ELEVENTH JUDICIAL DISTRICT COURT COUNTY OF MCKINLEY STATE OF NEW MEXICO WILHELMINA YAZZIE, Individually and as next friend

of her minor child, XAVIER NEZ; and JAMES MARTINEZ, Individually and as next friend of his minor child, MARCOS MARTINEZ; PATRICK BARRETT, Individually and as next friend of his minor child, GENESIS CANUTO; and RODNEY BOWE, Individually and as next friend of his minor children, JUSTUS BOWE and SOLOMON BOWE. Plaintiffs, vs. No. ____________________________

THE STATE OF NEW MEXICO; HANNA SKANDERA, SECRETARY-DESIGNATE OF THE NEW MEXICO PUBLIC EDUCATION DEPARTMENT; and THE NEW MEXICO PUBLIC EDUCATION DEPARTMENT Defendants. COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF TO BRING NEW MEXICOS PUBLIC SCHOOLS INTO COMPLIANCE WITH THE EDUCATIONAL MANDATE OF THE NEW MEXICO STATE CONSTITUTION Plaintiffs, through their undersigned counsel, bring this action for declaratory and injunctive relief, pursuant to Article XII, 1 of the New Mexico Constitution and the New Mexico Declaratory Judgment Act, NMSA 1978, 44-6-1 to 44-6-15 (1975), against the State of New Mexico, the New Mexico Public Education Department, and its Director. Plaintiffs are parents of children of public schools in New Mexico. Plaintiffs seek a Declaratory Judgment that the State of New Mexico, the New Mexico Public Education Department (PED) and the Secretary-Designate of the PED (Secretary) have failed to provide a uniform system of free

public schools for the sufficient education of all the children of school age as mandated by the New Mexico State Constitution. Plaintiffs also seek an order enjoining the Secretary-Designate and the PED to develop, with the school districts and the legislature, a budget proposal, and work to obtain a state appropriation that will provide a constitutionally sufficient education to all school age children and ensure that the money is distributed so as to provide all school age children with a sufficient and uniform education. INTRODUCTION 1. Public school education in New Mexico is in crisis. New Mexicos students rank

at the very bottom in the country in educational achievement. New Mexicos children have the lowest likelihood of success of all children in the country. For many years, New Mexicos public education system has been the subject of intense discussion, study and scrutiny. On an annual basis, legislative task forces and committees acknowledge the insufficiency of funding for public education in New Mexico and recommend increases. Additionally, the same legislative task forces and committees acknowledge the outdated and insufficient nature of New Mexicos public education funding formula (funding formula) which fails to appropriate sufficient levels of funding for students who live in poverty or are identified as English language learners. A recent focus of PED is to advocate for funding controlled by PED outside the New Mexico public education funding formula. This below the line funding requested by PED violates the uniformity requirement of the educational mandate of the New Mexico Constitution. On a recurring basis, proposals to increase the overall levels of funding for public school education in New Mexico to a level of sufficiency have failed. Proposals to correct known deficiencies in the funding formula and weight the funding formula to provide funding for poor children and English language learning students also fail year after year. Conversely, several below the line

educational funding proposals that violate the uniformity provision of the educational mandate have recently been enacted as law. PARTIES 1. Wilhelmina Yazzie is an individual, parent and guardian of minor plaintiff child,

Xavier Nez, who attends school in the Gallup McKinley County School District, and pays taxes in McKinley county. 2. James Martinez is an individual, parent and guardian of minor plaintiff child,

Marcos Martinez, who attends school in the Albuquerque Public Schools, and pays taxes in Bernalillo county. 3. Patrick Barrett is an individual, parent and guardian of minor plaintiff child,

Genesis Canuto, who attends school in the Albuquerque Public Schools, and pays taxes in Bernalillo county. 4. Rodney Bowe is an individual, parent and guardian of minor plaintiff children,

Justus Bowe, who attends school in the Albuquerque Public Schools and Solomon Bowe, who attends a charter school in Albuquerque, New Mexico, and pays taxes in Bernalillo county. 5. 6. All Plaintiff children presently attend public schools in the State of New Mexico. Defendant, the State of New Mexico, is one of the fifty states of the United States

of America and all of the individual Plaintiffs reside in New Mexico. 7. Defendant, New Mexico Public Education Department, is a department of

Defendant State of New Mexico established by New Mexico law with its principal place of business in the Jerry Apodaca Education Building, 300 Don Gaspar, Santa Fe, New Mexico 87501.

8.

