York City, pension fund contributions in fiscal 2008 were $5.7 billion, or approximately 10 percent of the entire budget. Reducing pension payments for newer teachers helps, but real savings will come only from scaling back promised benefits for older teachers. Many states still allow teachers to retire with full benefits at 55 - and many of these "retirees" continue to work for the school system or for private employers.

Finally, like Joseph in Egypt, states can avoid periodic funding crises simply by storing surplus in good years to maintain stable service in bad ones. Most states have stabilization or rainy day funds, but these are capped far below what's necessary. States should eliminate caps and establish dedicated revenue sources, such as a substantial percentage of sales or income taxes, for education and education stabilization funds.

The bottom line: children's constitutional right to education is not negotiable. Belts can be tightened in hard times -- but only in ways that ensure all children are prepared to work, vote and live in our modern society. If we fail to protect that right, our future will be far bleaker than it appears right now.

The article "Educational Budget Cuts: Unconscionable - And Unconstitutional" was published on February 8th, 2010 in the Huffington Post. http://www.huffingtonpost.com/michael-rebell/educational-budget-cuts-u_b_453636.html