Defendant Hanna Skandera, Secretary-Designate of Education of the Public

Education Department has been designated by Governor Susanna Martinez as the Secretary of Education for the New Mexico Public Education Department and her principal place of business is in the Jerry Apodaca Education Building, 300 Don Gaspar, Santa Fe, New Mexico 87501. JURISDICTION AND VENUE 9. This Court has jurisdiction of the subject matter of this action pursuant to the New

Mexico Constitution, Art. VI, 13. 10. Jurisdiction is proper in this court pursuant to NMSA 1978 38-3-1.1 because

Plaintiffs seek review of, and declaratory judgment regarding, the actions of an executive branch department. The Declaratory Judgment Act, at NMSA 1978 44-6-2 confers District Court jurisdiction to declare rights, status and other legal relations whether or not further relief is or could be claimed. The Declaratory Judgment Act specifically provides for such suit against the state of New Mexico or any official thereof, and the issuance of declaratory judgment calling for a construction of the New Mexico constitution. NMSA 1978 44-6-13. 11. Venue is proper in McKinley County pursuant to NMSA 1978 38-3-1(G)

because Plaintiffs Wilhelmina Yazzie and Xavier Nez reside within the County. STATE CONSTITUTIONAL MANDATE FOR EDUCATION 12. Article XII, Section 1 of the New Mexico Constitution (the educational

mandate) mandates that a uniform system of free public schools sufficient for the education of, and open to, all the children of school age in the state shall be established and maintained. 13. The educational mandate is a judicially enforceable constitutional mandate to the

State of New Mexico, PED and Secretary to provide an adequate and equitable system of free public education.

FACTS REGARDING EXTREMELY LOW PERFORMANCE BY NEW MEXICO STUDENTS 14. The National Achievement Educational Performance test (the NAEP), a

nationally recognized and used measure of education achievement, shows that New Mexico is tied with Mississippi for the lowest ranking nationally for 4th grade reading achievement scores. According to the most recent data available, in 2013, only one fifth (21%) of New Mexicos 4th graders read at or above grade level. Of those 4th graders who tested below proficient in reading, 48% scored in the lowest category below basic meaning that these students had the furthest distance to cover in order to meet basic, minimum proficiency. New Mexico has the highest percentage of 4th grade students in this category in the country. 15. NAEP results for 2013 indicate that less than one third (31%) of our 4th grade

students are at grade level in math, ahead of only three states Alabama, Louisiana and Mississippi. 16. NAEP results for 2013 indicate that only one fifth of New Mexicos 8th graders

read at grade level (22% proficient or above), putting New Mexico ahead of only Mississippi. 17. NAEP results for 2013 indicate that less than one fourth (23%) of New Mexicos

8th graders are proficient in math (ahead of only Alabama, Louisiana and Mississippi). 18. 19. NAEP results for previous years were very similar to the 2013 results. For example, according to the 2011 NAEP results, 70% of fourth graders were not

proficient in math, and 79% of fourth graders not proficient in reading. Also during 2011, 76% of eight graders were not proficient in math, and 78% of eighth graders were not proficient in reading.

20.

Similarly, the 2009 NAEP results show that 74% of fourth graders were not

proficient in math, with 80% not proficient in reading, and 80% of eighth graders were not proficient in math, and 78% not proficient in reading. 21. Local measures also show that extremely large numbers of New Mexican students

are not proficient in reading or math. 22. The most recent results (school year 2012/2013) of New Mexicos Standards

Based Assessment (NMSBA) show that 54% of 4th graders are not able to read at grade level, with 40% still not testing proficient in reading by 8th grade. Even worse, by 11th grade, 60% of New Mexicos students are not proficient in reading. 23. The NMSBA math results for 2013 show that 55% of 4th graders are not

proficient in math, 58% of 8th graders are not proficient in math, and 58% of 11th graders are not proficient in math. 24. The NMSBA science results for 2012-2013 show that 47% of all 4th graders and

60% of all 11th graders are not proficient in science. 25. 26. The NMSBA results for 2013 are similar to results in previous years. Based on the SY 2011-2012 NMSBA reading results, 50% of all 4th graders, 45%

of all 8th graders, and 53% of all 11th graders were not proficient readers. 27. Based on the SY 2011-2012 NMSBA math results, 56% of all 4th graders, 58% of

all 8th graders, and 60% of all 11th graders were not proficient in math. 28. Based on the SY 2010-2011 NMSBA reading results, 53% of all 4th graders, 46%

of all 8th graders and 51% of all 11th graders were not proficient readers. 29. Based on the SY 2010-2011 NMSBA math results, 55% of all 4th graders, 59% of

all 8th graders, and 61% of all 11th graders were not proficient in math.

30.

Based on the SY 2010-2011 NMSBA science results, 53% of all 4th graders and

60% of all 11th graders were not proficient in science. 31. According to the U.S. Department of Education, New Mexicos overall

graduation rate is one of the lowest in the country. 32. New Mexico also has the highest rate of school age children (16 19 year olds)

not in school 9% - of any state in the country (the national average is 5%). 33. New Mexico public schools fail to prepare students to meet the minimum

admissions requirements for postsecondary institutions and community colleges. 34. New Mexicos average composite ACT score (19.9) is less than the national

average composite ACT score (21.1). 35. coursework. 36. 37. New Mexico spent $22 million on college remedial courses in 2013. Students that enroll in remedial courses have decreased chances of completing a New Mexicos public schools fail to prepare students for the rigors of college

higher educational credential on time, where taking one remedial course drops the six-year bachelors degree attainment from 77% to 17%. 38. 78% of students enrolling in remedial classes are recent graduates of New Mexico

public high schools. 39. Nearly 50% of New Mexico high school students graduating in 2012 and

enrolling in New Mexico colleges the following fall required remedial courses. 40. Previous analysis by the Office of Education Accountability indicates students

who require remedial courses in colleges are less likely to complete a degree or certificate program.

41. credentials.

Currently, only 29% of New Mexicos 25- to 35-year olds have higher education

FACTS RELATED TO ACHIEVEMENT GAP FOR LOW INCOME STUDENTS 42. New Mexico has one of the highest rates of child poverty in the country: 31% of

New Mexicos children live at or below the federal poverty level, which in 2013 was $23,550 a year for a family of four. This places New Mexicos child poverty rate far above the national child poverty rate average of 23%, and ranks New Mexico 49th in the country (ahead of only Mississippi). 43. According to the most current data available, New Mexico has 338,122 students.

A full 67% of New Mexican school students are designated as low-income, meaning they live in families at or below 185% of the federal poverty level, and are eligible for free or reduced lunch, the second highest rate in the country (again ahead of only Mississippi), and far above the national average of 48%. 44. A higher percentage of children in New Mexico live in extreme poverty (14%)

than any other state in the nation besides Mississippi and Louisiana. Living in extreme poverty means living in a family that survives at 50% of the federal poverty level, meaning less than $12,000 a year for a family of 4. 45. Out of New Mexicos 89 school districts, 81 of them have a majority of students

who qualify for free or reduced lunch. Additionally, 28 of 89 public school districts have student populations in which over 75% of students qualify for free or reduced lunch, making them districts of concentrated poverty. Thus, 31% of New Mexico school districts are located in areas of concentrated poverty. In two districts in the state, Gadsden and Hatch, more than 95% of the students qualify for free or reduced lunch.

46.

On the NAEP, only 20% of low income 4th grade New Mexican students test

proficient or above in reading, while 51% of non-low income 4th grade New Mexican students test proficient, making an achievement gap of 31 percentage points. 47. On the NAEP, only 20% of 8th grade New Mexican students score proficient or

above in reading, while 48% of non-low-income 8th grade New Mexican students test proficient, making an achievement gap of 28 percentage points. 48. NAEP math scores show only 25% of 4th grade low income students score

proficient on math, while 59% of non-low-income students test proficient, making an achievement gap of 34%. 49. NAEP math scores for New Mexican 8th graders show that only 20% of low

income students scored proficient on math, with 49% of non-low-income students scoring proficient, making an achievement gap of 29%. 50. The NMSBA also indicates a significant achievement gap when low income

students reading, math and science scores are compared to students overall. 51. Schools with higher poverty rates tend to have the highest college remediation

rates, including Gallup High at 77%, West Mesa High in Albuquerque at 77%, and Zuni High at 90%. 52. In 2012, 79% of low-income students required college remedial courses, as

compared to 50% of New Mexican students overall. FACTS RELATED TO ACHIEVEMENT GAP OF NATIVE AMERICAN, LATINO/HISPANIC AND AFRICAN AMERICAN STUDENTS 53. In addition to extremely high numbers of children who are economically

disadvantaged, New Mexican students are also predominately students of color. In total, 59% are

Hispanic/Latino, 10% are Native American, 2% are African American, and 1% are another ethnicity other than Anglo. In all, 72% of New Mexican students are students of color. 54. Disparities in academic performance exist between students of color, as compared

to Caucasian students, where more than half of Caucasian students achieve proficiency and above while, in most cases, more than half of all students of color do not. 55. For example, based on the SY2013 NMSBA, 63% of Caucasian 4th graders

scored proficient in reading, while only 43% of African Americans, 41% of Hispanic/Latinos and 29% of Native Americans were proficient readers. 56. Turning to 8th grade results of the SY2013 NMSBA, 75% of Caucasian 8th

graders were proficient readers, with only 54% of the African American students, 56% of the Latino/ Hispanic students and 44% of the Native American students testing proficient in reading. 57. By 11th grade, 71% of Caucasian students tested proficient in reading, with only

52% of the African American students, 50% of the Hispanic students and 41% of the Native American students scoring proficient or above in reading. 58. Based on the SY2013 NMSBA math results, 62% of Caucasian 4th graders scored

proficient, with only 39% of African American students, 41% of Hispanic students, and 31% of Native American students scoring proficient. 59. Turning to 8th grade NMSBA math results, 59% of Caucasian 8th graders were

proficient in math, with only 33% of the African American students, 37% of the Latino/Hispanic students and 29% of the Native American students scoring proficient. 60. By 11th grade, the NMSBA math results show that 59% of Caucasian students are

proficient in math, with only 30% of African American students, 35% of Latino/Hispanic students, and 33% of Native American students scoring proficient or above in math.

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61.

The science gap is particularly large. Based on the SY2013 NMSBA science

results, 73% of Caucasian 4th graders were proficient, as compared to 48% of African American students, 48% of Latino/Hispanic students and 32% of Native American students 32%). 62. The 11th grade 2013 NMSBA science results show that 63% of Caucasian

students are proficient, with only 34% of African Americans, 32% of Latino/Hispanics, and 22% of Native Americans scoring proficient in science. 63. The NMSBA results for SY2012 and SY 2011 show a similar achievement gap,

with Caucasian students much more likely to do well on educational achievement tests than African American, Latino/Hispanic or Native American students. 64. For example, in SY 2012, 66% of Caucasian 4th graders were proficient in

reading, while only 50% of African Americans, 45% of Latino/ Hispanics, and 35% of Native Americans were proficient. 65. In SY 2012, 72% of Caucasian 8th graders were proficient in reading, with only

52% of African Americans, 49% of Latino/ Hispanics, and 42% of Native Americans proficient. 66. In SY 2012, 65% of Caucasian 11th graders were proficient in reading, with only

43% of African Americans, 39% of Latino/Hispanics, and 30% of Native Americans scoring proficient or above in reading. 67. Turning to SY2012 NMSBA math scores, 62% of Caucasian 4th graders tested

proficient in math, with only 415 of African Americans, 38% of Latino/Hispanics, and 30% of Native Americans testing proficient in math. 68. For 8th graders in SY 2012, 59% of Caucasian students testing proficient in math,

with only 38% of African Americans, 36% of Latino/Hispanics, and 28% of Native Americans testing proficient.

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69.

By 11th grade, NMSBA math results show that 59% of Caucasian students tested

proficient, with only 31% of African Americans, 31% of Latino/Hispanics and 28% of Native Americans scoring proficient or above in math. 70. Based on the SY2011 NMSBA results, 63% of Caucasian 4th graders were

proficient in reading, with only 43% of African Americans, 41% of Latino/Hispanics and 32% of Native Americans. 71. In 8th grade, NMSBA math results show 70% of Caucasian students testing

proficient in reading, with only 46% of African Americans, 47% of Latino/Hispanics and 44% of Native Americans testing proficient. 72. In 11th grade, 65% of Caucasian students scored proficient on NMSBA reading

tests, with only 42% of African Americans, 41% of Latino/Hispanics, and 35% of Native Americans scoring proficient or above in reading. 73. Based on the SY2011 NMSBA, 61% of Caucasian 4th graders scored proficient

or above in math, with only 35% of African Americans, 39% of Latino/Hispanic, and 32% of Native Americans scoring proficient. 74. NMSBA results for 8th grade math showed that 58% of Caucasian students scored

proficient or above, with only 35% of African Americans, 34% of Latino/Hispanics and 28% of Native Americans testing proficient. 75. NMSBA results for 11th grade math showed that 57% of Caucasian students

tested proficient, with only 27% of African Americans, 30% of Latino/Hispanics and 25% of Native Americans scoring proficient or above in math.

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76.

Finally, the SY2011 NMSBA science results showed that 68% of Caucasian 4th

graders were proficient with only 39% of the African Americans, 41% of the Latino/Hispanics and 27% of the Native Americans proficient in science. 77. The NMSBA SY 2011 science results for 11th graders showed that 61% of

Caucasian 11th graders were proficient with only 30% of the African Americans, 30% of the Latino/Hispanic and 23% of the Native Americans scoring proficient or above in science. 78. In 2012, the average college remedial rate was higher for students of color than

Anglo students, with 59% of Native American students and 68% of Hispanic students requiring college remedial courses, compared to 50% of students overall. FACTS RELATED TO ACHIEVEMENT OF ENGLISH LANGUAGE LEARNERS 79. English language learner (ELL) refers to students being served in appropriate

programs of language assistance (e.g., English as a Second Language, High Intensity Language Training, bilingual education). 80. NAEP reading and mathematics scale scores for non-ELL students are higher than

their ELL peers scores. This disparity is known as the achievement gap. 81. In all years between 1992 and 2011 NAEP reading scale scores for non-ELL 4th-,

8th- and 12th-graders were higher than their ELL peers scores. a. In SY 2011 the national average reading scale score for non-ELL 4th-graders was 225. In the same year, the national average reading scale score for ELL 4th-graders was 188. The SY 2011 reading achievement gap between nonELL and ELL 4th-graders was 36 points. b. In SY 2011 the national average reading scale score for non-ELL 8th-graders was 267. In the same year, the national average reading scale score for ELL

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8th-graders was 224. The SY 2011 reading achievement gap between non-ELL and ELL 8th-graders was 44 points. c. In SY 2010 the national average reading scale score for non-ELL 12th-graders was 290. In the same year, the national average reading scale score for ELL 12th-graders was 240. The SY 2010 reading achievement gap between nonELL and ELL 12th-graders was 50 points. 82. In all years between 1992 and 2011 NAEP mathematics scale scores for non-ELL

4th-, 8th- and 12th-graders were higher than their ELL peers scores. a. In SY 2011 the national average mathematics scale score for non-ELL 4thgraders was 243. In the same year, the national average mathematics scale score for ELL 4th-graders was 219. The SY 2011 mathematics achievement gap between non-ELL and ELL 4th-graders was 24 points. b. In SY 2011 the national average mathematics scale score for non-ELL 8thgraders was 286. In the same year, the national average mathematics scale score for ELL 8th-graders was 244. The SY 2011 mathematics achievement gap between non-ELL and ELL 8th-graders was 42 points. c. In SY 2010 the national average mathematics scale score for non-ELL 12thgraders was 154. In the same year, the national average mathematics scale score for ELL 12th-graders was 117. The SY 2010 mathematics achievement gap between non-ELL and ELL 12th-graders was 38 points. 83. public schools. New Mexico is one of 8 states with the highest percentage of ELL students in its

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84.

In SY 2010-2011 52,029 students in New Mexico public schools were ELLs,

comprising 15.7% of all students. 85. In school years 2006-2009 New Mexico year-end mean reading scale scores for

non-ELL 4th- ,8th- and 11th-graders were higher than their ELL peers scores. a. During these years, the year-end reading mean scale score for New Mexico non-ELL 4th-graders was 644.7. During the same years, the year-end reading mean scale score for New Mexico ELL 4th-graders was 621.9. The reading achievement gap between non-ELL and ELL 4th-graders was 22.8 points. b. During these years, the year-end reading mean scale score for New Mexico non-ELL 8th-graders was 698.1. During the same years, the year-end reading mean scale score for New Mexico ELL 8th-graders was 669.8. The reading achievement gap between non-ELL and ELL 8th-graders was 28.3 points. c. During these years, the year-end reading mean scale score for New Mexico non-ELL 11th-graders was 623.7. During the same year, the year-end reading mean scale score for New Mexico ELL 11th-graders was 597.5. The reading achievement gap between non-ELL and ELL 11th-graders was 26.2 points. 86. In school years 2006-2009 New Mexico year-end mean mathematics scale scores

for non-ELL 4th- ,8th- and 11th-graders were higher than their ELL peers scores. a. During these years, the year-end mathematics mean scale score for New Mexico non-ELL 4th-graders was 633.5. During the same years, the year-end mathematics mean scale score for New Mexico ELL 4th-graders was 618.0. The mathematics achievement gap between non-ELL and ELL 4th-graders was 15.5 points.

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b. During these years, the year-end mathematics mean scale score for New Mexico non-ELL 8th-graders was 704.8. During the same years, the year-end mathematics mean scale score for New Mexico ELL 8th-graders was 682.8. The mathematics achievement gap between non-ELL and ELL 8th-graders was 22 points. c. During these years, the year-end mathematics mean scale score for New Mexico non-ELL 11th-graders was 587.0. During the same years, the year-end mathematics mean scale score for New Mexico ELL 11th-graders was 563.2. The mathematics achievement gap between non-ELL and ELL 11th-graders was 23.8 points. 87. The achievement gap between ELL- and non-ELL students tends to widen as

students progress through grades, and ultimately results in a disparity in high-school graduation rates. a. The graduation rate for all students in New Mexico for SY 2010-2011 was 63%. b. The graduation rate for students in New Mexico with limited English proficiency in SY 2010-2011 was only 56%. FACTS REGARDING OVERALL SUFFICIENCY OF EDUCATIONAL FUNDING 88. Over the past 30 years, since the 1986/1987 school year, the portion of the state

budget which is dedicated to education has declined, and the amount of per pupil expenditures has also declined, leaving New Mexico schools more and more unable to provide necessary resources to sufficiently educate New Mexico children.

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89.

At the same time, as a result of the decrease in the percentage of funding for

public schools, the percentage of total revenue for matters which are not mandated by the New Mexico Constitution has necessarily increased since 1986-1987. In 1986-1987, the public schools in New Mexico were appropriated 51.60% of the states total recurring budgeted revenue. 90. In 2000-2001, public schools in New Mexico were receiving 46.37% of the states

total recurring budgeted revenue. 91. In the budget for 2014-2015, passed in the 2014 legislative session, the public

education share of the states recurring revenue is approximately 44.29%. 92. In 2006, the State of New Mexico created a bi-partisan Funding Formula Study

Task Force made up of New Mexico legislators, school board members, union representatives, and school administrators that contracted with the American Institute for Research (AIR) to conduct a 2-year study on the sufficiency of educational funding in New Mexico public schools as well as its distribution mechanism. 93. In 2008, the AIR published An Independent Comprehensive Study of the New

Mexico Public School Funding Formula, which concluded that state support for public schools should increase by 14.5 percent (or $334.7 million in 2007-08) to achieve sufficiency in New Mexico. That conclusion was the result of a 16 month effort by the AIR to determine the cost of a sufficient education for all public school students in New Mexico, which started with a careful analysis of what constitutes a sufficient education. 94. The bi-partisan Funding Formula Study Task Force issued its final finding: The

bottom line estimates derived from this study suggest that the state support for public schools should increase by 14.5% (or $334.7 million in 2007-08 dollars) to achieve sufficiency in New

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Mexico. Since AIR issued its report in 2008, the budget for public schools actually decreased, for several years. 95. The consistent decline in the overall percentage of state revenues appropriated to

public school education since 1987 and the failure of the New Mexico Legislature to implement any of the numerous studies related to the overall sufficiency of funding of public education in New Mexico has resulted in a system of public education in New Mexico that is insufficient and fails to satisfy the educational mandate. FACTS REGARDING LACK OF SUFFICIENCY DUE TO INADEQUATE FUNDING FORMULA FOR PUBLIC EDUCATION 96. In 1974, the New Mexico Legislature enacted a funding formula to distribute

public school funding to school districts. This formula is known as the State Equalization Guarantee (SEG) , and funding to the states school districts is appropriated through the SEG. 97. The funding formula is the mechanism that distributes 95% of the operational

revenue for all public schools in New Mexico. 98. A major objective of the states current formula is to achieve equitable funding

between school districts and state charter schools. 99. To achieve equitable funding between school districts and state charter schools,

the states formula provides each district and charter school a certain base amount of funding for all studentsand, recognizing that some districts face additional costs due to their size, geographic location, and the makeup of their student population, provides additional funding to meet these needs. 100. In 1997, the state legislature recognized that low-income students and those for

whom English is a second language (classified as ELL) require additional education resources. To meet these needs, the legislature added an at-risk index to the states funding formula that 18

directs additional resources to districts based upon the size of their low-income and ELL student populations. There are 24 components to New Mexico Educational Funding formula while other states, on average, have 14 components. 101. In 2008 AIR, pursuant to its contract with the Funding Formula Study Task Force,

recommended, in addition to an overall increase in funding for the schools, a simplified funding formula and a smaller and simplified set of pupil needs weighting factors to achieve an equitable distribution of funds according to pupil need. 102. The AIR recommended funding formula included a basic per pupil cost, which

was then multiplied by pupil need components including the following four separate measures: a. Student poverty measured by the proportion of pupils eligible for the free or reduced lunch program; b. English learner status measured by the proportion of pupils who are classified as English learners (limited or non-English speaking); c. Student mobility measured by the proportion of total enrollment that is mobile (students who for one reason or another had moved into or out of the school); and d. Special education measured by the proportion of the total enrollment identified as eligible for special education services. 103. Legislation was introduced in both the 2008 and 2009 legislative sessions

implementing the recommendations of the Funding Formula Study Task Force and passed the House of Representatives but never came to the floor of the New Mexico Senate for vote and, therefore, failed in both the 2008 and 2009 legislative sessions. 104. In November 2011, the Legislative Finance Committee (LFC) and the

Legislative Education Study Committee (LESC) in a joint study issued in evaluation of the

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public school formula in advance of the 2012 legislative session (joint study). The joint study was a candid assessment of funding formula which included the following statements and conclusions in its executive summary: a. New Mexico needs to update the funding formula to ensure efficient allocation of resources aligned with recent education policy. The formulas 24 components make it overly complicated and difficult to administer, and a number of these components generate a few units that have a minimal impact on school funding. b. Some components do not effectively recognize the cost difference or fairly allocate funding for serving at-risk students. Past LFC reports found the formula does not effectively steer resources to the incremental cost needed to educate at-risk students. Other states direct more funds to their at-risk students that are English language learners and/or living in poverty. Those states also used simplified metrics to identify these students rather than the formulas at-risk index, which is a broken component that, when calculated correctly, would direct more funds to districts with fewer at-risk students. c. The funding formula elements incentivize school practices that run contrary to recent research and policy goals. The formula incentivizes districts to identify high levels of class C or D special education (SpEd) students. These SpEd designations distribute more money through the formula and discourage preventative district interventions that keep children out of special education programs. The SpEd funding structures also incentivize over-hiring of ancillary staff. The 2008 AIR funding formula evaluation recommended that the state adopt a census-based special education funding mechanism that other states use to eliminate these incentives. Additionally,

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the funding formula incentivizes districts to hire teachers with more experience and education to increase the districts T&E index value, an important multiplying factor in the formula. This incentive exists despite no clear body of recent research that concludes highly educated teachers with more experience increase students achievement. d. Size adjustments do not effectively target subsidies for scale inefficiencies and invite inappropriate formula chasing. District size adjustments do not adequately compensate districts to make up for their administrative inefficiencies, and school size adjustments incentivize districts to create inefficient school structures. e. The at-risk index is too complex and misallocates funds even when calculated accurately. Among the factors in the at-risk index is the mobility rate, but the PED does not calculate the mobility rate accurately, leading to a misallocation of at-risk funds. The mobility rate is currently calculated using seven enrollment codes, assigned to students based on enrollment status. However, due to federal requirements asking for more specific enrollment and withdrawal data, the PED requires districts to track student enrollment through one of 27 codes. Students with enrollment codes not used in the current mobility rate are not counted in the districts calculation, creating an inaccurate mobility rate used in the at-risk index. For example, a student who withdraws from school and whose whereabouts are unknown is counted under the current mobility formula, but a student who withdraws to attend a Bureau of Indian Education school or to pursue a general education degree or vocational program is not counted.

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f. The current formula does not direct adequate resources to cover the increased costs needed to educate at-risk students. Other states direct significantly more funds to their at-risk students that are living in poverty or those that are English Language Learners. In 2011, New Mexicos at-risk student index generated an additional 10% in funding for serving low-income students. Other states direct up to 50% in additional funds for students living in poverty. 105. In the January 2014 Report to the New Mexico Legislature, the LFC again

emphasized the need to improve outcomes for at-risk students in New Mexicos public education system. The 2014 LFC report stated: a. In New Mexico, a relatively small amount of public education funding formula is allocated to the states most needy students. b. Despite the significant impact that poverty and English language fluency have on academic achievement, only 3% of the total public education funding formula is directed to students at-risk of failing. c. New Mexico and Mississippi direct the least amount of incremental funding to servicing at-risk students despite the large percentages of these students in each state. Both New Mexico and Mississippi consistently rank in the bottom of comparative studies of student outcomes. d. States vary on the percentage on incremental dollars allocated for at-risk students, but in some instances other states provide up to 50% more funding for at-risk students. e. To move the needle on student achievement, at-risk students must be identified early with valid tools and appropriate educational strategies must be implemented

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that will assist in closing the achievement gap and improving outcomes for at-risk students. 106. The New Mexico Legislature has failed to implement the recommendations of the

2008 New Mexico Funding Formula Study Task Force, the AIR report, the 2011 report of the joint study of the LFC and LESC and, most recently, the January 2014 LFC report. 107. In the 2014 legislative session, the New Mexico Legislature appropriated $2.74

billion for public education, an increase of $171 million. When adjusted for inflation, the increase approximately restored public education funding to the 2008 level. The public education share of the states recurring revenue after the increase of $171 million is approximately 44.29% which remains significantly below the 51.60% share in the 1986-1987. 108. Governor Susana Martinez line item vetoed $15 million appropriated for at-risk

children from the $171 million increase in public education passed in the 2014 legislative session. 109. The inadequacies of the current funding formula, and specifically its failure to

allocate sufficient resources for students living in poverty and learning English language, results in a system of public education in New Mexico which is insufficient to meet the needs of New Mexico public school students. FACTS RELATING TO FAILURE OF UNIFORMITY 110. 111. A recent focus of PED is below the line funding of educational projects. Below the line funding consists of educational funding outside the public

school educational funding formula that is distributed at the discretion of the PED to school districts in New Mexico on the basis of grant applications submitted to PED.

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112.

In its January 2014 report the LFC recommended relying on the funding formula

to equitably distribute funding to school districts and charter schools while limiting below the line initiatives controlled by PED to existing in programs that have demonstrated improved student outcomes. 113. In the 2014 legislative session, below the line appropriations increased to $107

million, up $38 million or 56% and include $27 million more for the initiatives of Governor Susana Martinez and PED. 114. The inordinate emphasis and expansion of the below the line funding for public

educational funding violates the uniformity requirement of the New Mexico constitutions educational mandate. CAUSES OF ACTION Count I Overall Funding of Public School Education in New Mexico: Violation of Sufficiency Requirement of Article XII, Section 1 of the New Mexico Constitution 1. forth herein. 2. Art. XII, Section 1 of the New Mexico Constitution states: a uniform system of Plaintiffs reallege and incorporate by reference all paragraphs above as if fully set

free public schools sufficient for the education of, and open to, all the children of school age in the state shall be established and maintained. 3. Defendants are violating the sufficiency provision of this clause by not providing

enough funding for New Mexico children to have an opportunity to succeed in school. 4. The amount of money appropriated to public school education, especially in light

of the steady decline of the percentage of revenues appropriated to public school education in

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New Mexico and the low educational outcomes of New Mexican students, violates the sufficiency provision of the educational mandate of the New Mexico Constitution. COUNT II Modification of the Funding Formula for Public Education: Violation of Sufficiency and Uniformity Requirements of Article XII, Section 1 of the New Mexico Constitution 1. forth herein. 2. Art. XII, Section 1 of the New Mexico Constitution states: a uniform system of Plaintiffs reallege and incorporate by reference all paragraphs above as if fully set

free public schools sufficient for the education of, and open to, all the children of school age in the state shall be established and maintained. 3. Defendants violate Plaintiffs right to a sufficient and uniform education by not

directing sufficient funds to meet the needs of low income children and ELL children. 4. The failure to correct the well-documented inadequacies of New Mexicos

current funding formula, and specifically the failure to provide additional funding in the formula for low income and ELL students, violates the sufficiency and uniformity provisions of the educational mandate of the New Mexico Constitution. COUNT III: Below the Line Funding of Education: Violation of Uniformity Provision of Art XII, Section 1 1. forth herein. 2. Art. XII, Section 1 of the New Mexico Constitution states: a uniform system of Plaintiffs reallege and incorporate by reference all paragraphs above as if fully set

free public schools sufficient for the education of, and open to, all the children of school age in the state shall be established and maintained. 25

3.

Defendants recent trend of expanding the below the line funding of educational

initiatives in New Mexico violates the uniformity provision of the educational mandate of the New Mexico Constitution. PRAYER FOR RELIEF Plaintiffs respectfully request the court to enter a declaratory judgment, pursuant to the New Mexico Declaratory Judgment Act, NMSA 1978 44-6-1, et seq. to resolve an actual controversy with respect to their rights, status, and other legal relations with respect to the New Mexico system of public school education under Article XII 1 of the New Mexico constitution. Plaintiffs further request, pursuant to the Declaratory Judgment Act, and the courts inherent power in equity, that the Court enter further injunctive relief. Specifically, plaintiffs seek a judgment: a. Declaring that the current levels of public school funding in New Mexico violate the sufficiency provisions of the educational mandate of the New Mexico Constitution; b. Declaring that the current distribution of public school funding violates the sufficiency and uniformity provisions of the education mandate of the New Mexico Constitution; c. Declaring that in addition to providing more funding to public schools in New Mexico, Defendants must make adjustments to the funding formula to provide additional funding for students living in poverty and learning the English language;

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d. Declaring that inordinate expansion of below the line funding of public school education in New Mexico violates the uniformity requirement of the educational mandate of the New Mexico Constitution; e. Enjoining the Defendants to make a budget proposal and funding formula plan before the next legislative session to sufficiently, uniformly and equitably fund the public schools commensurate with this ruling and the New Mexico Constitution; f. Enjoining Defendants to monitor the additional money provided to the public schools to ensure that the money is used to increase educational opportunities for low income and ELL students; g. Retaining jurisdiction to ensure that the Defendants budget proposal and plan complies with the New Mexico Constitution and to ensure that a constitutional public school budget is soon implemented; and h. Granting any further and other relief the court deems just and proper. DATED March 19, 2014. Respectfully Submitted: THE ROSEBROUGH LAW FIRM, P.C. By ______________________________ Robert F. Rosebrough 101 West Aztec Ave., Suite A P.O. Box 1027 Gallup, New Mexico 87305-1027 (505) 722-9121 Fax: (505) 722-9490 Attorney for Plaintiffs Wilhelmina Yazzie and Xavier Nez

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And NEW MEXICO CENTER ON LAW & POVERTY Gail Evans 720 Vassar Dr. NE Albuquerque, New Mexico 87106 (505) 255-2840 Fax: (505) 255-2778 Attorney for Plaintiffs James Martinez and Marcos Martinez, Patrick Barrett and Genesis Canuto, Rodney Bowe, Justus Bowe and Solomon Bowe

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